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CR.A/2198/2010 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 2198 of 2010
=========================================
STATE
OF GUJARAT, FOR & ON BEHALF OF, TRILOKKUMAR BABUBHAI -
Appellant(s)
Versus
SAVJIBHAI
LALJIBHAI VASANI - Opponent(s)
=========================================
Appearance :
MR
HL JANI, LD. ADDL. PUBLIC PROSECUTOR
for Appellant(s) : 1,
None
for Opponent(s) : 1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 23/02/2011
ORAL
ORDER
The
appellant-State of Gujarat has preferred the present appeal under
Section 378(4) of the Code of Criminal Procedure, 1973 against the
Judgment and Order of acquittal dated 04th August 2010
passed by the learned Chief Judicial Magistrate, Rajkot, in Criminal
Case No.2078 of 1985 for the offences punishable under the
Prevention of Food Adulteration Act, 1954, whereby the learned
Magistrate has acquitted the respondent-original accused of the
charges levelled against him.
The
short facts of the prosecution case is that on 19th July
1984 the complainant-Food Inspector along with panch witness visited
the shop of the respondent. It is the case of the complainant-Food
Inspector that at that point of time the respondent-accused was
present and was doing business. It is the case of the complainant
that after giving his identity as Food Inspector, the complainant
purchased Mirchi Powder in presence of panch witness as sample and
also paid consideration for the same. It is also the case of the
complainant that after following due procedure of sealing, the
sample was sent for analysis. On examination, the Public Analyst
found that the said sample does not conform to the standard
prescribed under the Prevention of Food Adulteration Act, 1954.
Therefore, after following the due procedure, complaint was filed
against the respondent-accused in the Court of learned Chief
Judicial Magistrate, Rajkot for the offences punishable under the
Prevention of Food Adulteration Act, 1954.
Thereafter,
upon service of summons, the respondent-accused appeared before the
Court and as the accused not pleaded guilty, the trial commenced.
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. Thereafter, further statement of
respondent-accused was recorded under Section 313 of the Code of
Criminal Procedure, 1973.
Thereafter,
after considering the oral as well as documentary evidence, the
learned Magistrate has acquitted the respondent-original accused
from the charges alleged against him by his Judgment and Order of
acquittal dated 04th August 2010.
Being
aggrieved and dissatisfied with the said Judgment and Order of
acquittal dated 04th
August 2010 passed by
the learned Chief Judicial Magistrate, Rajkot, in Criminal Case
No.2078 of 1985, the complainant-Food Inspector through State of
Gujarat has preferred the above mentioned Criminal Appeal.
Heard
Mr.H.L. Jani, learned Additional Public Prosecutor, appearing on
behalf of the appellant-State.
Mr.Jani,
learned counsel for the appellant, 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
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
respondents-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. Hence, this
appeal requires to be dismissed.
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.
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, observed that when there is difference between the report
of Public Analyst and Central Food Laboratory, then
respondent-accused cannot be pleaded guilty. Even the prosecution
has failed to prove that the rice starch is injurious to health.
Even there is a delay in filing the complaint. Thus, prosecution has
failed to prove its case beyond reasonable doubt against the
respondent-original accused. The trial Court has 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. Prosecution has failed to
prove the case beyond reasonable doubt against the
respondent-original accused.
Thus,
the appellant could not bring home the charges against the
respondent-original accused in the present appeal. The prosecution
has miserably failed to prove the case against the
respondent-original accused beyond reasonable doubt. Thus, from the
evidence itself it is established that the prosecution has not
proved its case beyond reasonable doubt.
Mr.Jani,
learned counsel for the appellant, 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
respondent-original accused of the charges levelled against him for
want of evidence.
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 04th
August 2010 passed by the learned Chief Judicial Magistrate, Rajkot,
in Criminal Case No.2078 of 1985 is hereby confirmed. Bail bond, if
any, shall stands discharged. Record and Proceedings, if any, be
sent back to the trial Court concerned, forthwith.
(Z.
K. Saiyed, J)
Anup
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