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CR.A/1134/2010 8/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1134 of 2010
=========================================================
GIRISH
B VORA - Appellant(s)
Versus
BIRJUBHAI
KISHORBHAI PATEL & 1 - Opponent(s)
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Appearance
:
MS
SHAILI A KAPADIA for
Appellant(s) : 1,
None for Opponent(s) : 1,
PUBLIC PROSECUTOR
for Opponent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 13/07/2010
ORAL
ORDER
The
appellant has preferred this Appeal under Section 378 of the Code of
Criminal Procedure, 1973 against the judgment and order of acquittal
dated 29th August 2009 passed by the learned Metropolitan
Magistrate, Court No.8, Ahmedabad, in Criminal Case No.29 of 2001
for the offences punishable under the Prevention of Food
Adulteration Act, 1954, whereby the learned Magistrate has acquitted
the respondent no.1-accused of the charges levelled against him.
The
short facts of the prosecution case is that the appellant is serving
as a Food Inspector in the Health Flying Squad Department of
Ahmedabad Municipal Corporation. It is the case of the appellant
that on 14th December 1999, the appellant along with his
Peon visited the shop of respondent no.1-accused, wherein the
respondent no.1-accused was present and was doing business of milk.
The appellant had purchased two bags of pasturised toned milk of
‘Anupam Taza’ brand after paying consideration. It is also the case
of the prosecution that after following due procedure of sealing,
the sample was sent to the Public Health Laboratory of Ahmedabad
Municipal Corporation for analysis. On examination, the Public
Analyst found that the said sample was adulterated and not upto the
standard as prescribed under the Rules. Therefore, after following
the due procedure, complaint was filed against the respondent
no.1-accused in the Court of learned Metropolitan Magistrate,
Ahmedabad.
Thereafter
the trial was conducted before the learned Magistrate. To prove the
case of the prosecution, prosecution has produced oral as well as
documentary evidence. After considering the oral as well as
documentary evidence, the learned Magistrate has acquitted the
respondent no.1-accused from the charges alleged against him by the
judgment and order of acquittal dated 29th August 2009.
Being
aggrieved and dissatisfied with the said judgment and order of
acquittal dated 29th August 2009 passed by the learned
Metropolitan Magistrate, Court No.8, Ahmedabad, in Criminal Case
No.29 of 2001, the appellant-Food Inspector, has preferred the above
mentioned Criminal Appeal.
I
have heard Ms.Shaili Kapadia, learned counsel appearing on behalf of
the appellant and learned Additional Public Prosecutor. I have also
gone through the papers and the judgment and order passed by the
learned Magistrate.
Ms.Kapadia
has contended that the judgment and order of the learned Magistrate
is not proper, legal and it is erroneous. She has also argued that
the learned Magistrate has not considered the evidence of the
witnesses. She has argued that the learned Magistrate has not
considered the fact that the Food Inspector has followed the proper
procedure while collecting the sample, etc. are just and proper. The
sample was seized and sealed properly. Yet, the learned Magistrate
has not considered the evidence of prosecution. She, therefore,
contended that the order of acquittal passed by the learned
Magistrate is without appreciating the facts and evidence on record
and is required to be quashed and set aside by this Hon’ble Court.
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
respondent-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. Hence, this
appeal requires to be dismissed.
Even
in a recent decision of the Apex Court in the case of State
of Goa Vs. 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 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.
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.
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 reasoning, 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 Vs 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.
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.
I
have gone through
the order of acquittal passed by the learned Magistrate. I have also
perused the oral as well as documentary evidence led before the
trial Court and also considered the submissions made by learned
advocates for the parties.
The
trial Court has, after appreciating the oral as well as documentary
evidence, found that complaint was filed after a period of 18 months
from the date of collecting the sample. It is also observed that the
prosecution has breached the mandatory provision of Section 13(2) of
the Act. Delay is also not sufficiently explained by the
prosecution. The trial Court has also observed that the prosecution
has not followed the mandatory provisions of Section 14 of the Act.
Thus, when the prosecution has failed to prove the case against the
respondent no.1-accused beyond reasonable doubt, benefit of doubt
ought to have been given to the respondent no.1-accused. The trial
Court has also observed that there are serious lacuna in the oral as
well as documentary evidence of prosecution. Nothing is produced on
record of this appeal to rebut the concrete findings of the Trial
Court.
Thus,
the appellant could not bring home the charges against the
respondent no.1-accused in the present appeal. The prosecution has
miserably failed to prove the case against the respondent
no.1-accused. Thus, from the evidence itself it is established that
the prosecution has not proved its case beyond reasonable doubt.
Ms.Kapadia,
learned counsel for the appellant, is not in a position to show any
evidence to take a contrary view in 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.
In
above view of the matter, I am of the considered opinion that the
trial Court was completely justified in acquitting the respondent
no.1-accused of the charges levelled against him.
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.
I
am, therefore, in complete agreement with the findings, ultimate
conclusion and the resultant order of acquittal recorded by the
trial Court and hence find no reasons to interfere with the same.
Hence the appeal is hereby summarily dismissed.
Record and Proceedings to be sent back to the trial Court,
forthwith. Bail bonds, if any, shall stands cancelled.
(Z.
K. Saiyed, J)
Anup
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