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CR.A/837/2009 4/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 837 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
STATE
OF GUJARAT - Appellant(s)
Versus
BHARATBHAI
DEVRAJBHAI SOJITRA (VENDOR & NOMINEE) & 1 - Opponent(s)
=========================================
Appearance
:
MR HL JANI
ADDITIONAL PUBLIC
PROSECUTOR for Appellant(s) : 1,
MR YN RAVANI for Opponent(s) : 1
- 2.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 18/01/2010
ORAL
JUDGMENT
1. The
present appeal, under section 378(4) of the Code of Criminal
Procedure, 1973, is directed against the judgment and order of
acquittal dated 26.12.2008 passed by the learned 2nd
Additional Civil Judge and Judicial Magistrate, First Class, Nadiad,
in Criminal Case No.3 of 2005, whereby the accused have been
acquitted from the charges leveled against them.
2. The
brief facts of the prosecution case are as under:
2.1 The
Food Inspector visited on 26.7.2005 shop of the respondent
accused No.1 running in the name of M/s. Damini Oil Industries,
Pipalata, Dist. Kheda along with panch. The Food Inspector after
issuing oral as well as notice in Form No.VI to respondent No.1
purchased refined cottonseed oil. The procedure of taking sealing and
sending the sample was meticulously followed as per the mandatory
provisions of the Prevention of Food Adulteration Act. The sample was
for analysis to the Public Analyst and report of the Public Analyst
was sent to the respondents. After verifying the report of analysis,
the sample was not found as per the standard. Therefore, complaint
was filed for the offences under Section 2(1-a) (m), 7(1) (5) and 16
of the Prevention of Food Adulteration Act.
2.2 Therefore,
Criminal Case No.3 of 2005 with respect to the aforesaid offence was
filed against the respondents before the learned 2nd
Additional Civil Judge and Judicial Magistrate, First Class, Nadiad.
During the course of investigation, chargesheet was filed against
them before the court of learned trial Court.
2.3 To
prove the case against the present accused, the prosecution has also
produced documentary evidence and examined two witnesses. After
hearing the parties and perusing the record, the learned trial Court
was pleased to acquit the accused vide his judgment dated 26.12.2008.
3. Being
aggrieved by and dissatisfied with the aforesaid judgment and order
passed by the learned trial Court the appellant has preferred the
present appeal.
4. It
was contended by learned APP Mr. Jani that the judgment and order of
the trial Court is against the provisions of law; the trial Court has
not properly considered the evidence led by the prosecution and
looking to the provisions of law itself it is established that the
prosecution has proved the whole ingredients of the evidence against
the present respondent. Learned APP has also taken this court
through the oral as well as the entire documentary evidence.
4.1 Thus,
it is a settled principle that while exercising appellate power, even
if two reasonable conclusions are possible on the basis of the
evidence on record, the appellate court should not disturb the
finding of acquittal recorded by the trial court.
4.2 Even
in a recent decision of the Apex Court in the case of State
of Goa V. Sanjay Thakran & Anr. Reported in (2007)3 SCC 75,
the Court has reiterated the powers of the High Court in such cases.
In para 16 of the said decision the Court has observed as
under:
16. From
the aforesaid decisions, it is apparent that while exercising the
powers in appeal against the order of acquittal the Court of appeal
would not ordinarily interfere with the order of acquittal unless the
approach of the lower Court is vitiated by some manifest illegality
and the conclusion arrived at would not be arrived at by any
reasonable person and, therefore, the decision is to be characterized
as perverse. Merely because two views are possible, the Court of
appeal would not take the view which would upset the judgement
delivered by the Court below. However, the appellate court has a
power to review the evidence if it is of the view that the conclusion
arrived at by the Court below is perverse and the Court has committed
a manifest error of law and ignored the material evidence on record.
A duty is cast upon the appellate court, in such circumstances, to
re-appreciate the evidence to arrive to a just decision on the basis
of material placed on record to find out whether any of the accused
is connected with the commission of the crime he is charged with.
4.3 Similar
principle has been laid down by the Apex Court in the cases of
State
of Uttar Pradesh Vs. Ram Veer Singh & Ors, reported in 2007 AIR
SCW 5553
and in Girja
Prasad (Dead) by LRs Vs. state of MP, reported in 2007 AIR SCW 5589.
Thus, the powers which this Court may exercise against an order of
acquittal are well settled.
4.4 It
is also a settled legal position that in acquittal appeal, the
appellate court is not required to re-write the judgment or to give
fresh reasonings, when the reasons assigned by the Court below are
found to be just and proper. Such principle is laid down by the Apex
Court in the case of State
of Karnataka Vs. Hemareddy, reported in AIR 1981 SC 1417
wherein it is held as under:
&
This court
has observed in Girija Nandini Devi V. Bigendra Nandini Chaudhary
(1967)1 SCR 93: (AIR 1967 SC 1124) that it is not the duty of the
appellate court when it agrees with the view of the trial court on
the evidence to repeat the narration of the evidence or to reiterate
the reasons given by the trial court expression of general agreement
with the reasons given by the Court the decision of which is under
appeal, will ordinarily suffice.
5. I
have gone through the judgment and order passed by the trial court. I
have also perused the oral as well as documentary evidence led by the
trial court and also considered the submissions made by learned APP
for the appellant. It appears from the judgment that panch witness –
Bhanubhai Melabhai Bhoi at Exhibit 44, who is turned hostile before
the learned trial Court. The complainant has failed to prove his
contention stated in the panchanama and even by cogent documentary
evidence. The complainant has to failed to prove to follow the
mandatory provisions Rule 14 and Section 20(1) of the Act. Thus, from
the evidence itself it is established that the complainant has not
proved its case beyond reasonable doubt.
6. Learned
APP is not in a position to show any evidence to take a contrary view
of the matter or that the approach of the trial court is vitiated by
some manifest illegality or that the decision is perverse or that the
trial court has ignored the material evidence on record.
7. In
the above view of the matter, I am of the considered opinion that the
trial court was completely justified in acquitting the respondent of
the charges leveled against him.
8. I
find that the findings recorded by the trial court are absolutely
just and proper and in recording the said findings, no illegality or
infirmity has been committed by it.
9. I
am, therefore, in complete agreement with the findings, ultimate
conclusion and the resultant order of acquittal recorded by the court
below and hence find no reasons to interfere with the same. Hence the
appeal is hereby dismissed. Bail bond, if any, stands cancelled.
Record and proceedings to be sent back to trial Court, forthwith.
(Z.K.
SAIYED, J.)
ynvyas
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