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2015 DIGILAW 845 (GUJ)

State of Gujarat v. Triveni Medical Stores

2015-09-01

G.B.SHAH, K.S.JHAVERI

body2015
Judgment K.S. Jhaveri, J. 1. Present appeal as well as Criminal Revision Application have been directed against the judgment and order dated 06/09/1993 passed by the learned Additional Sessions Judge, Baroda in ESTP Case No. 4 of 1990, whereby the accused have been acquitted of the charges levelled against them. 2. The brief facts of the prosecution case are that the respondent No. 2 herein - original accused No. 2 was running the medical store in the name of Triveni Medical Store, the respondent No. 1 herein. The Baroda Municipal Corporation, with whom the accused had an agreement for supply of medicines for municipal medical store, received the complaint that the accused was used to charge higher price than the price fixed for the medicines by the Government and hence, on 21/03/1990, raid was conducted in the accused No. 1 - medical store and the documents were seized, the statement of the accused No. 2 was recorded and on investigation, it was found that the accused found to have sold the drugs at a higher price than what was fixed by the Government. Accordingly, the accused alleged to have committed the offence punishable under clauses 18 and 22 of the Drugs (Price Control) Order, 1987 and Section 3 r/w. Sections 7 and 10 of the Essential Commodities Act, 1955. 3. In order to bring home the charge against the respondents - original accused, the prosecution has examined as many as 02 witnesses and also produced several documentary evidence. At the end of the trial, the learned trial Judge acquitted the respondents - accused of the charges levelled against them by impugned judgment and order. Being aggrieved and dissatisfied with the aforesaid judgment and order passed by the learned Sessions Judge, the appellant - State has preferred the present appeal and the original complainant has preferred the Criminal Revision Application. 4. We have heard Mr. L.R. Pujari, learned Additional Public Prosecutor for the appellant - State as well as Mr. Vijay Patel, learned advocate for the respondents - accused, at length. 5. 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 Hon'ble Apex Court in catena of decisions. Vijay Patel, learned advocate for the respondents - accused, at length. 5. 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 Hon'ble Apex Court in catena of decisions. In the case of M.S. Narayana Menon @ Mani v. State of Kerala & Anr., reported in (2006) 6 SCC 39 , the Hon'ble 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 Hon'ble 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." 5.1. Further, in the case of Chandrappa v. State of Karnataka, reported in (2007) 4 SCC 415 the Hon'ble Apex Court has 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. 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." 5.2. Thus, it is a settled principle that while exercising appellate powers, 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. 5.3. Even in a recent decision of the Hon'ble 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. 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." 5.4. Similar principle has been laid down by the Hon'ble 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. 5.5. In the case of Luna Ram v. Bhupat Singh and Ors., reported in (2009) SCC 749, the Hon'ble Apex Court in paras 10 and 11 has held as under: "10. The High Court has noted that the prosecution version was not clearly believable. Some of the so-called eye witnesses stated that the deceased died because his ankle was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The doctor who conducted the post-mortem and examined the witnesses had categorically stated that it was not possible that somebody would throw a person out of the bus when it was in a running condition. 11. Considering the parameters of appeal against the judgment of acquittal, we are not inclined to interfere in this appeal. The view of the High Court cannot be termed to be perverse and is a possible view on the evidence." 5.6. Even in a recent decision of the Hon'ble Apex Court in the case of Mookiah and Anr. v. State rep. by the Inspector of Police, Tamil Nadu, reported in AIR 2013 SC 321 , the Hon'ble Apex Court in para 4 has held as under: "4. Even in a recent decision of the Hon'ble Apex Court in the case of Mookiah and Anr. v. State rep. by the Inspector of Police, Tamil Nadu, reported in AIR 2013 SC 321 , the Hon'ble Apex Court in para 4 has held as under: "4. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges levelled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be re-appreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal. [Vide State of Rajasthan v. Sohan Lal and others, (2004) 5 SCC 573 : ( AIR 2004 SC 4520 : 2004 AIR SCW 4321)]" 5.7. 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. 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 Hon'ble Apex Court in the case of State of Karnataka v. 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." 5.8. Thus, in case the appellate Court agrees with the reasons and the opinion given by the lower court, then the discussion of evidence at length is not necessary. 6. We have examined the matter carefully and gone through the evidence on record. We have appreciated, re-appreciated and re-evaluated the evidence on the touchstone of the latest decisions of the Hon'ble Apex Court. 6.1. We find that the trial Court while considering the evidence on record, has very elaborately discussed the evidence adduced before it. The observations made in para 6, 7 and 8 of the impugned judgment and order are relevant and hence, reproduced hereunder: "6. As appears from the schedule - A annexed to this complaint Exh. 1, the accused are alleged to have charged higher prices in respect of nine drugs described with all details regarding batch numbers, manufactures and packing size etc. in this schedule - A. The batch numbers of the drugs or medicines or formulations supplied by the accused of the municipal employees, are 84059, 8005, 2848, LA 666, BF 4055, 5000, 8009, 81992 and NIL respectively. These bache number differ from the batch numbers shown in the price list mark A, B, C, D, E, F, relied upon by the prosecution to show the price fixed by the Government. The batch numbers of the drugs shown at Sr. These bache number differ from the batch numbers shown in the price list mark A, B, C, D, E, F, relied upon by the prosecution to show the price fixed by the Government. The batch numbers of the drugs shown at Sr. No. 1 to 9 in Schedule - A and the batch number given in the aforesaid price list do not tally with each other. The batch numbers of the product named at item No. 1 in schedule - A do not tally with the batch of the said drugs shown in price list from it. In mark A, no batch number shown so far as the drugs shown at item No. 1 in schedule - A. Similarly, the batch number of sorbitrate tablet which is shown at Sr. No. 5 at Schedule - A is not shown in the price list which is relied on by the prosecution i.e. price list which is relied on by the prosecution i.e. price list mark - C. In price list mark B, C, D, E and F in respect of the product of Sr. No. 2, 3, 4, 6, 7, 8 and 9 shown in Schedule - A respectively, the batch numbers of the aforesaid products are 8001, 8004, LA 649, K 90125, K 90095, LA 421 and 478 respectively. These batch number differ from the batch numbers of the drugs sold by the accused. As admitted by the Drugs Inspector also, the price differs from batch number to batch number. Thus, there is an absolutely no evidence on record to show that the accused charged more price in respect of the drugs of the batch numbers sold by them. 7. The prosecution has also relied on the statement given by the accused No. 2 before the Drugs Inspector at the time when they carried out raid in their medical stores. That statement is at Exh. 29. In that statement, the accused No. 2 confessed that he has charged higher price. The learned advocate appearing for the accused has submitted that the statement was obtained under coercion. He has further submitted that the drugs inspector who have obtained this statement, are the person in authority so far as the accused is concerned and therefore, that statement cannot relied upon for the purpose of coming to the conclusion that the accused sold the Drugs at higher price. 8. He has further submitted that the drugs inspector who have obtained this statement, are the person in authority so far as the accused is concerned and therefore, that statement cannot relied upon for the purpose of coming to the conclusion that the accused sold the Drugs at higher price. 8. Now, the Drugs Inspector Shri Gandhi himself has admitted that Mr. Sahikh and he himself as Drugs Inspector have an authority in law to inspect and visit the medical stores. He has further stated that the medical stores are under his direct control. Under these circumstances, when the accused stated that the statement is obtained from him under threat, it must be believed. Thus, the drugs Inspector being the authority to inspect the medical stores must be held to be the person in authority and in the circumstances the statement cannot be relied on. Further, more confession is not enough to convict the accused as evidence on record show that they are not proved to have sold the medicines or drugs at a higher price." 6.2. In aforesaid view of the matter, we are of the considered opinion that the Court below was completely justified in passing impugned judgment and order and the findings recorded by the trial Court in acquitting the accused of the charge levelled against them are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. We are in complete agreement with the reasonings given and the findings arrived at by the trial Court. No interference is warranted with the judgment and order of the trial Court. 7. In view of the aforesaid discussion, present Criminal Appeal as well as the Criminal Revision Application having found without any substance, fail and are dismissed accordingly. The impugned judgment and order dated 06/09/1993 passed by the learned Additional Sessions Judge, Baroda in ESTP Case No. 4 of 1990 is confirmed. Bail bonds shall stand cancelled. Registry to return the R&P to the trial Court forthwith. Appeal Dismissed.