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2017 DIGILAW 245 (GUJ)

State of Gujarat v. Umedbhai Husanali Virani

2017-02-01

ABDULLAH GULAMAHMED URAIZEE

body2017
JUDGMENT : Abdullah Gulamahmed Uraizee, J. 1. The State has preferred the present appeal under Section 378 of the Code of Criminal Procedure, 1973 ("the Code" for short) to challenge the judgment and order of acquittal dated 23.01.2006 passed by learned Presiding Officer, 11th Fast Track Court, Anand in Criminal Appeal No. 105 of 2004, whereby the judgment and order of conviction dated 25.10.2004 passed by learned Civil Judge (S.D.) and learned Judicial Magistrate First Class (Anand) in Criminal Case No. 2530 of 1987 came to be set aside and the respondents came to be acquitted for the offence punishable under Section 2(I-A)(A), 7(I)(V) & 16(1)(A)(I) of the Prevention of Food Adulteration Act. 2. The facts which are essential to be exposited that the complainant is the Food Inspector. He collected the sample of Groundnut oil (Kailash Brand). The sample was sent to the public analyst. The report of the public analyst revealed that the sample was not made with the standard fixed by the law. Thereafter, permission from the local health authority was obtained to launch criminal proceedings. The investigation was carried out. The charge sheet was submitted. The opponents accused faced trial before the learned Judicial Magistrate First Class. The learned Magistrate passed judgment and order of conviction and sentence to undergo two years rigorous imprisonment with a fine of Rs. 1000/-. The learned Magistrate passed judgment and order of conviction and sentence dated 25.10.2004. It was ordered by the learned Judge that in default of the fine the opponent accused was to undergo seven days simple imprisonment. The learned Judicial Magistrate passed order in Criminal Case No. 2530 of 1987. 3. Being aggrieved by the judgment and order of conviction and sentence dated 25.10.2004 passed in Criminal Case No. 2530 of 1987 the opponents accused preferred Criminal Appeal No. 105 of 2004 under Section 374 of the Criminal Procedure Code. The said appeal came for hearing before the learned Presiding Officer, 11th Fast Tract Court, Anand. The learned Presiding Officer passed judgment and order of acquittal on 23.01.2006 giving benefit of doubt and acquitted the opponents accused from the charge of Prevention of Food Adulteration Act. 4. Being aggrieved by the judgment and order dated 23.01.2006 passed by the learned Presiding Officer, 11th Fast Tract Court, Anand in Criminal Appeal No. 105 of 2004, the appellant prefer this criminal appeal. 5. I have heard Mr. 4. Being aggrieved by the judgment and order dated 23.01.2006 passed by the learned Presiding Officer, 11th Fast Tract Court, Anand in Criminal Appeal No. 105 of 2004, the appellant prefer this criminal appeal. 5. I have heard Mr. K.L. Pandya, learned APP for the appellant-State and Ms. Kruti M. Shah, learned advocate for the respondents. 6. Mr. K.L. Pandya, learned APP vehemently submits that the learned trial Judge has committed an error in upsetting the judgment and order of conviction and acquitting the respondents on the ground that the trial is vitiated on account of non-joinder of manufacturer, and the consent given for prosecution, suffered from non application of mind. It is his further submission that the learned trial Judge had upon appreciation of the oral and documentary evidence and by assigning cogent reasons has recorded a finding that there was no breach of any mandatory provision of the Prevention of Food Adulteration, and consent for prosecution cannot be said to have been suffered from non application of mind. This finding ought not to have been interfered with by the learned lower appellate Court. He, therefore, urges that the appeal may be allowed and the judgment and order of conviction passed by the learned Magistrate may be restored. 7. The scope of acquittal appeal under Section 378 (1) (3) of the code is limited. The Supreme Court in the case of Sadhu Saran Sing v. State of Uttar Pradesh, (2016) 4 SCC 357 , have explained the scope of acquittal appeal in paragraph No. 20 as under : "20. Generally, an appeal against acquittal has always been altogether on a different pedestal from that of an appeal against conviction. In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate Court would interfere with the order of acquittal only when there is perversity of fact and law. However, we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage of justice which can arise by acquitting the accused who is guilty of an offence. A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent. However, we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage of justice which can arise by acquitting the accused who is guilty of an offence. A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent. This Court, while enunciating the principles with regard to the scope of powers of the appellate Court in an appeal against acquittal in Sambasivan v. State of Kerala, (1998) 5 SCC 412 has held: 7. " The principles with regard to the scope of the powers of the appellate Court in an appeal against acquittal, are well settled. The powers of the appellate Court in an appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two views are reasonably possible the appellate Court cannot substitute its view in the place of that of the trial Court. It is only when the approach of the trial Court in acquitting an accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions therefrom that the appellate Court can interfere with the order of acquittal." 8. Ms. Kruti M. Shah, learned advocate for the respondents has supported the impugned judgment of the lower appellate Court. She submits that the consent given by the authority cannot be said to have been given after active application of mind. She further submits that the learned lower appellate Judge has rightly observed. She, therefore, submits that the impugned judgment and order of acquittal does not warrant interference in this appeal. In support of her submission, she has relied on unreported decision of this Court in the case of Shankarlal Mangilal Jain v. State of Gujarat in Criminal Revision Application No. 110 of 1994 dated 18.09.2000 and reported decision in the case of Ganpatbhai T. Prajapati v. Food Inspector and others, (2005) 3 GLH 389 . "The consent as recorded does not evidence active application of mind. Though no reasons are required to be recorded while granting consent under section 20 of the Act, the prosecution is duty bound to satisfy the court that the consent had been given after perusal of all the relevant papers and after proper application of mind. "The consent as recorded does not evidence active application of mind. Though no reasons are required to be recorded while granting consent under section 20 of the Act, the prosecution is duty bound to satisfy the court that the consent had been given after perusal of all the relevant papers and after proper application of mind. Such application of mind can either be manifest in the consent granted or can be proved by oral evidence. In the present case, the Food Inspector has deposed that he had drafted the complaint and had submitted all the papers to the competent authority. The consenting authority had perused all the papers and recorded the consent as aforesaid. I am afraid, this is not sufficient to satisfy the court as regards the proper application of mind. The Food Inspector has not disclosed which were the papers which were placed before the consenting authority, nor the competent authority had been examined by the prosecution. Hence, in my view, the prosecution has failed to prove that the consenting authority had granted consent under section 20 (1) of the Act after scrutinizing all the relevant papers and after proper application of mind." 9. Similar view is taken by this Court in the case of Ganpatbhai T. Prajapati (supra). 10. Thus, the proposition of law is very clear and that the application of mind on the part of the consenting authority has to be active and not mechanical. For active application of mind, it has to be demonstrated before the Court the specific papers having bearing on the active application of mind were placed before the consenting authority. Merely, stating that the relevant papers were placed before the authority would not meet the parameters required for recording a conclusion that the consenting authority had given consent after active application of mind. The moment prosecuting agency by the cogent evidence indicates that the nature of papers which were placed before the appropriate authority for according consent, then in that case, it would not be necessary for the appropriate authority to state that the nature of documents considered while giving consent for prosecution. 11. The moment prosecuting agency by the cogent evidence indicates that the nature of papers which were placed before the appropriate authority for according consent, then in that case, it would not be necessary for the appropriate authority to state that the nature of documents considered while giving consent for prosecution. 11. In the case on hand, also it is not emerging from the consent as to which papers were considered by the consenting authority to record a specification that it is a fit case to file a complaint under the Prevention of Food Adulteration Act against the respondents. The learned appellate Court has in paragraph Nos. 24 and 25 has considered this aspect of non application of mind while granting consent to launch prosecution against the respondents. The learned lower appellate Court has also in paragraph Nos. 24 and 25 considered the submission as regards the non application of mind while giving consent for filing prosecution against the respondents and has recorded a finding of facts on the basis of record that it is not emerging from. 12. I am, therefore, of the opinion that the prosecution has failed to prove beyond reasonable doubt that the consenting authority had given consent for prosecution after due active application of mind as result the mandatory provisions of Section-20 which is mandatory in nature as has been held by catena of decisions is violated. The impugned judgment and order of acquittal, therefore, does not warrant interference in this appeal. 13. For the foregoing reasons, the appeal fails and is hereby dismissed. 14. Record and proceedings is ordered to be remitted back to the Tribunal forthwith.