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CR.A/1996/2008 4/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1996 of 2008
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 ?
=========================================================
HARSHADBHAI
HIRALAL DAVE - Appellant(s)
Versus
LOKCHAND
DEEPCHAND & 4 - Opponent(s)
=========================================================
Appearance
:
MR
MIRZA for MR RR MARSHALL
for
Appellant(s) : 1,
NOTICE SERVED for Opponent(s) : 1 - 2.
MR DK
MODI for Opponent(s) : 3 - 4.
MR MD MODI for Opponent(s) : 3 -
4.
MR HL JANI ld. APP for Opponent(s) :
5,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 28/01/2010
ORAL
JUDGMENT
1.0
The present appeal, under section 378 of the Code of Criminal
Procedure, 1973, is directed against the judgment and order of
acquittal dated 17.3.2007 passed by the learned Metropolitan
Magistrate, Court no. 6, Ahmedabad in Criminal Case No. 3/1998,
whereby the accused have been acquitted of the charges under sec. 7,
7(ii) & 16(1)(A)(I) of the Prevention of Food Adulteration Act,
leveled against them.
2.0
The brief facts of the prosecution case are as under:
2.1
It is the case of the prosecution that Food Inspector on 9.9.1997
visited the shop of respondents-accused, and has taken the sample of
Tulsi Mix Gutkha and purchased the same and paid the price,
cash memo was taken and after following the procedure the sample was
sent to the Public Analyst, Ahmedabad for analysis and as per the
report of the Public Analyst, the sample was found to be misbranded
and adulterated. On these facts, the complaint was filed before the
Court, which was numbered as Criminal Case No. 3/1998 against the
respondents. 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.
3.0
It was contended by learned Advocate Mr. Mirza for Mr RR Marshal for
the appellant 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 sample
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
Advocate for the appellant. 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.
10. Mr
Mirza 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.
11.
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.
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.)
mandora/
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