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CR.A/520/1999 1/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 520 of 1999
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
NAKUM
MANOJ DAMJIBHAI HADIYANA & 5 - Opponent(s)
=========================================================
Appearance
:
MR
MG NANAVATI, LD. ADDL. PUBLIC PROSECUTOR
for
Appellant(s) : 1,
MR YOGESH S LAKHANI for Opponent(s) : 1,
MR
DK MODI for Opponent(s) : 2 -
6.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 08/02/2010
ORAL
JUDGMENT
The
appellant-State of Gujarat, has preferred this Appeal under Section
378(1)(3) of the Code of Criminal Procedure, 1973 against the
judgment and order of acquittal dated 22ND January 1999 passed by
the learned Judicial Magistrate First Class, Dhrol Jodia, in
Criminal Case No. 396 of 1994, whereby the learned Magistrate has
acquitted the respondents-accused of the charges levelled against
them.
The
short facts of the prosecution case is that the complainant, Food
Inspector, visited the business place of accused no.1 and collected
sample of Laxmi Brand Groundnut Oil from the packed tin after
paying consideration and sent the same for analysis to the Public
Analyst, Bhuj. On examination, the Public Analyst found that the
said sample was not upto the standard as prescribed and it was
adulterated. Thereafter, after obtaining necessary permission, the
Food Inspector filed case in the court of learned Magistrate.
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
respondents-accused from the charges alleged against them by the
judgment and order dated 22nd January 1999.
Being
aggrieved and dissatisfied with the said judgment and order dated
22nd
January 1999 passed by the learned Magistrate in Criminal Case
No. 396 of 1994, the appellant-State of Gujarat, has preferred the
above mentioned Criminal Appeal.
I
have heard Mr. M.G. Nanavati, learned Additional Public Prosecutor,
appearing on behalf of the appellant-State and learned advocate,
appearing on behalf of respondents-accused. I have also gone through
the papers and the judgment and order passed by the Trial Court.
Mr.
M.G. Nanavati, learned Additional Public Prosecutor 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 the witnesses have supported the case of the
prosecution and the learned Magistrate has committed grave error in
disbelieving and discarding the evidence of witnesses. He also
contended that the learned Magistrate has not considered the fact
that the Food Inspector has followed the proper procedure while
collecting the sample. He, therefore, contended that the judgment
and order passed by the learned Magistrate is without appreciating
the facts and evidence on record.
Learned
advocates for the respondents-accused have supported the judgment
and order of the Trial Court and contended that the Food Inspector
has not followed the mandatory rules and the prosecution has failed
to establish prima-facie case against the accused.
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
judgment 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 Vs. 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 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.
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.
The
Trial Court has, after appreciating the oral as well as documentary
evidence, found that the Food Inspector has committed breach of
mandatory provisions of the Rules while collecting the sample. It
is also observed that the original complainant was examined;
however, before this cross-examination, he was died. The prosecution
has also not examined any witnesses to support the case of the
prosecution. It is also observed that the prosecution has failed to
examine Sanctioning Officer to prove the case of the prosecution.
Independent witness has not supported the case of the prosecution.
The prosecution has failed to produce on record Bill, Accounts,
Partnership documents, etc. in respect of original accused nos. 2 to
6. The Trial Court has also 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
respondents-accused in the present appeal. The prosecution has
miserably failed to prove the case against the respondents-accused.
Thus, from the evidence itself it is established that the
prosecution has not proved its case beyond reasonable doubt.
Learned
Additional Public Prosecutor 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-accused of the charges levelled 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. Record
and Proceedings to be sent back to the Trial Court, forthwith. Bail
bonds, if any, shall stands cancelled.
(Z.
K. Saiyed, J)
Anup
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