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CR.A/229/2011 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 229 of 2011
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AMITBHAI
RAJIVBHAI PATEL - Appellant(s)
Versus
NASIMKHAN
MUSTAKKHAN PATHAN & 1 - Opponent(s)
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Appearance :
MR
SUDHANSHU S PATEL for
Appellant(s) : 1,
None for Opponent(s) : 1,
MR RC KODEKAR, LD.
ADDL. PUBLIC PROSECUTOR for Opponent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 17/02/2011
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 06th February 2010 passed by the learned
Metropolitan Magistrate, Court No.8, Ahmedabad, in Criminal Case
No.15 of 2003 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 17th
January 2003 the complainant-Food Inspector along with his Peon has
visited the shop of the respondent No.1. 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 three packets of 500 gms. each of ‘Biscuit’ in presence of
panch witness as sample and also paid consideration for the same. On
asking about the ownership of the shop, the respondent No.1 had
replied that he is the sole proprietor/owner of the shop, but did
not produce any documents. It is also the case of the complainant
that after following due procedure of sealing, the sample was sent
for analysis to the Public Analyst, Public Health Laboratory,
Ahmedabad Municipal Corporation. On examination, the Public Analyst
found that the said sample was misbranded as prescribed under
Section 2(ix)(k) of the Act. 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 for the offences punishable under Section 16(1)A(i) 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
examination on oath and stated that false case is registered.
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 06th February 2010.
Being
aggrieved and dissatisfied with the said Judgment and Order of
acquittal dated 06th
February 2010 passed by the learned Metropolitan Magistrate, Court
No.8, Ahmedabad, in Criminal Case No.15 of 2003, the
complainant-Food Inspector has preferred the above mentioned
Criminal Appeal.
Heard
Mr.Sudhanshu Patel, learned counsel for the appellant and Mr.R.C.
Kodekar, learned Additional Public Prosecutor, appearing on behalf
of the respondent No.2-State.
Mr.Patel,
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 mechanically the Sanctioning Authority has
given sanction to file the complaint. It is also observed by the
learned Magistrate that except the report of the Public Analyst,
there is nothing on record to suggest that the sample was
misbranded. Even there is no corroborative evidence on record to
support the report of the Public Analyst. Even the report of the
Public Analyst does not suggest as to how the sample was misbranded.
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.
Mr.Patel,
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 06th
February 2010 passed by the learned Metropolitan Magistrate, Court
No.8, Ahmedabad, in Criminal Case No.15 of 2003 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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