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CR.A/193/2003 7/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 193 of 2003
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
Versus
HASMUKHBHAI
NEMCHAND SHAH
=========================================
Appearance
:
MR HL JANI ADDL. PUBLIC
PROSECUTOR for Appellant
MR MD MODI for
Respondent
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 11/02/2010
ORAL
JUDGMENT
[1] The
present appeal, under section 378 of the Code of Criminal Procedure,
1973, is directed against the judgment and order of acquittal dated
25.10.2002 passed by the learned Chief Judicial Magistrate, Ahmedabad
(Rural), Navrangpura, Ahmedabad, in Criminal Case No.1452 of 1994,
whereby the accused has been acquitted of the charges leveled against
him.
[2] The
brief facts of the prosecution case are that on 21.07.1993, at about
9.45 a.m., the complainant visited the shop of the accused along with
the panchas where the complainant found that the accused had kept 2
k.g. pepper in an iron box for retail selling. The complainant, Food
Inspector took the sample of pepper from the shop of the accused for
the purpose of analysis. After following due procedure, the sample
was sent to the Public Analyst for the purpose of analysis
as per the provisions of the Act, whose report indicates that the
sample is adulterated and a complaint was filed in the Court of
learned Chief Judicial Magistrate, which came to be registered as
Criminal Case No.1452 of 1994 under the provisions of the
Prevention of Food Adulteration Rules, 1955 (for short PFA
Rules ).
[3] To
prove the case against the present accused, the prosecution has
examined the witnesses and also produced documentary evidence.
[4] 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 of all the charges leveled against him by judgment and
order dated 25.10.2002.
[5] Being
aggrieved by and dissatisfied with the aforesaid judgment and order
passed by the trial Court the appellant State has preferred the
present appeal.
[6] It
was contended by Mr.H. L. Jani, learned APP 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 offence
against the present respondent. Learned APP contended that the trial
Court has erred in appreciating that there is a breach of Rule 14 of
the Rules as the vessel used for taking the sample was not cleaned on
the spot and appreciated that there is a prohibition of using mineral
oil in pepper under Rule 44(aaa) of the Rules. Learned APP has also
taken this court through the oral as well as the entire documentary
evidence.
[7] 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.
[8] 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.
[9] 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.
[10] 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,
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 evidence 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.
[11] 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.
[12] 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.
[13] Thus,
in case the appellate court agrees with the reasons and the opinion
given by the trial court, then the discussion of evidence is not
necessary.
[14] 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 has clearly recorded a
finding that the prosecution has failed to prove the procedure under
Rule 44(aaa) of the PFA Rules which is mandatory and has also failed
to prove the provisions of Section 13(2) of the PFA Act. I have also
perused the documentary evidence and evidence of the witnesses from
which it appears that the prosecution has not followed the provisions
of Section 20 of the PFA Act and Rule 14 of the PFA Rules. Thus, from
the evidence itself it is established that the prosecution has not
proved its case beyond reasonable doubt.
[15] Mr.H.
L. 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.
[16] 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.
[17] 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.
[18] I,
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. Bail bonds, if any, stands cancelled. R &
P to be sent back to the trial Court immediately.
[
Z. K. SAIYED,J. ]
(vijay)
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