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CR.A/3177/2008 5/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 3177 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
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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 ?
=========================================
FOOD
INSPECTOR - Appellant(s)
Versus
ASHWINBHAI
MOHANBHAI KHUNT & 3 - Opponent(s)
=========================================
Appearance :
MS
JIRGA D JHAVERI for the Appellant.
MR DK MODI and MR MD MODI for
respondent nos. 2 and 3.
Mr. D.C.Sejpal, Additional PUBLIC
PROSECUTOR for respondent no.
4.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 28/01/2010
ORAL
JUDGMENT
1. The
present appeal under section 378 of the Code of Criminal Procedure,
1973 is filed by Food Inspector, Ahmedabad Municipal
Corporation-original complainant against the judgment and order of
acquittal dated 23.8.2007 passed by the learned Metropolitan
Magistrate, Ahmedabad in Criminal Case no. 35 of 2001 whereby the
accused persons have been acquitted of the charges under sections 7
and 16 of the Prevention of Food Adulteration Act, 1954.
2. Brief
facts of the prosecution case are that TATA tempo no. GJ-3-X-4849 was
intercepted which was carrying 200 tins of edible oil and he was on
the way to deliver the same to Yogeshwar Marketing, Ahmedabad. The
owner did not turn up to the spot. Thereafter, in presence of the
panchas, the complainant collected and purchased 400 gms. of oil
from the tin for analysis. The said sample was thereafter sent to
Public Analyst. As per the report of the Public Analyst, the said
sample was found adulterated.
3. Therefore,
a complaint with respect to the aforesaid offence was filed against
the respondents in the Court of the learned Metropolitan Magistrate,
Ahmedabad. The plea of the complainant as well as that of the accused
were recorded.
4. With
a view to prove the case against the respondents-accused, the
prosecution has examined the complainant Vikram Dahyabhai Patel at
exh. 40, witness Jayantibhai at exh. 79, and panch witness
Vasantbhai Solanki at exh. 94 as well as produced documentary
evidence. After the trial, after recording statements of the accused
persons under section 313 of the Criminal Procedure Code, and after
hearing arguments on behalf of prosecution and the defence, the
learned Metropolitan Magistrate, Ahmedabad has acquitted the
respondents-accused of all the charges levelled against them by the
judgment an order dated 23.8.2007.
5. Being
aggrieved and dissatisfied with the aforesaid judgment and order
passed by the learned Metropolitan Magistrate, Ahmedabad, the
appellant has preferred the present appeal.
6. Heard
learned Advocate Ms. Jirga Zaveri for the appellant. She has
contended that the complainant has proved the case against the
respondents-accused beyond all reasonable doubt. It is also contended
that the complainant has also proved documentary evidence to prove
his case. She has also vehemently argued that the learned trial Judge
has not considered the oral as well as documentary evidence produced
by the complainant.
7. At
the outset, it is required to be noted that the principles which
would govern and regular the hearing of appeal by this Court against
an order of acquittal passed by the trial Court have been very
succinctly explained by the Apex Court in a catena of decisions. In
the case of M.S.Narayana Menon @ Mani vs. State of Kerala and Anr.
reported in (2006) SCC 39, the Apex Court has narrated about the
powers of the High Court in appeal against the order of acquittal. In
para 54 of the decision, the Apex Court has observed as under:
“54: In
any event the High Court entertained an appeal treating to be an
appeal against acquittal, it was in fact exercising the revisional
jurisdiction. Even while exercising an appellate power against a
judgment of acquittal, the High Court should have borne in mind the
well settled principles of law that where two views are possible, the
appellate court should not interfere with the finding of acquittal
recorded by the court below.”
8. Further,
in the case of Chandrappa vs. State of Karnataka, reported in
(2007) 4 SCC 415 the Apex Court laid down the following
principles:
“42: From
the above decisions, in our considered view, the following general
principles regarding powers of the appellate court while dealing with
an appeal against an order of acquittal emerge:
(1) An
appellate court has full power to review, re-appreciate and
reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of
Criminal Procedure, 1973 puts no limitation, restriction or condition
on exercise of such power and an appellate court on the evidence
before it may reach its own conclusion, both on questions of act and
of law.
(3) Various
expressions, such as “substantial and compelling reasons”,
“good and sufficient grounds”, “very strong
circumstances”, “distorted conclusions”, “glaring
mistakes”, etc. are not intended to curtain extensive powers of
an appellate court in an appeal against acquittal. Sych phraseologies
are more in the nature of “flourishes of language” to
emphasis the reluctance of an appellate court to interfere with
acquittal than to curtain he power of the court to review the
evidence and to come to its own conclusion.
(4) An
appellate court, however, must bear in mind that in case of
acquittal, there is double presumption in favour of the accused.
Firstly,the presumption of innocence is available to him under the
fundamental principles of criminal jurisprudence that every person
shall be presumed to be innocent unless he is proved guilty by a
competent court of law. Secondly, the accused having secured his
acquittal, the presumption of his innocence is further reinforced,
reaffirmed and strengthened by the trial court.
(5) 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.”
9. 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.
10. Even
in a recent decision of the Apex Court in the case of State of
Goa, vs. Sanjay Thakran and 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
characterised 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.”
11. Similar
principle has been laid down by the Apex Court in the cases of
State of Uttar Pradesh vs. Ram Veer Singh and Ors., reported in 2007
AIR SCW 5553 and in Girja Prasad (Dead) by LRS vs. State of MP,
reported in 2007 AIR SC 5589. Thus, the powers which this Court
may exercise against an order of acquittal are well settled.
12. 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 vs. Bigendra Nandini
Chaudhary (1967) SCR 93; (AIR 1967 SC 1124) that it is not the duty
of the appellate court when it agrees with a 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.”
13. 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.
14. 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 before
the trial court and also considered the submissions made by the
learned Advocate for the appellant. The trial court while considering
the oral as well as documentary evidence has clearly observed that
the appellant has miserably failed to prove its case beyond
reasonable doubt against the respondents. From the evidence on
record, it appears that the accused no.1 who is cited as an accused
in the alleged offence was simply a driver of the vehicle. Even I
have tried to find out something from the Prevention of Food
Adulteration Act, whether a driver-an abettor can be joined as an
accused in such type of offence. The learned counsel for the
appellant is unable to show from the provisions of the Act that an
abettor can be joined as an accused in such type of offence under
Prevention of Food Adulteration Act. It also appears from the oral
evidence that exh. 103 is a marked document, a xerox copy of the
bill, exh. 104 is also a xerox copy of the permission. From the
perusal of the oral as well as documentary evidence, it also appears
that it is not established beyond reasonable doubt that the documents
marks A and B were proved before the trial court. Looking to the root
of this case, the important document is mark A and mark A is not
proved. In this view of the matter, the accused cannot be convicted
for such offence. 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.
15. Learned
Advocate for the appellant 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.
16. In
the above view of the matter, I am of the considered view that the
trial court was completely justified in acquitting the respondents of
the charges levelled against them.
17. 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.
18. 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 reason to interfere with the same. Hence, the
appeal preferred by the appellant is hereby dismissed. Record and
Proceedings be sent back to the trial court forthwith. Bail bonds, if
any, stand cancelled.
(Z.K.Saiyed,J)
***darji
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