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CR.A/2084/2009 3/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 2084 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
JUNAS
JANI HOLEPOTRA - Opponent(s)
=========================================================
Appearance
:
MR.
MG. NANAVATI, LD. ADDL.PUBLIC
PROSECUTOR for
Appellant(s) : 1,
None for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 20/01/2010
ORAL
JUDGMENT
1.0
The present appeal, under section 378 of the Code of Criminal
Procedure, 1973, is directed against the judgment and order of
acquittal dated 20.5..2009 passed by the learned JMFC,Bhuj, in
Criminal Case No. 647/1999 whereby the accused has been acquitted
of the charges under sec. 7(1)(5) and 2(1)(a) (a) (m)of the
Prevention of Food Adulteration Act, leveled against him.
2.0
The brief facts of the prosecution case are as under:
2.1
It is the case of the prosecution that Food Inspector Shri R.V.
Dodia, on 9.8.1996 visited the shop of respondents-accused, and has
taken the sample of Buffalo Milk and purchased the same and
paid the price, and after following the procedure the sample was
sent to the Public Analyst, Vadodara for analysis and as per the
report of the Public Analyst, the sample was found to be adulterated.
On these facts, the complaint was filed before the Court, which was
numbered as Criminal Case No. 647/1999 against the respondent. At the
time of trial, evidence was led before the trial Court. The documents
were produced and oral evidence of the witnesses were also recorded
by the trial Court and after considering the oral as well as
documentary evidence, the learned Magistrate has passed the order of
acquittal which is impugned in this appeal.
3.0
It was contended by learned APP for the appellant that the judgment
and order of the learned Magistrate is not proper, legal and it is
erroneous. He has also argued that the learned Magistrate has not
considered the evidence of the witnesses. He has argued that Food
Inspector has followed the rules prescribed by law and he has also
followed the procedure of taking the sample and the contents of Form
No. 6 etc are just and proper. The sample was seized and sealed
properly. Yet, the learned Magistrate has not considered the evidence
of prosecution. Therefore, the order impugned in this appeal passed
by the learned Magistrate requires to be quashed and set aside.
4.
It is 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 Appellate Court is in agreement with the
reasons assigned by the trial court acquitting the accused. In the
instant case, this Court is in full agreement with the reasons given
and findings recorded by the trial Court while acquitting the
respondents- accused and adopting the said reasons and for the
reasons aforesaid, in my view, the impugned judgment is just, legal
and proper and requires no interference by this Court at this stage.
Hence, this appeal requires to be dismissed.
5.
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 judgment 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.
6.
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.
7.
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.
8. Thus,
in case the appellate court agrees with the reasons and the opinion
given by the lower court, then the discussion of evidence is not
necessary.
9. 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
Advocate for the appellant. The trial court while considering the
oral as well as documentary evidence has clearly observed that the
prosecution has not followed the mandatory provisions during the
sealing and seizing the sample. The prosecution has failed to prove
its case beyond reasonable doubt. The Panch witness has turned
hostile. Even it shows that prosecution has failed to follow the
provision of Rule 22 of the Act , and sample taken by the complainant
was not taken as per the Rule 14 and prosecution has also not
followed the provision of Section 13(2). Nothing is produced or
pointed out to rebut the conclusion of the Trial Court. Thus, from
the evidence itself it is established that the prosecution has not
proved its case beyond reasonable doubt.
10. Learned
APP for the appellant 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.
11.
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.
12.
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.
13. 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. R & P to be sent back to the trial
Court, forthwith. Bail bond, if any, stands cancelled.
(Z.K.
SAIYED, J.)
Pawan
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