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CR.A/761/2010 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 761 of 2010
=========================================
STATE
OF GUJARAT - Appellant(s)
Versus
PATEL
GOVINDBHAI SOMABHAI - Opponent(s)
=========================================
Appearance
:
MR HH PARIKH ADDITIONAL PUBLIC
PROSECUTOR for Appellant(s) : 1,
None for Opponent(s) :
1,
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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 29.9.2009 passed by the learned Judicial Magistrate
First Class, Unja in Criminal Case No.878 of 1998, whereby the
accused has been acquitted from the charges leveled against him.
2. The
brief facts of the prosecution case are as under:
2.1 The
Food Inspector visited the shop of the original accused –
respondent herein on 19.8.1998 and he purchased the sample of Red
Powder in the presence of panch witness and after following due
procedure, the said sample was stored and sealed. Thereafter, he
sent the sample to the Public Analyst. As per the report of the
Public Analyst, the said sample is adulterated and not 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 in
the Court of learned Judicial Magistrate First Class, Unja.
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, Unja.
2.3 To
prove the case against the present accused, the prosecution has
examined, in all 2 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 29.9.2009.
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 by the
trial court and also considered the submissions made by learned APP
for the appellant-State. The trial court has clearly recorded a
finding that the prosecution has totally failed to prove documentary
evidence in connection of the complaint lodged against the accused.
Even the sample, which was taken in wrongful manner. Thus, from the
evidence itself it is established that the prosecution has not proved
its case beyond reasonable doubt.
8. Mr.
Parikh, 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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