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CR.A/1913/2010 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1913 of 2010
=========================================
STATE
OF GUJARAT-FOR & ON BEHALF OF K V DABHI,FOOD INSPECTOR -
Appellant(s)
Versus
BASHIR
ABDUL MEMON - Opponent(s)
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Appearance :
MR
HL JANI, LD. ADDL. PUBLIC PROSECUTOR
for Appellant(s) : 1,
None
for Opponent(s) : 1,
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CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 23/02/2011
ORAL
ORDER
The
appellant-State of Gujarat has preferred the present appeal under
Section 378(4) of the Code of Criminal Procedure, 1973 against the
Judgment and Order of acquittal dated 31st July 2010
passed by the learned additional Chief Judicial Magistrate,
Dhrangadhra, in Criminal Case No.156 of 2002 for the offences
punishable under Section 16 of the Prevention of Food Adulteration
Act, 1954, whereby the learned Magistrate has acquitted the
respondent-original accused of the charges levelled against him.
The
short facts of the prosecution case is that on 07th
January 2002 the complainant-Food Inspector visited the shop of the
respondent. It is the case of the complainant-Food Inspector that at
that point of time the respondent-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 loose Ice
Cream 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 not conform to the standard prescribed under the
Prevention of Food Adulteration Act, 1954. Therefore, after
following the due procedure, complaint was filed against the
respondent-accused for the offences punishable under Section 16 of
the Prevention of Food Adulteration Act, 1954.
Thereafter,
upon service of summons, the respondent-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 has stated that the
complainant-Food Inspector has collected sample of milk and not of
loose ice-cream. He has further contended that in his further
statement that he has not placed the said milk for sale and still
ice-cream was not prepared.
Thereafter,
after considering the oral as well as documentary evidence, the
learned Magistrate has acquitted the respondent-original accused
from the charges alleged against him by his Judgment and Order of
acquittal dated 31st July 2010.
Being
aggrieved and dissatisfied with the said Judgment and Order of
acquittal dated 31st
July 2010 passed by the learned Additional Chief Judicial
Magistrate, Dhrangadhra, in Criminal Case No.156 of 2002, the
complainant-Food Inspector through State of Gujarat has preferred
the above mentioned Criminal Appeal.
Heard
Mr.H.L. Jani, learned Additional Public Prosecutor, appearing on
behalf of the appellant-State.
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 prosecution has failed to follow the
mandatory provision of Rule 14 of the Rules. It is also observed by
the learned Magistrate that there is no evidence on record to
corroborate the evidence of the complainant-Food Inspector. Thus,
prosecution has failed to prove its case beyond reasonable doubt
against the respondent -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-original accused.
Thus,
the appellant could not bring home the charges against the
respondent-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.
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
respondent-original accused of the charges levelled against him for
want of evidence.
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 31st
July 2010 passed by the learned Additional Chief Judicial
Magistrate, Dhrangadhra, in Criminal Case No.156 of 2002 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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