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CR.A/736/1996 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 736 of 1996
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 & 1 - Appellant(s)
Versus
SHANTILAL
NATVERLAL SHAH & 1 - Opponent(s)
=========================================
Appearance :
MR
HL JANIL, LD. ADDL. PUBLIC PROSECUTOR
for Appellant(s) : 1,
None
for Opponent(s) : 1 - 2.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 30/11/2010
ORAL
JUDGMENT
The
appellant-State has preferred the present appeal under Section 378
of the Code of Criminal Procedure, 1973 against the Judgment and
Order of acquittal dated 30th April 1996 passed by the
learned Sessions Judge, Surendranagar, in Criminal Appeal No.40 of
1995 whereby the learned Sessions Judge has set aside the judgment
and order dated 03rd June 1995 passed by the learned
Judicial Magistrate First Class, Surendrangar in Criminal Case
No.1443 of 1991 and acquitted the respondents-accused of the charges
levelled against them.
The
short facts of the prosecution case is that the appellant No.2 is
serving as Food Inspector. It is the case of the original
complainant that on 05th April 1991 between 12:30 and
16:20 hours, the complainant had visited M/s. Shantilal Shah Firm
where Mr.Shantilal Natvarlal Shah was present and was doing business
of selling Chilly Powder, Turmeric Powder, etc. It is also the case
of the complainant that the complainant had taken 450 gms. of Chilly
Powder of Sadam brand 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,
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 Judicial Magistrate
First Class, Surendranagar 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 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 vide his order dated
03rd June 1995 convicted the respondents-accused under
the Prevention of Food Adulteration Act. The learned Magistrate has
convicted the respondents-accused and ordered to undergo rigorous
imprisonment for a period of two years and fine of Rs.02,000/- each,
and in default of payment of fine, ordered to undergo simple
imprisonment for a further period of six months.
Being
aggrieved by and dissatisfied with the said order dated 03rd
June 1995 passed by the learned Judicial Magistrate First Class,
Surendranagar in Criminal Case No.1443 of 1991, present
respondents-accused preferred appeal being Criminal Appeal No.40 of
1995 before the Court of Sessions, Surendranagar. The said Appeal
was heard by the learned Sessions Judge, Surendranagar. After
hearing the parties, the learned Sessions Judge by his order dated
30th April 1996 set aside the judgment and order dated
03rd June 1995 passed by the learned Judicial Magistrate
First Class, Surendranagar, in Criminal Case No.1443 of 1991 and
acquitted the respondents-accused from the charges levelled against
them.
Being
aggrieved and dissatisfied with the said Judgment and Order of
acquittal dated 30th April 1996 passed by the learned
Sessions Judge, Surendranagar, in Criminal Appeal No.40 of 1995, the
appellant-State of Gujarat, has preferred the above mentioned
Criminal Appeal.
Heard
Mr. H.L. Jani, learned Additional Public Prosecutor for the
appellant-State. I have also gone through the papers and the
Judgment and Order passed by the Courts below.
Mr.Jani
has taken me through the evidence of prosecution witnesses and the
documentary evidence and submitted that from the above evidence it
is established that the prosecution has successfully proved its case
beyond reasonable doubt. He has contended that the trial Court has
rightly held the respondents-accused guilty for the offences
alleged against them and, therefore, the Sessions Court, in Appeal,
should not have interfered with the said findings of the trial
Court. He has contended that witnesses have supported the case of
the prosecution and the learned Sessions Judge has committed grave
error in disbelieving and discarding the evidence of witnesses. He,
therefore, contended that the judgment and order passed by the
learned Sessions Judge setting aside the judgment of the trial Court
by acquitting the respondents-accused from the charges levelled
against them, is without appreciating the facts and evidence on
record. He, therefore, contended that the order passed by the
learned Sessions Judge, Surendranagar is required to be set aside.
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 judgment and order passed by the trial Court
as well as of the Sessions Court. I have also perused the reasons
assigned by both the Courts below and also considered the
submissions advanced by learned counsel for the parties.
The
Sessions court has, after appreciating the oral as well as
documentary evidence, found that when public analyst has not been
examined, report of the public analyst has no value in eye of law.
It is also observed by the learned Sessions Judge that when report
of the public analyst does not disclose full and complete data of
the experiment and tests performed by him, no probative value be
attached to the same in order to record conviction and sentence to
respondents-accused. It is also observed by the learned Judge that
filing of a document is not sufficient, it must be proved in
accordance with law. In the instance case, xerox copy of bill cannot
be said to be proved document. It is also observed by the learned
Sessions Judge that the Food Inspector has not properly followed the
procedure laid down in the Act. It is also observed by the learned
Sessions Judge that the prosecution has failed to prove beyond
reasonable doubt the case against the respondents-accused.
The learned Judge has also observed that there are serious lacuna in
the oral as well as documentary evidence of prosecution.
Thus,
the appellant could not bring home the charge 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.L.
Jani, learned learned Additional Public Prosecutor 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 Sessions
Court is vitiated by some manifest illegality or that the decision
is perverse or that the learned Sessions Judge has ignored the
material evidence on record.
In
above view of the matter, I am of the considered opinion that the
Sessions Court was completely justified in setting aside the
judgment and order of conviction passed by the trial Court and
acquitting the respondents-accused of the charges leveled
against them. I find that the findings recorded by the Sessions
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
Sessions Court and hence find no reasons to interfere with the same.
Hence the appeal is hereby dismissed.
In
view of above, appeal is dismissed. The judgment and order dated
30th
April 1996 passed by the learned Sessions Judge, Surendranagar, in
Criminal Appeal No.40 of 1995 acquitting the respondents-accused of
the charges levelled against them, by setting aside the judgment and
order dated 03rd
June 1995 passed by the learned Judicial Magistrate First Class,
Surendranagar, in Criminal Case No.1443 of 1991 holding the
respondents-accused guilty of the charges levelled against
them, is hereby confirmed. Bail bond, if any, shall stands
discharged. Record & Proceedings, if any, be sent back to the
trial Court concerned, forthwith.
(Z.
K. Saiyed, J)
Anup
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