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CR.A/878/2010 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 878 of 2010
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STATE
OF GUJARAT ON BEHALF OF A K KHER - Appellant(s)
Versus
DIPAK
LAXMIDAS CHANDARANA M/S BHAVNA DAIRY,SARDAR PATEL - Opponent(s)
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Appearance
:
MR HL JANI,
LD. ADDL. PUBLIC PROSECUTOR for
Appellant(s) : 1,
None for Opponent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 06/12/2010
ORAL
ORDER
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 28th January 2010 passed by the learned
Second Additional Senior Civil Judge & Judicial Magistrate First
Class, Porbandar, in Criminal Case No.13102 of 2000 for the offences
punishable under the Prevention of Food Adulteration Act, 1954,
whereby the learned Magistrate has acquitted the respondent-accused
from the charges levelled against him.
The
short facts of the prosecution case is that the complainant along
with panch witness visited the shop of the respondent-accused where
the respondent was doing his business. It is the case of the
complainant that the complainant had taken Shrikhand with Dry Fruits
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,
Vadodara for analysis. On examination, the Public Analyst found that
the said sample was adulterated and does not conform to the
standards and provisions laid down 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 Second Additional Senior Civil Judge & Judicial
Magistrate First Class, Porbandar 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 28th January 2010.
Being
aggrieved and dissatisfied with the said Judgment and Order of
acquittal dated 28th January 2010 passed by the learned
Second Additional Senior Civil Judge & Judicial Magistrate First
Class, Porbandar, 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 learned Second Additional Senior
Civil Judge & Judicial Magistrate First Class, Porbandar.
Mr.Jani,
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 the prosecution has failed to follow mandatory
provision of Section 14 of the Act. Even complainant himself has
stated that bottles were not made clean at the place. It is also
observed by the learned Judge that the container, in which sample
was sent to the Public Analyst, was not sealed. It is also observed
by the learned Judge that Public Analyst had not observed in his
report that the colour used in Shrikhand was injurious to health or
not. Thus, the prosecution has not proved its case beyond reasonable
doubt. It is also observed by the learned Judge 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.L.
Jani, 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 28th
January 2010 passed by the learned Second Additional Senior Civil
Judge & Judicial Magistrate First Class, Porbandar, in Criminal
Case No.13102 of 2000 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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