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CR.A/132/2011 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 132 of 2011
=========================================
AHMEDABAD
MUNICIPAL CORPORATION THROUGH - Appellant(s)
Versus
LAXMANBHAI
MOHANLAL NAGAR & 1 - Opponent(s)
=========================================
Appearance :
MS
JIRGA D JHAVERI for
Appellant(s) : 1,
None for Opponent(s) : 1,
MR HL JANI, LD.
ADDL. PUBLIC PROSECUTOR for Opponent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 25/02/2011
ORAL
ORDER
The
appellant-Ahmedabad Municipal Corporation through Food Inspector has
preferred the present appeal under Section 378 of the Code of
Criminal Procedure, 1973 against the Judgment and Order of acquittal
dated 16th April 2010 passed by the learned Metropolitan
Magistrate, Court No.8, Ahmedabad (Evening Court), in Criminal Case
No.99 of 2005 for the offences punishable under Section 16(1)(a)(i)
of the Prevention of Food Adulteration Act, 1954, whereby the
learned Magistrate has acquitted the respondent No.1-original
accused of the charges levelled against him by giving benefit of
doubt.
The
short facts of the prosecution case is that on 15th
February 2005 the complainant-Food Inspector along with his Peon has
visited Shri Gopal Krishna Sweet Mart, Shahpur, Ahmedabad. It is the
case of the complainant that at that time the respondent
No.1-accused was present and was doing business. It is the case of
the complainant that after giving his identity as Food Inspector,
the complainant purchased 900 gms. of Three-in-one-Barfi 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 respondent No.1-accused in the Court of
learned Metropolitan Magistrate, Court No.8, Ahmedabad (Evening
Court) for the offences punishable under Section 16 of the
Prevention of Food Adulteration Act, 1954.
Thereafter,
upon service of summons, the respondent No.1-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 respondent No.1-accused was recorded under Section 313
of the Code of Criminal Procedure wherein the accused had denied the
case of the prosecution. Neither the respondent No.1-accused
examined himself nor examined any defence witnesses.
Thereafter,
after considering the oral as well as documentary evidence, the
learned Magistrate has acquitted the respondent No.1-original
accused from the charges alleged against him by his Judgment and
Order of acquittal dated 16th April 2010.
Being
aggrieved and dissatisfied with the said Judgment and Order of
acquittal dated 16th
April 2010 passed by the learned Metropolitan Magistrate, Court
No.8, Ahmedabad, in Criminal Case No.99 of 2005, the
complainant-Food Inspector has preferred the above mentioned
Criminal Appeal.
Heard
Ms.Jirga Jhaveri, learned counsel for the appellant and Mr.H.L.
Jani, learned Additional Public Prosecutor, appearing on behalf of
the respondent No.2-State.
Ms.Jhaveri,
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. 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. 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 complainant has not stated as to whether
he had added preservative or not in the sample. On the contrary, in
his cross-examination, the complainant admitted that he has not
added the preservative. Even he has admitted that sample has to be
taken in glass jar instead of Box. Thus, in the present case sample
was not taken properly by the complainant. It is also observed by
the learned Magistrate that sample was analysed by the CFL on 15th
February 2005 I.e. after about four months from the date on which
sample was taken. The prosecution has failed to show as to how the
said sample was stored in between period. It is also observed by the
learned Magistrate that there might be chance that if the
sample-Barfi was packed in any box and if preservative-Formalin was
not added in the sample, it might be adulterated. Thus, if there is
any change in the sample because of nature, then respondent-accused
cannot be held guilty for the same and benefit of doubt may be given
to the respondent-accused. It is also observed by the learned
Magistrate that Sanctioning Authority has given sanction without
application of mind. It is also observed by the learned Magistrate
that prosecution has failed to follow Section 20 of the Act. Thus,
prosecution has failed to prove its case beyond reasonable doubt
against the respondent No.1-original accused. 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 respondent No.1-original accused.
Thus,
the appellant could not bring home the charges against the
respondent No.1-original accused in the present appeal. The
prosecution has miserably failed to prove the case against the
respondent No.1-original accused beyond reasonable doubt. Thus, from
the evidence itself it is established that the prosecution has not
proved its case beyond reasonable doubt.
Ms.Jhaveri,
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-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 16th
April 2010 passed by the learned Metropolitan Magistrate, Court
No.8, Ahmedabad (Evening Court), in Criminal Case No.99 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)
Anup
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