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CR.A/1293/2010 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1293 of 2010
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AHMEDABAD
MUNICIPAL CORPORATION - Appellant(s)
Versus
BHANJIBHAI
OTAJI CHANDEL & 1 - Opponent(s)
=========================================
Appearance :
MS
JIRGA D JHAVERI for
Appellant(s) : 1,
None for Opponent(s) : 1,
MR DC SEJPAL, LD.
ADDL. PUBLIC PROSECUTOR for Opponent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 20/12/2010
ORAL
ORDER
The
appellant has preferred the present appeal under Section 378 of the
Code of Criminal Procedure, 1973 against the Judgment and Order of
acquittal dated 18th November 2009 passed by the learned
Metropolitan Magistrate, Court No.6, Ahmedabad, in Criminal Case
No.22699 of 2007 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 Food Inspector in Ahmedabad Municipal Corporation. It is the case
of the prosecution that that on 18th July 2007 the
appellant along with his Peon visited the shop of respondent
no.1-accused and purchased 900 gms. of Tomato Sauce after paying
consideration in presence of panch witness. It is also the case of
the prosecution 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 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 for
violation of the Prevention of Food Adulteration Act.
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 18th November 2009.
Being
aggrieved and dissatisfied with the said Judgment and Order of
acquittal dated 18th November 2009 passed by the learned
Metropolitan Magistrate, Court No.6, Ahmedabad, in Criminal Case
No.22699 of 2007, the appellant has preferred the above mentioned
Criminal Appeal.
Heard
Ms.Jirga Jhaveri, learned counsel appearing on behalf of the
appellant and Mr.D.C. Sejpal, learned Additional Public Prosecutor
appearing on behalf of the respondent No.2-State. I have also gone
through the papers and the Judgment and Order passed by the learned
Magistrate.
Ms.Jirga
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. 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
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, found that prosecution has failed to follow the mandatory
provision of Section 13(2) of the Act. It is also observed by the
learned Magistrate that prosecution has failed to follow the
mandatory provision of Rule 14 of the Rules. Even it is also
observed by the learned Magistrate that the Food Inspector has not
followed the proper procedure of adding Formalin in the sample.
Therefore, report of the Public Analyst is not acceptable. 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.
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.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-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 dismissed. The
Judgment and Order of acquittal dated 18th
November 2009 passed by the learned Metropolitan Magistrate, Court
No.6, Ahmedabad, in Criminal Case No.22699 of 2007 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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