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CR.A/2044/2004 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 2044 of 2004
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 ?
=========================================================
THE
STATE OF GUJARAT - Appellant(s)
Versus
LALCHAND
LAXMINARAYAN AGRAWAL & 1 - Opponent(s)
=========================================================
Appearance
:
MR
AJ DESAI, LD. ADDL. PUBLIC PROSECUTOR
for
Appellant(s) : 1,
MR TUSHAR CHAUDHARY for Opponent(s) :
1,
UNSERVED-EXPIRED (N) for Opponent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 25/01/2010
ORAL
JUDGMENT
The
appellant-State of Gujarat, has preferred this Appeal under Section
378(1)(3) of the Code of Criminal Procedure, 1973 against the
judgment and order of acquittal dated 31st August 2004
passed by the learned Chief Magistrate, Palanpur, Banaskantha, in
Criminal Case No. 11258 of 1988, 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 complainant-Food
Inspector had visited the business place of accused no.1 at about
10:15 hours on 16th May 1988 and purchased Peppermint as
sample in presence of two panchas. After following the necessary
procedure, the complainant had sent the said sample for analysis to
the Public Analysis, Vadodara. On examination, the Public Analyst
declared that the colour used in preparation of the said peppermint
is prohibited colour. Thereafter, after obtaining necessary
permission from the Local Health Authority, Mehsana, filed a
complaint on 08th September 1988 in the Court of the
learned Chief Magistrate, Palanpur, Banaskantha.
Thereafter
the 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 the
judgment and order dated 31st August 2004.
Being
aggrieved and dissatisfied with the said judgment and order dated
31st August 2004 passed by the learned Magistrate in
Criminal Case No. 11258 of 1988, the appellant-State of Gujarat, has
preferred the above mentioned Criminal Appeal.
I
have heard Mr. A.J. Desai, learned Additional Public Prosecutor,
appearing on behalf of the appellant-State and learned advocate,
appearing on behalf of respondent-accused. I have also gone through
the papers and the judgment and order passed by the Trial Court.
Mr.
A.J. Desai, learned Additional Public Prosecutor for the appellant,
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 witnesses have
supported the case of the prosecution and the learned Magistrate has
committed grave error in disbelieving and discarding the evidence of
witnesses. He also contended that the learned Magistrate has not
considered the fact that the Food Inspector has followed the proper
procedure while collecting the sample. He, therefore, contended that
the judgment and order passed by the learned Magistrate is without
appreciating the facts and evidence on record.
Learned
advocate for the respondent-accused has supported the judgment and
order of the Trial Court and contended that the Food Inspector has
not followed the mandatory rules and the prosecution has failed to
establish prima-facie case against the accused.
I
have gone through the judgment of the Trial Court. I have also
perused the reasons assigned by the learned Magistrate.
At
the outset it is required to be noted that the principles which
would govern and regulate the hearing of appeal by this Court
against an order of acquittal passed by the Trial Court have been
very succinctly explained by the Apex Court in a catena of
decisions. In the case of
M.S. Narayana Menon @ Mani Vs. State of Kerala & Anr, reported
in (2006)6 SCC, 39,
the Apex Court has narrated about the powers of the High Court in
appeal against the order of acquittal. In para 54 of the decision,
the Apex Court has observed as under:
54.
In any event, the High Court entertained an appeal treating to be
an appeal against acquittal, it was in fact exercising the
revisional jurisdiction. Even while exercising an appellate power
against a judgment of acquittal, the High Court should have borne in
mind the well-settled principles of law that where two view
are possible, the appellate court should not interfere with
the finding of acquittal recorded by the court below.
Thus,
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.
Even
in a recent 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.
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 judgment
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 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.
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. I have also
perused the oral as well as documentary evidence led before the
Trial Court and also considered the submissions made by learned
Advocate for the appellant.
The
Trial Court has, after appreciating the oral as well as documentary
evidence, found that the Food Inspector has committed breach of
mandatory provisions of the Rules while taking the sample. It is
also observed that the prosecution has failed to follow Rule 17 of
the Rules. The prosecution has not served notice under section
13(2) to the respondent-accused.
The complainant has sent two samples of two different cases to the
Public Analyst, but the complainant has not filed the case with
regard to the second sample. Thus, the oral evidence of the
complainant is contradictory with the documents produced at Exh. 45
to 48. The Trial Court has observed that there are serious lacunae
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.
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 him. 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
court below and hence find no reasons to interfere with the same.
Hence the appeal is hereby dismissed. Record and Proceedings to be
sent back to the Trial Court, forthwith. Bail bonds, if any, shall
stands cancelled.
(Z.
K. Saiyed, J)
Anup
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