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Gujarat High Court
State vs The on 20 December, 2010
Author: Z.K.Saiyed,&Nbsp;
   Gujarat High Court Case Information System 

  
  
    

 
 
    	      
         
	    
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CR.A/910/2010	 6/ 6	ORDER 
 
 

	

 

IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
 

 


 

CRIMINAL
APPEAL No. 910 of 2010
 

=========================================


 

STATE
OF GUJARAT-THRO' & ON BEHALF OF PATEL DILIPKUMAR CHAND -
Appellant(s)
 

Versus
 

PATEL
CHIMANLAL MANILAL - DISTRUBUTOR CUM OWNER OF THE FIRM & 3 -
Opponent(s)
 

========================================= 
Appearance
: 
MR HH
PARIKH, LD. ADDL. PUBLIC PROSECUTOR
for Appellant(s) : 1, 
None
for Opponent(s) : 1 - 4. 
=========================================
 
	  
	 
	  
		 
			 

CORAM
			: 
			
		
		 
			 

HONOURABLE
			MR.JUSTICE Z.K.SAIYED
		
	

 

Date
: 01/12/2010
 

ORAL
ORDER

The
appellant has preferred the present appeal under Section 378(4) of
the Code of Criminal Procedure, 1973 against the Judgment and Order
of acquittal dated 30th December 2009 passed by the
learned Chief Judicial Magistrate, Himmatnagar, in Criminal Case
No.3365 of 2007, 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 appellant is serving
as Food Inspector. It is the case of the prosecution that on 11th
January 2007 at 14.00 hours, the complainant-Food Inspector along
with his Assistant visited the shop of respondents where the
respondent No.1 was present. It is the case of the prosecution that
the respondents were doing business of storing and selling different
eatables. The complainant-Food Inspector after following due
procedure purchased Ghee of “Sorath Suddha Ghee” after
paying consideration. It is the case of the complainant that sample
was taken in presence of panch witness. It is also the case of the
prosecution that after following due procedure of sealing, the
sample was sent to the Public Analyst, Vadodara for analysis. On
examination, the Public Analyst found that the said sample was
adulterated and is not as per the standard prescribed under the
Prevention of Food Adulteration Act. Therefore, after following the
due procedure, complaint was filed against the respondents-accused
in the Court of learned Chief Judicial Magistrate, Himmatnagar for
breach of offence punishable under Section 7(1) of the Prevention of
Food Adulteration Act.

Thereafter,
statement of complainant was recorded. Considering the statement
given by the complainant as the prima-facie case was established,
charge-sheet came to be filed against the respondents-accused.
Thereafter, 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 his
Judgment and Order of acquittal dated 30th December 2009.

Being
aggrieved and dissatisfied with the said Judgment and Order of
acquittal dated 30th December 2009 passed by the learned
Chief Judicial Magistrate, Himmatnagar, in Criminal Case No.3365 of
2007, the appellant-State of Gujarat, has preferred the above
mentioned Criminal Appeal.

Heard
Mr. H.H. Parikh, learned Additional Public Prosecutor for the
appellant-State. Mr.Parikh
has contended that the Judgment and Order of acquittal passed by the
learned Magistrate is not proper, legal and it is erroneous. He has
also argued that the learned Magistrate has not considered the
evidence of the witnesses. He 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. He,
therefore, contended that the order of acquittal passed by the
learned Magistrate is without appreciating the facts and evidence on
record and is, therefore, 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
respondent-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.

Even
in a 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, found that the sample was not taken after following proper
procedure. It is also observed by the learned Magistrate that
prosecution has failed to follow mandatory provision of Rule 14 of
the Rules. It is also observed by the learned Magistrate that
prosecution has also not followed provision of Section 13(2) of the
Act. The learned Magistrate has also observed that there are
contradiction in the oral evidence of complainant and his Assistant.
It is also observed by the learned Magistrate that witness Savitaben
was declared hostile by the prosecution. Thus, by relying only on
the oral evidence of complainant, it cannot be said that prosecution
has proved its case beyond reasonable doubt. 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.

Mr.H.H.

Parikh, 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
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 30th
December 2009 passed by the learned Chief Judicial Magistrate,
Himmatnagar, in Criminal Case No.3365 of 2007 is hereby confirmed.
Bail bond, if any, shall stand discharged. Record and Proceedings,
if any, be sent back to the trial Court concerned forthwith.

(Z.

K. Saiyed, J)

Anup

   

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