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CR.A/630/1993 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 630 of 1993
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
BASHIR
AHMAD MIYA AHMAD - Opponent(s)
=========================================
Appearance
:
MR HH
PARIKH, LD. ADDL. PUBLIC PROSECUTOR
for Appellant(s) : 1,
MR
JV JAPEE for Opponent(s) :
1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 26/11/2010
ORAL
JUDGMENT
The
appellant has preferred the present Appeal under Section 378 of the
Code of Criminal Procedure, 1973 against the Judgment and Order of
acquittal dated 24th February 1993 passed by the learned
Chief Judicial Magistrate, Himmatnagar, in Criminal Case No.915 of
1992 for the offences punishable under the Prevention of Food
Adulteration Act, 1954, whereby the learned Magistrate has acquitted
the respondent-accused of the charges levelled against him.
The
short facts of the prosecution case is that the appellant is serving
as Food Inspector. It is the case of the complainant that on 25th
February 1992 at about 14:00 hours, the complainant visited the shop
of the respondent along with his assistant and had taken 900 gms. of
colour biscuits as sample after paying consideration. It is also 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,
Rajkot 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
respondent-accused in the Court of learned Chief Judicial
Magistrate, Himmatnagar for violation of 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 issued against the respondent-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
respondent-accused from the charges alleged against him by his
Judgment and Order of acquittal dated 24th February 1993.
Being
aggrieved and dissatisfied with the said Judgment and Order of
acquittal dated 24th February 1993 passed by the learned
Chief Judicial Magistrate, Himmatnagar, in Criminal Case No.915 of
1992, 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. I have also gone through the papers and the
Judgment and Order passed by the learned Magistrate.
Mr.Parikh,
learned Additional Public Prosecutor, 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 though it is the case of the complainant that
all the procedure of sampling has been done in the presence of his
assistant, prosecution has not examined the assistant of the
complainant. Therefore, only evidence of complainant cannot be
considered. It is also observed by the learned Magistrate that the
sample was taken on 26th February 1992, analysis was done
on 11th March 1992 and complaint was filed on 19th
May 1992. Thus, there is a delay of more than three months in filing
the delay after the sample was taken. The complainant had not
explained the delay of more than three months in filing the
complaint. It is also observed by the learned Magistrate that report
of the Central Food Laboratory is contrary to the report of the
Public Analyst and the report of the Central Food Laboratory
supersedes the report of the public analyst and therefore, report of
the public analyst have no importance. The report of the Central
Food Laboratory do not suggest that any prohibited colour was used
in preparation of biscuit. It is also observed by the learned
Magistrate that the prosecution has not proved the case against the
respondent-accused 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
respondent-accused in the present appeal. The prosecution has
miserably failed to prove the case against the respondent-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
respondent-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 24th
February 1993 passed by the learned Chief Judicial Magistrate,
Himmatnagar, in Criminal Case No.915 of 1992 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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