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CR.A/1180/2010 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1180 of 2010
=========================================
STATE
OF GUJARAT - Appellant(s)
Versus
CHHAGANLAL
NAROTTAMDAS & 2 - Opponent(s)
=========================================
Appearance
:
MR HL JANI
ADDITIONAL PUBLIC
PROSECUTOR for Appellant(s) : 1,
None for Opponent(s) : 1 -
3.
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CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 24/11/2010
ORAL
ORDER
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 12.3.2010 passed by the learned Judicial Magistrate
First Class, Kathor in Criminal Case No.2250 of 1995, 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
Food Inspector visited the shop of the original accused –
respondent on 16.6.1995 and at that time, the respondent No.2 was
present. The Food Inspector purchased the sample of 400 Grm.
Groundnut oil (Sonarupa) and after following due procedure, he sent
the sample to the Public Analyst. As per the report of the Public
Analyst, the said sample does not conform the standards and not found
as per the provisions prescribed under the Prevention of Food
Adulteration Act, 1954. Thereafter, the Food Inspector obtained
permission of the Local Health Authority and filed complaint against
the present accused for the offences punishable under Sections 2(ai)
(a)(b)(c), 2(ia),(m), 7(i), 7(v) and 16 of the Prevention of Food
Adulteration Act before the Court of learned Judicial Magistrate
First Class, Kathor.
2.2 Necessary
investigation was carried out and statements of several witnesses
were recorded and thereafter, the chargesheet was filed against the
accused persons before the court of learned JMFC, Kadhor.
2.3 To
prove the case against the present accused, the prosecution has
examined in all two witnesses and also produced documentary
evidence.
2.4 At
the end of trial, after hearing arguments on behalf of prosecution
and the defence, the learned trial Judge acquitted the present
respondents of all the charges leveled against them by judgment and
order dated 12.3.2010.
2.5 Being
aggrieved by and dissatisfied with the aforesaid judgment and order
passed by the trial Court the appellant State has preferred the
present appeal.
3. It
was contended by learned APP 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
complainant – Food Inspector has proved the whole ingredients
of the evidence against the present respondents. Learned APP has also
taken this court through the oral as well as the entire documentary
evidences.
4. 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.
5. 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.”
6. Thus,
after considering ratio laid down by Apex Court in catena of
decisions and 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.
7. 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
APP for the appellant-State. I also perused the order of the learned
JMFC, Kathod. As per the provisions of Section 13(2) of the Act, the
notice is not sent to the parties which is at Exhibit 111. From the
perusal of the evidence of witness Chandrasinh Patanvadiya, who is a
office clerk, he has admitted in cross-examination that he has not
prepared the notice under Section 13(2) of the Act and he has not
produced any evidence to prove that the notice was sent by him. The
notices are very well produced, but it is not established on record
that the notices were sent to the accused person. Even the
prosecution has never bothered to examine the Assistant Commissioner
of LHA. Therefore, it crystal clear that the complainant has not
followed the provisions under Section 13(2) and Rule 14 of the Act.
The trial court has clearly recorded a finding aforesaid and held
that the prosecution has totally failed to prove documentary evidence
in connection of the complaint lodged against the accused. Thus, from
the evidence itself it is established that the prosecution has not
proved its case beyond reasonable doubt.
8. 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.
9. In
the 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.
10. 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.
11. 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 bond, if any, stands cancelled.
Record and proceedings to be sent back to trial Court, forthwith.
(Z.K.
SAIYED, J.)
ynvyas
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