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CR.A/971/2003 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 971 of 2003
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 ?
=========================================================
STATE
OF GUJARAT - Appellant(s)
Versus
MUKESHKUMAR
KURJIBHAI BHUT & 2 - Opponent(s)
=========================================================
Appearance
:
MR
PK JANI, PUBLIC PROSECUTOR
for
Appellant(s) : 1,
MR TUSHAR L SHETH for Opponent(s) : 1 - 3.
MR
PB KHANDHERIA for Opponent(s) : 1 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 08/02/2010
ORAL
JUDGMENT
The
present appeal, under Section 378(1)(3) of the Code of Criminal
Procedure, 1973, is directed against the Judgment
and order of acquittal dated 12.05.2003 passed by the learned 2nd
Joint Judicial Magistrate, First Class, Gondal, in Criminal Case No.
888 of 1995, whereby the learned Magistrate has acquitted the
respondents accused from the charges alleged against them.
The
short facts of the prosecution case is that the complainant, Food
Inspector visited the business place of the respondents – accused
and purchased the sample of ground-nut oil from the oil mill of
accused for the purpose of analysis and after following the due
procedure sent the same to the Public analyst, for analysis. In the
Report the Public Analyst found that the sample does not conform to
the standards, as prescribed under the provisions of the Prevention
of Food Adulteration Act. Thereafter, on the basis of Report, after
obtaining necessary sanction the complainant filed complaint against
the respondents accused.
Thereafter
the trial was conducted before the learned Magistrate. The
prosecution has examined the witnesses and also relied upon the
documentary evidence. After considering the oral as well as
documentary evidence the learned Magistrate has acquitted the
respondents accused from the charges alleged against them, vide
Judgment and order dated 12.05.2003.
Being
aggrieved and dissatisfied with the said Judgment and order dated
12.05.2003 passed by the learned Magistrate, in Criminal Case No.
888 of 1995, the appellant State of Gujarat, has preferred the
above mentioned Criminal Appeal.
I
have heard learned P.P., appearing on behalf of the appellant
State. I have also gone through the papers and the Judgment and
order passed by the trial Court.
Learned
PP for the appellant has taken me through the evidence of
prosecution witnesses and the documentary evidence and submitted
that from the above evidence it is established that the prosecution
has successfully proved its case beyond reasonable doubt. He has
contended that there is no provision to serve the notice under
Section 13(2) to the accused within a period of 10 days, but what is
required is that the notice under Section 13(2) should be issued to
the accused within a period of 10 days and it is not required to be
served on the accused within 10 days. He, therefore, contended that
the Judgment and order passed by the learned Magistrate is without
appreciating the facts and evidence on record.
I
have gone through the Judgment of the trial Court. I have also
perused the reasons assigned by the learned Magistrate.
At
the outset it is required to be noted that the principles which
would govern and regulate 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 & Anr, reported in (2006)6 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
judgement of acquittal, the High Court should have borne in mind the
well-settled principles of law that where two view are possible, the
appellate court should not interfere with the finding of acquittal
recorded by the court below.
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.
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.
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 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
learned Advocate for the appellant. It appears from the record that
the prosecution has failed to follow the mandatory provisions of the
Rules. When the mandatory provision of Rule is not followed by the
prosecution, then the prosecution has no right to say that the trial
Court has committed an error in disbelieving the case of the
prosecution.
The
trial court has, after appreciating the oral as well as documentary
evidence, has clearly observed that there is a breach of Section
13(2) as in the notice it is not mentioned as to in which Court the
complaint is filed and, therefore, the benefit should go to the
accused. The trial Court has also observed that as per Section 13(2)
the notice should be served to the accused within t0 days and in the
present case the notices are issued long after 10 days. The trial
Court has found that from the evidence it is clearly established
that the prosecution has failed to follow the mandatory provision of
Rule 14 of Prevention of Food Adulteration of Rules. The learned
Magistrate has also found that the story put-forward by the
prosecution is not believable. The trial Court has also found that
there are serious lacunae 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 charge against
the respondents accused in the present Appeal. The prosecution
has miserably failed to prove the case against the appellant
accused. Thus, from the evidence itself it is established that the
prosecution has not proved its case beyond reasonable doubt.
Learned
PP 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 respondents
of the charges leveled against them. 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
court below and hence find no reasons to interfere with the same.
Hence the appeal is hereby dismissed.
In
view of above the Appeal is dismissed. The judgment and order dated
12.05.2003 passed by the learned Magistrate, in Criminal Case No.
888 of 1995 acquitting the respondents – accused from the charges
alleged against them is hereby confirmed. Bail bonds, if any, shall
stand cancelled. R & P may be sent back to the trial Court.
(Z.K.SAIYED,
J.)
sas
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