Gujarat High Court Case Information System
Print
CR.A/2323/2009 4/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 2323 of 2009
=========================================
ASHWINBHAI
H ACHARYA - Appellant(s)
Versus
BIPINBHAI
VITHTHALBHAI & 1 - Opponent(s)
=========================================
Appearance
:
MR
HRIDAY BUCH for Appellant(s) : 1,
None for Opponent(s) : 1,
MR
HL JANI ADDITIONAL PUBLIC PROSECUTOR for Opponent(s) :
2,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 15/01/2010
ORAL
ORDER
1. The
present appeal, under section 378 (4) of the Code of Criminal
Procedure, 1973, is directed against the judgment and order of
acquittal dated 16.12.2008 passed by the learned Judicial Magistrate,
First Class, (Municipal), Rajkot in Food Criminal Case No.294 of
1997, whereby the accused has been acquitted from the charges leveled
against him.
2. The
brief facts of the prosecution case are as under:
2.1 The
Food Inspector had filed criminal case before the learned trial
Judge, Rajkot on the ground that he had visited the firm of accused
named as Gopal Namkin on 13.3.1997 and purchased 250 gram of
Chavana from the accused person. The Food Inspector had given notice
before purchasing the Chavana from the accused person. The procedure
of taking sealing and sending the sample was meticulously followed as
per the mandatory provisions of the Prevention of Food Adulteration
Act. The sample was sent for analysis to the Public Analyst and after
verifying the report of analysis, the sample was not found as per the
mandatory provisions. Therefore, complaint was filed on 6.5.1985 for
the offences under Section 7, 16(1)(a)(i) and Section 2(9)(k) of the
Prevention of Food Adulteration Act read with Rule 32(e) of the
Prevention of Food Adulteration Rules, 1956.
2.2 Therefore,
Criminal Case No.294 of 1997 with respect to the aforesaid offence
was filed against the respondent before the learned Judicial
Magistrate, First Class, (Municipal) Rajkot. During the course of
investigation, chargesheet was filed against them before the court of
learned JMFC.
2.3 To
prove the case against the present accused, the prosecution has also
produced documentary evidence and has examined two witnesses. Learned
trial Judge after perusing the record and hearing both the sides,
acquitted the present accused vide order dated 16.12.2008.
3. Being
aggrieved by and dissatisfied with the aforesaid judgment and order
passed by the learned trial Court the appellant has preferred the
present appeal.
4. It
was contended by learned counsel Mr. Buch that the judgment and order
of the trial Court is against the provisions of law; the trial Court
has not properly considered the evidence led by the prosecution and
looking to the provisions of law itself it is established that the
prosecution has proved the whole ingredients of the evidence against
the present respondent. Learned counsel has also taken this court
through the oral as well as the entire documentary evidence.
4.1 Thus,
it is a settled principle that while exercising appellate power, even
if two reasonable conclusions are possible on the basis of the
evidence on record, the appellate court should not disturb the
finding of acquittal recorded by the trial court.
4.2 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 judgement
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.
4.3 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.
4.4 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.
5. 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
counsel for the appellant. I have also perused Exhibit 42 and 43 and
it is established before the learned trial Court the complainant has
failed to prove his case in his favour and even he has not followed
the mandatory provisions of Section 20(1). The trial court has
clearly recorded a finding that the accused has not committed any
offence under the Act. Thus, from the evidence itself it is
established that the complainant has not proved its case beyond
reasonable doubt.
6. Learned
counsel 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.
7. In
the above view of the matter, I am of the considered opinion that the
trial court was completely justified in acquitting the respondent of
the charges leveled against him.
8. 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.
9. I
am, therefore, in complete agreement with the findings, ultimate
conclusion and the resultant order of acquittal recorded by the court
below and hence I find no reasons to interfere with the same. Hence
the appeal is hereby dismissed. Bail bond, if any, stands cancelled.
Record and proceedings to be sent back to trial Court, forthwith.
(Z.K.
SAIYED, J.)
ynvyas
Top