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CR.A/979/1993 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 979 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 ?
=========================================================
THE
STATE OF GUJARAT - Appellant(s)
Versus
AMRUTLAL
HARILAL - Opponent(s)
=========================================================
Appearance
:
MR
HL JANI, APP for Appellant(s) : 1,
MR CH VORA for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 29/11/2010
ORAL
JUDGMENT
1.0
The present appeal, under section 378 of the Code of Criminal
Procedure, 1973, is directed against the judgment and order of
acquittal dated 19.05.1993 passed by the learned JMFC, Anjar in
Criminal Case No. 1737 of 1988, whereby the accused- respondent no.
1 has been acquitted of the charges under sec. 7 and 16 of the
Prevention of Food Adulteration Act, leveled against him.
2.0
The brief facts of the prosecution case are as under:
2.1
As per the case of the prosecution, Food Inspector Shri JA Kadri, on
22.4.1988 visited the lorry of cold-drinks of the respondent no. 1
accused and collected the sample of “Vimto Sarbat” for
the purpose of analysis in a clean bottle in the presence of panchas.
Thereafter, he sealed it and put his signature as well as signatures
of panchas and sealed it and after following prescribed procedure, he
sent it for analysis. The sample being found adulterated, after
obtaining necessary sanction, filed the complaint before the Court,
which was numbered as Criminal Case No. 1737 of 1988. The trial was
initiated against the respondent no. 1.
2.2
To prove the case against the present accused, the prosecution has
examined the witnesses and also produced documentary evidence.
2.3
At the end of trial, after recording the statement of the accused
under section 313 of Cr.P.C., and hearing arguments on behalf of
prosecution and the defence, the learned trial Judge acquitted the
respondent no. 1 of all the charges leveled against him by judgment
and order dated 19.5.1993.
2.4
Being aggrieved by and dissatisfied with the aforesaid judgment and
order passed by the trial Court the appellant State has preferred the
present appeal.
3.0
It was contended by learned APP Mr Pandya 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
prosecution has proved the whole ingredients of the evidence against
the present respondent. Learned APP has also taken this court through
the oral as well as the entire documentary evidence. He further
contended that the prosecution has already followed the provisions of
PFA Act, but the same was not considered by the learned Judge.
4.0
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.”
4.1
Further, in the case of Chandrappa
Vs. State of Karnataka, reported in (2007)4 SCC 415
the Apex
Court laid down the following principles:
“42.
From the above decisions, in our considered view, the following
general principles regarding powers of the appellate court while
dealing with an appeal against an order of acquittal emerge:
[1]
An appellate court has full power to review, reappreciate and
reconsider the evidence upon which the order of acquittal is founded.
[2]
The Code of Criminal Procedure, 1973 puts no limitation, restriction
or condition on exercise of such power and an appellate court on the
evidence before it may reach its own conclusion, both on questions of
fact and of law.
[3]
Various expressions, such as, “substantial and compelling
reasons”, “good and sufficient grounds”, “very
strong circumstances”, “distorted conclusions”,
“glaring mistakes”, etc. are not intended to curtain
extensive powers of an appellate court in an appeal against
acquittal. Such phraseologies are more in the nature of “flourishes
of language” to emphasis the reluctance of an appellate court
to interfere with acquittal than to curtail the power of the court to
review the evidence and to come to its own conclusion.
[4]
An appellate court, however, must bear in mind that in case of
acquittal there is double presumption in favour of the accused.
Firstly, the presumption of innocence is available to him under the
fundamental principle of criminal jurisprudence that every person
shall be presumed to be innocent unless he is proved guilty by a
competent court of law. Secondly, the accused having secured his
acquittal, the presumption of his innocence is further reinforced,
reaffirmed and strengthened by the trial court.
[5]
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.”
4.2
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.
4.3
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,
more particular in Para 16 of the said decision, 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:
4.4
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.
4.5
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 reasonings, 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,
wherein,
it is held as under:
“…
This court has
observed in Girija Nandini Devi V. Bigendra
Nandini Chaudhary (1967)1 SCR 93: (AIR 1967 SC 1124) that
it is not the duty of the appellate court when it agrees with the
view of the trial court on the evidence to repeat the narration of
the evidence or to reiterate the reasons given by the trial court
expression of general agreement with the reasons given by the Court
the decision of which is under appeal, will
ordinarily suffice.”
4.6
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.
5.0
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 while considering the
oral as well as documentary evidence has clearly observed that the
prosecution has failed to follow the prescribed rules of PFA Act.
Even in the present appeal, nothing is produced or pointed out to
rebut the conclusion of the trial Court. Thus, from the evidence
itself it is established that the prosecution has not proved its case
beyond reasonable doubt.
6.0
Mr. Jani 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.
6.0
In the above view of the matter, I am of the considered opinion that
the trial court was completely justified in acquitting the respondent
of the charges leveled against him.
7.0
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.
8.0
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. R & P to be sent back to the trial
Court, forthwith. Bail bond, if any, stands cancelled.
(Z.K.
SAIYED, J.)
sas
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