Gujarat High Court Case Information System
Print
CR.A/32/2011 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 32 of 2011
=========================================
S
R RAVAL FOOD INSPECTOR - Appellant(s)
Versus
NARESH
SACHHIDANAND DIMARI & 2 - Opponent(s)
=========================================
Appearance :
MS
JIRGA D JHAVERI for
Appellant(s) : 1,
None for Opponent(s) : 1 - 2.
MR HL JANI, LD.
ADDL. PUBLIC PROSECUTOR for Opponent(s) :
3,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 21/02/2011
ORAL
ORDER
The appellant-Food Inspector
through Ahmedabad Municipal Corporation has preferred the present
appeal under Section 378 of the Code of Criminal Procedure, 1973
against the Judgment and Order of acquittal dated 26th
February 2009 passed by the learned Metropolitan Magistrate, Court
No.6, Ahmedabad, in Criminal Case No.11971 of 2006 for the offences
punishable under Section 16 of the Prevention of Food Adulteration
Act, 1954, whereby the learned Magistrate has acquitted the
respondent Nos.1 and 2-original accused of the charges levelled
against them by giving benefit of doubt.
The short facts of the prosecution
case is that on 05th June 2006 the complainant-Food
Inspector along with his Peon has visited Ashray Restaurant, 1, City
Mall, Nr. Rajpath Club, S.G. Highway, Ahmedabad. It is the case of
the complainant that at that time the Manager of the
Restaurant-original accused was present. It is the case of the
complainant that after giving his identity as Food Inspector, the
complainant purchased 06 plates of Harabhara-Kabad i.e.
approximately 900 gms. 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 informed that the respondent No.2
herein-original accused Shri Rajendrabhai Nathabhai Patel is the
owner of the said restaurant. It is also the case of the complainant
that after following due procedure of sealing, the sample was sent
for analysis. On examination, the Public Analyst found that the said
sample was adulterated. Therefore, after following the due
procedure, complaint was filed against the respondent Nos.1 and
2-accused in the Court of learned Metropolitan Magistrate, Court
No.6, Ahmedabad for the offences punishable under Section 16 of the
Prevention of Food Adulteration Act, 1954.
Thereafter, upon service of
summons, the respondent Nos.1 and 2-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 statements of
respondent Nos.1 and 2-accused were recorded under Section 313 of
the Code of Criminal Procedure wherein the accused have denied the
case filed against them.
Thereafter, after considering the
oral as well as documentary evidence, the learned Magistrate has
acquitted the respondent Nos.1 and 2-original accused from the
charges alleged against tie by his Judgment and Order of acquittal
dated 26th February 2009.
Being
aggrieved and dissatisfied with the said Judgment and Order of
acquittal dated 26th
February 2009 passed by the learned Metropolitan Magistrate, Court
No.6, Ahmedabad, in Criminal Case No.11971 of 2006, the
complainant-Food Inspector has preferred the above mentioned
Criminal Appeal.
Heard Ms.Jirga Jhaveri, learned
counsel for the appellant and Mr.H.L. Jani, learned Additional
Public Prosecutor, appearing on behalf of the respondent No.3-State.
Ms.Jhaveri, 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. She has also argued that the learned Magistrate has
not considered the evidence of the witnesses. She 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 prosecution has failed to follow the
mandatory provision of Rule 4(3)(iv) of the Rules. It is also
observed by the learned trial Judge that while collecting the
sample, the complainant has not drawn the panchnama. Even the
prosecution has not examined the panch witness. It is also observed
by the learned Magistrate that without appreciating these facts,
mechanically, the Sanctioning Authority has given sanction to file
complaint. Even there are contradiction in the oral evidence of the
complainant. Thus, prosecution has failed to prove its case beyond
reasonable doubt against the respondent Nos.1
and 2-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 Nos.1
and 2-original accused.
Thus,
the appellant could not bring home the charges against the
respondent Nos.1 and 2-original accused in the present appeal. The
prosecution has miserably failed to prove the case against the
respondent Nos.1 and 2-original accused beyond reasonable doubt.
Thus, from the evidence itself it is established that the
prosecution has not proved its case beyond reasonable doubt.
Ms.Jhaveri, 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 Nos.1 and 2-original accused
of the charges levelled against them 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 26th
February 2009 passed by the learned Metropolitan Magistrate, Court
No.6, Ahmedabad, in Criminal Case No.11971 of 2006 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
Top