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2010 DIGILAW 88 (GUJ)

State of Gujarat v. Ahmedbahi Ismilebhai Gandhi

2010-02-22

Z.K.SAIYED

body2010
JUDGMENT : Z. K. Saiyed, J. The appellant - State of Gujarat, has preferred this Appeal under Section 378(1)(3) of the Code of Criminal Procedure against the Judgment and order of acquittal dated 06.07.2002 passed by the learned Judicial Magistrate, First Class, Petlad, in Criminal Case No. 2822 of 1990, whereby the learned Magistrate has acquitted the respondent - original accused of the charges levelled against him. 2. The short facts of the prosecution case is that the complainant, Food Inspector, visited the business place of accused and took the sample of Black Pepper and sent the same to the Public Analyst for the purpose of analysis. On examination, the Public Analyst found that the said sample does not conform to the standard and the provisions laid down under the Prevention of Food Adulteration Rules, 1955. Thereafter, after obtaining necessary sanction the Food Inspector filed case against the accused in the court of learned Magistrate. 3. Thereafter the trial was conducted before the learned Magistrate. The prosecution has examined the witnesses and also relied upon the 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, vide Judgment and order dated 06.07.2002. 4. Being aggrieved and dissatisfied with the said Judgment and order dated 06.07.2002 passed by the learned Magistrate, in Criminal Case No. 2822 of 1990, the appellant - State of Gujarat, has preferred the above mentioned Criminal Appeal. 5. I have heard learned P.P., appearing on behalf of the appellant - State and the learned Advocate, appearing on behalf of the respondent - original accused. I have also gone through the papers and the Judgment and order passed by the trial Court. 6. Learned PP 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 if the date of analysis is different from the date of the report, it does not affect the evidentiary value of the analysis. 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 if the date of analysis is different from the date of the report, it does not affect the evidentiary value of the analysis. He, therefore, contended that the Judgment and order passed by the learned Magistrate is without appreciating the facts and evidence on record. 7. 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. 8. I have gone through the Judgment of the trial Court. I have also perused the reasons assigned by the learned Magistrate. 9. 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 v. 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 judgement 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. 10. 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. 11. Even in a recent decision of the Apex Court in the case of State of Goa V. Sanjay Thakran & Anr. 11. 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 755 , the Court has reiterated the powers of the High Court in such cases, more particularly para 16 of the said decision. 12. Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh v. Ram Veer Singh & Ors, reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs v. 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. 13. 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 v. Hemareddy, reported in AIR 1981 Supreme Court 1417. 14. 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. 15. 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. 16. The trial court has, after appreciating the oral as well as documentary evidence, has found that the prosecution has not examined the Analyst who has analyzed the sample. The trial Court has also found that the Food Inspector has not followed the Rule 14 of the Rules. The trial Court, from the record, has also found that the sample was examined on 14.3.1990, however, the Public Analyst has signed the Report on 25.4.1990. The learned Magistrate has also found that the story put-forward by the prosecution is not believable. The trial Court has also found 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. 17. Thus, the appellant could not bring home the charge against the respondents - accused in the present Appeal. The trial Court has also found 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. 17. 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 appellant - accused. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt. 18. Learned PP 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. 19. In above view of the matter, I am of the considered opinion that the trial court was completely justified in acquitting the respondents 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. 20. 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. 21. In view of above the Appeal is dismissed. The judgment and order dated 06.07.2002 passed by the learned Magistrate, in Criminal Case No. 2822 of 1990 acquitting the respondent - accused from the charges levelled against him is hereby confirmed. Bail bonds, if any, shall stand cancelled. R & P may be sent back to the trial Court. Appeal dismissed.