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CR.A/1446/2009 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1446 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
STATE
OF GUJARAT D G GAMIT, FOOD INSPECTOR
Versus
HAJARISINH
RUPSINH PUROHIT & 1
=========================================
Appearance :
MR PK JANI
PUBLIC PROSECUTOR for Appellant
MR ADIL R
MIRZA for Respondents
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 26/02/2010
ORAL
JUDGMENT
[1] The
present appeal, under section 378 of the Code of Criminal Procedure,
1973, is directed against the judgment and order of acquittal dated
04.03.2009 passed by the learned JMFC, Pardi, District: Valsad in
Criminal Case No. 1749/2004, whereby the accused have been acquitted
of the charges under sec. 2(1-a)(a) and 2(1-A), 7(2) and 16(1)(A) of
the Prevention of Food Adulteration Act, leveled against them.
[2] The
brief fact of the prosecution case is that the accused were doing
business of manufacturing and selling the sweet. On 28.11.2003, the
complainant visited the shop of the respondents. The complainant
decided to take sample of sweet (mithari). Thereafter, he sealed it
and put his signature as well as signature of panch and after
following prescribed procedure, he sent it for analysis. On the
sample being found adulterated, after obtaining necessary sanction
filed the complaint before the Court, which was numbered as Criminal
Case No. 1749/2004. At the time of trial, evidence was led before the
trial Court. The documents were produced and oral evidence of the
witnesses were also recorded by the trial Court and after considering
the oral as well as documentary evidence, the learned Magistrate has
passed the order of acquittal which is impugned in this appeal.
[3] It
was contended by learned PP Mr.P. K. Jani that the judgment and
order of 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 Food
Inspector has followed the rules prescribed by law and he has also
followed the procedure of taking the sample and the contents of Form
No. 6 etc are just and proper. The sweet was seized and sealed
properly. Yet, the learned Magistrate has not considered the evidence
of prosecution. Therefore, the order impugned in this appeal passed
by the learned Magistrate requires to be quashed and set aside.
[4] 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 at this stage.
Hence, this appeal requires to be dismissed.
[5] Even
in a recent decision of the Apex Court in the case of State
of Goa V. Sanjay Thakran & Anr. Reported in (2007)3 SCC 75,
the Court has reiterated the powers of the High Court in such cases.
In para 16 of the said decision the Court has observed as under:
16.
From the aforesaid decisions, it is apparent that while exercising
the powers in appeal against the order of acquittal the Court of
appeal would not ordinarily interfere with the order of acquittal
unless the approach of the lower Court is vitiated by some manifest
illegality and the conclusion arrived at would not be arrived at by
any reasonable person and, therefore, the decision is to be
characterized as perverse. Merely because two views are possible, the
Court of appeal would not take the view which would upset the
judgment delivered by the Court below. However, the appellate court
has a power to review the evidence if it is of the view that the
conclusion arrived at by the Court below is perverse and the Court
has committed a manifest error of law and ignored the material
evidence on record. A duty is cast upon the appellate court, in such
circumstances, to re-appreciate the evidence to arrive to a just
decision on the basis of material placed on record to find out
whether any of the accused is connected with the commission of the
crime he is charged with.
[6] 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.
[7] 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 reasonings, 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,
wherein, it is held
as under:
&
This court
has observed in Girija Nandini Devi V. Bigendra Nandini Chaudhary
(1967)1 SCR 93: (AIR 1967 SC 1124) that it is not the duty of the
appellate court when it agrees with the view of the trial court on
the evidence to repeat the narration of the evidence or to reiterate
the reasons given by the trial court expression of general agreement
with the reasons given by the Court the decision of which is under
appeal, will ordinarily suffice.
[8] 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.
[9] I
have gone through the judgment and order passed by the trial court. I
have also perused the oral as well as documentary evidence led by the
trial court and also considered the submissions made by learned PP
for the appellant-State. The trial court while considering the oral
as well as documentary evidence has clearly observed that the
prosecution has not followed the mandatory provisions. The
prosecution has failed to prove its case beyond reasonable doubt.
Even in the present appeal, nothing is produced or pointed out to
rebut the conclusion of the trial Court. Thus, from the evidence
itself it is established that the prosecution has not proved its case
beyond reasonable doubt.
[11] Mr.P.
K. Jani, learned PP is not in a position to show any evidence to take
a contrary view of 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.
[11] In
the above view of the matter, I am of the considered opinion that the
trial court was completely justified in acquitting the respondents of
the charges leveled against them.
[12] 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.
[13] I
am, therefore, in complete agreement with the findings, ultimate
conclusion and the resultant order of acquittal recorded by the court
below and hence find no reasons to interfere with the same. Hence the
appeal is hereby dismissed. R & P to be sent back to the trial
Court, forthwith. Bail bond, if any, stands cancelled.
(Z.K.
SAIYED, J.)
(vijay)
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