Gujarat High Court Case Information System
Print
CR.A/152/2000 5/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 152 of 2000
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 ON BEHLAF OF - Appellant(s)
Versus
ARVINDKUMAR
HIRJIBHAI SODAGAR & 2 - Opponent(s)
=========================================================
Appearance
:
MR
MAULIK NANAVATI, APP for Appellant(s) : 1,
NOTICE SERVED for
Opponent(s) : 1, 3,
MR DK MODI for Opponent(s) : 1, 3,
MR MD
MODI for Opponent(s) : 1, 3,
None for Opponent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 11/01/2010
ORAL
JUDGMENT
The
present appeal, under Section 378 of the Code of Criminal
Procedure, 1973, is directed against the Judgment and order of
acquittal dated 14.10.1999 passed by the learned Jt. Civil Judge
(JD) & JMFC, Mahuva, in Criminal Case No. 453 of 1994, whereby
the learned Magistrate has acquitted the respondents accused
from 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 & 2 and
purchased the 9 packets of Aradhana Tea , weighing 50 grams
each for the purpose of analysis and after following the due
procedure sent the same to the Public analyst, for analysis. As
there was no lot number or batch number the Public Analyst vide
report dated 12.2.1994 declared the said sample as mis-branded and,
therefore, under the provision of Section 20 the Local Authority has
granted sanction to file complaint against the respondents
accused. Therefore, complaint under the provision of Section 7(ii) &
76(iii) of the P.F. Act has been filed 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 14.10.1999.
Being
aggrieved and dissatisfied with the said Judgment and order dated
14.10.1999 passed by the learned Magistrate, in Criminal Case No.
453 of 1994, the appellant State of Gujarat, has preferred the
above mentioned Criminal Appeal.
I
have heard learned A.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
APP 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 while taking the sample the complainant has properly
followed the provisions of the Act and, therefore, the evidence of
the complainant Food Inspector is believable. 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. 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 judgement
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.
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, has found that no notice under Section 13(1) has been
issued to the respondents accused. The learned Judge has also
found that complaint was not filed as per sanction Exh.36. The
trial Court has also found that the prosecution has failed to follow
the mandatory provision of the Act. 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
APP 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
14.10.1999 passed by the learned Magistrate, in Criminal Case No.
453 of 1994 acquitting the respondents – accused from the charges
levelled 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
Top