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CR.A/1014/2009 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1014 of 2009
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
MEGHRAJ
HARUMAL PRITVANI M/S SHIV SOPARI STORES & 2 - Opponent(s)
=========================================
Appearance
:
MR HL JANI
ADDITIONAL PUBLIC
PROSECUTOR for Appellant(s) : 1,
NOTICE NOT RECD BACK for
Opponent(s) : 1 - 2.
NOTICE SERVED for Opponent(s) :
3,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 18/01/2010
ORAL
JUDGMENT
1. The
present appeal, under section 378(4) of the Code of Criminal
Procedure, 1973, is directed against the judgment and order of
acquittal dated 13.1.2009 passed by the learned Chief Judicial
Magistrate, Dahod, in Criminal Case No.383 of 2005, whereby the
accused have been acquitted from the charges leveled against them.
2. The
brief facts of the prosecution case are as under:
2.1 The
complainant working as Food Inspector had filed criminal case before
the learned trial Judge, Dahod, on the ground that on 2.4.2004, at
about 14:30 Hrs., the complainant Food Inspector had visited
place of accused No.1 and after giving intimation in Form No.6 has
purchased muddamal sample Jatpat Gutkha for the purpose of
analysis. The procedure of taking sealing and sending the sample was
meticulously followed as per the mandatory provisions of the
Prevention of Food Adulteration Act. The sample was sent for analysis
to the Public Analyst and after verifying the report of analysis, the
sample was not found as per the mandatory provisions and found
adulterated and misbranded. Therefore, complaint was filed for the
offences under Sections 2(1-a) (a) (b) (m), 2(ix) as well as Rule
32(b) and Section 7(1) (2) (5) and Rule 62 & 50 of the Prevention
of Food Adulteration Act, 1954.
2.2 Therefore,
Criminal Case No.385 of 2005 with respect to the aforesaid offence
was filed against the respondents before the learned Chief Judicial
Magistrate, Dahod. During the course of investigation, chargesheet
was filed against them before the court of learned trial Court.
2.3 To
prove the case against the present accused, the complainant has also
produced documentary evidence. After hearing the parties and perusing
the documents on record, the learned Chief Judicial Magistrate,
Dahod, was pleased to acquit the accused by judgment and order dated
13.1.2009 passed in Criminal Case No.383 of 2009.
3. Being
aggrieved by and dissatisfied with the aforesaid judgment and order
passed by the learned trial Court the appellant has preferred the
present appeal.
4. It
was contended by learned APP Mr. H.L. Jani that the judgment and
order of the trial Court is against the provisions of law; the trial
Court has not properly considered the evidence led by the prosecution
and looking to the provisions of law itself it is established that
the prosecution has proved the whole ingredients of the evidence
against the present respondent. Learned APP has also taken this court
through the oral as well as the entire documentary evidence.
4.1 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.
4.2 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.
4.3 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.
4.4 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
reasonings, 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
wherein it is held as under:
&
This court
has observed in Girija Nandini Devi V. Bigendra Nandini Chaudhary
(1967)1 SCR 93: (AIR 1967 SC 1124) that it is not the duty of the
appellate court when it agrees with the view of the trial court on
the evidence to repeat the narration of the evidence or to reiterate
the reasons given by the trial court expression of general agreement
with the reasons given by the Court the decision of which is under
appeal, will ordinarily suffice.
5. 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 by the
trial court and also considered the submissions made by learned APP
for the appellant. It is established before the learned trial court
that looking to the date of sampling, it was not sealed and seized on
the same date. Even from the evidence, it is show that after 10
months, the compliant was lodged, but the delay of 10 months was not
explained before the learned trial court. Even from the perusal of
the report at Exhibit 40, wherein it is not stated that the magnesium
carbonate is injurious to the human health and the complainant has
filed to prove his case before the learned trial Court. Therefore, I
do not find any substance in this appeal. Thus, from the evidence
itself it is established that the complainant has not proved its case
beyond reasonable doubt.
6. Learned
APP is not in a position to show any evidence to take a contrary view
of 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.
7. In
the above view of the matter, I am of the considered opinion that the
trial court was completely justified in acquitting the respondent of
the charges leveled against him.
8. 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.
9. 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. Bail bonds, if any, stands cancelled.
Record and proceedings to be sent back to trial Court, forthwith.
(Z.K.
SAIYED, J.)
ynvyas
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