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CR.A/2087/2010 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 2087 of 2010
=========================================
S
R RAVAL, FOOD INSPECTOR - Appellant(s)
Versus
MOHAMMED
ASLAM BASIR AHMED ANSARI & 1 - Opponent(s)
=========================================
Appearance :
MS
SHIVYA DESAI FOR M/S RJ RAWAL ASSOC.
for Appellant(s) : 1,
None
for Opponent(s) : 1,
MR HL JANI, LD. ADDL. PUBLIC PROSECUTOR for
Opponent(s) : 2,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 07/02/2011
ORAL
ORDER
The
appellant-State of Gujarat has preferred the present appeal under
Section 378 of the Code of Criminal Procedure, 1973 against the
Judgment and Order of acquittal dated 28th January 2010
passed by the learned Metropolitan Magistrate, Court No.8,
Ahmedabad, in Criminal Case No.68 of 2004 for the offences
punishable under Section 16 of the Prevention of Food Adulteration
Act, 1954, whereby the learned Magistrate has acquitted the
respondent No.1-accused of the charges levelled against him.
The
short facts of the prosecution case is that on 10th
December 2003 at about 10.00 hours, the complainant-Food Inspector
has visited the shop of the accused with his peon. It is the case of
the complainant that at that time the accused was present and was
doing business. It is the case of the complainant that after giving
his identity as Food Inspector, the complainant purchased three
packets of 500 gms. Sweet Biscuit in presence of panch witness and
also paid consideration for the sample. It is also the case of the
complainant that after following due procedure of sealing, the
sample was sent for analysis to the Public Analyst, Public Health
Laboratory, Ahmedabad Municipal Corporation. On examination, the
Public Analyst found that the said sample was adulterated and not
upto the standards and provisions laid down under the Prevention of
Food Adulteration Act, 1954. Therefore, after following the due
procedure, complaint was filed against the respondent No.1-accused
in the Court of learned Metropolitan Magistrate, Court No.8,
Ahmedabad for the offences punishable under Section 16(1)A(i) of the
Prevention of Food Adulteration Act, 1954.
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. After considering the oral as well as
documentary evidence, the learned Magistrate has acquitted the
respondent No.1-accused from the charges alleged against him by his
Judgment and Order of acquittal dated 28th January 2010.
Being
aggrieved and dissatisfied with the said Judgment and Order of
acquittal dated 28th January 2010
passed by the learned Metropolitan Magistrate, Court No.8,
Ahmedabad, in Criminal Case No.68 of 2004,
the appellant-Food Inspector has preferred the above mentioned
Criminal Appeal.
Heard
Ms.Shivya Desai, learned counsel for M/s. R.J. Raval Associates,
learned counsel for the appellant and Mr.H.L. Jani, learned
Additional Public Prosecutor, appearing on behalf of the respondent
No.2-State.
Ms.Desai,
learned counsel for the applicant, 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. She, 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 the original complainant-Food Inspector had
taken sample of 500 gms. packets whereas the Public Analyst has
analysed 250 gms. packets and opined that the said sample is
misbranded and adulterated. It is also observed by the learned
Magistrate that as per the case of the appellant he has send the
sample as it is for analysis and has not broken the packets. Thus,
when as per the say of the appellant he has sent 500 gms. packet,
then how it can be considered that the said Report of Analyst of 250
gms. packet is of the said sample sent by the appellant. It is
observed by the learned Magistrate that the prosecution has failed
to clear the doubt in this regard. It is also observed by the
learned Magistrate that though there is contradiction, Sanctioning
Authority has without application of mind, mechanically given
sanction to file complaint. It is also observed by the learned
Magistrate that prosecution has failed to prove its case beyond
reasonable doubt and when prosecution has failed to prove case
beyond reasonable doubt, benefit ought to have been given to the
respondent No.1-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.
Thus,
the appellant could not bring home the charges against the
respondent No.1-accused in the present appeal. The prosecution has
miserably failed to prove the case against the respondent
No.1-accused beyond reasonable doubt. Thus, from the evidence itself
it is established that the prosecution has not proved its case
beyond reasonable doubt.
Ms.Desai,
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
No.1-accused of the charges levelled against him.
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 28th
January 2010 passed by the learned Metropolitan Magistrate, Court
No.8, Ahmedabad, in Criminal Case No.68 of 2004 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
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