Gujarat High Court Case Information System
Print
CR.A/2234/2010 8/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 2234 of 2010
=========================================================
STATE
OF GUJARAT - Appellant(s)
Versus
GULABRAY
RIJUMAL BHARVANI, OWNER OF JAY ANKE COLDDRINKS & 1 - Opponent(s)
=========================================================
Appearance
:
MR.
H.L. JANI, ADDL. PUBLIC PROSECUTOR
for
Appellant(s) : 1,
None for Opponent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 03/03/2011
ORAL
ORDER
The
appellant-State has preferred the present appeal under Section 378
(4) of the Code of Criminal Procedure, 1973 against the Judgment and
Order of acquittal dated 31.7.2010 passed by the learned Chief
Judicial Magistrate,Dahod, in Criminal Case No.2282 of 2005 for the
offences punishable under Section 16 of the Prevention of Food
Adulteration Act, 1954, whereby the learned Magistrate has acquitted
the respondents-original accused of the charges levelled against
them by giving benefit of doubt.
The
short facts of the prosecution case is that on 7.6.2005 the
complainant-Food Inspector along with his helper had visited the
shop of the respondent no.1-original accused. At that time
respondent no.2 was present who is son of respondent no.1. It is
the case of the complainant that at that time the complainant
intercepted the respondent No.2 and called panch witness. It is the
case of the complainant that after giving his identity as Food
Inspector, the complainant purchased 6 x 300 m.l. of cold drink
i.e. orange in presence of panch witness as sample and also paid
consideration for the same. It is also the case of the complainant
that after following due procedure of sealing, the sample was sent
for analysis. On examination, the Public Analyst found that the said
sample was adulterated. Therefore, after following the due
procedure, complaint was filed against the respondents-accused in
the Court of learned Chief Judicial Magistrate, Dahod for the
offences punishable under Section 16 of the Prevention of Food
Adulteration Act, 1954.
Thereafter,
upon service of summons, the respondents-accused appeared before the
Court and as the accused not pleaded guilty, the trial commenced.
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. Thereafter, further statement of
respondents-accused was recorded wherein the accused submitted that
as he was not vacating the house, false complaint is filed against
him by the owner.
Thereafter,
after considering the oral as well as documentary evidence, the
learned Magistrate has acquitted the respondents-original accused
from the charges alleged against him by his Judgment and Order of
acquittal dated 31.7.2010.
Being
aggrieved and dissatisfied with the said Judgment and Order of
acquittal dated 31.7.2010 passed by the learned Chief Judicial
Magistrate, Dahod, in Criminal Case No.2282 of 2005, the
complainant-Food Inspector has preferred the above mentioned
Criminal Appeal.
Heard
learned counsel for the parties.
Mr.
Jani, learned counsel for the appellant, has contended that the
Judgment and Order of acquittal passed by 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 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. He, 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
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. 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.
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.
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, observed that the analysis was carried out by the expert
after few months. The Trial Court has also observed that the test
which was obtained by the experts was Microscopy test which is not
permissible in the eye of law. There is no sufficient evidence to
show that the analysis was carried out on the same day. The leaned
trial Judge has also observed that the Sanctioning Authority has
without looking into the papers properly, given sanction to file
complaint. The trial Court has 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. Prosecution has failed to prove the
case beyond reasonable doubt against the respondents-original
accused.
Thus,
the appellant could not bring home the charges against the
respondents-original accused in the present appeal. The prosecution
has miserably failed to prove the case against the
respondents-original accused beyond reasonable doubt. Thus, from the
evidence itself it is established that the prosecution has not
proved its case beyond reasonable doubt.
Mr.
Jani, 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
respondents-original accused of the charges levelled against him by
giving benefit of doubt.
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 dismissed. The
Judgment and Order of acquittal dated 31.7.2010 passed by the
learned Chief Judicial Magistrate, Dahod in Criminal Case No.2282 of
2005 is hereby confirmed. Bail bond, if any, shall stands
discharged. Record and Proceedings, if any, be sent back to the
trial Court concerned, forthwith.
(Z.
K. Saiyed, J)
Vahid
Top