J.M. Bhatt vs Pragji Amarsinh Jadeja and Others

Z.K. Saiyed, J.—The present appeal, u/s 378 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 11.4.1988 passed by learned Chief Judicial Magistrate, Kutch-Bhuj in Criminal Case No. 2116 of 1987 whereby the respondents-accused persons were acquitted of the charges levelled against them.

The brief facts of the prosecution case are as under:

2.1 The appellant states that on information the Police Inspector, Mandvi on 14.8.1986 searched the wadi of respondent No. 4 i.e. accused No. 5 hereinafter all the respondents except No. 6 will be referred to as accused. At about 8.00 p.m. the police raided the said wadi as the information regarding English liquor being kept in the wadi was received by the police. At the time of raid the police found 40 lakhs of silver and 34 packets containing foreign fabrics, telephone and the truck bearing No. GTY 8157 belonging to accused No. 6. The police seized the said goods and also arrested one Kiritsinh Janaksinh Jadeja accused No. 7 and one Adav Haji Yusuf Vazir accused No. 4. On 15.8.1986 the police handed over the said goods with the truck and tractor which were seized by the police under panchnama to the Customs Superintendent, Mandvi. Thereafter during the investigation it was found that the said goods were of the ownership of accused Nos. 1 and 3. The truck was of the ownership of accused No. 6 and the tractor and trailer were of the ownership of accused Nos. 5 and 7. The accused No. 4 and accused No. 7 were found present with the goods at the time of raid by the police. The wadi from where the said goods were found is of the ownership of accused No. 5. Therefore, a complaint with respect to the aforesaid offence was filed against the respondents in the Court of learned Chief Judicial Magistrate, District Kachchh at Bhuj. Thereafter the trial court framed the charge against the accused persons and necessary evidence was led before the trial court. After hearing the parties, the trial court by judgment and order dated 11.4.1988 convicted accused No. 4 and 7 for the offence punishable u/s 135 of the Customs Act and imposed sentence of one year imprisonment and a fine of Rs. 5,000/- and, if the fine is not paid then to undergo six months imprisonment. The rest of the accused have been acquitted by the trial court.

2.2 Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the learned Chief Judicial Magistrate, Kachchh at Bhuj, the appellant has preferred the present appeal.

To prove the case the prosecution has examined 31 witnesses and also produced documentary evidence.

Heard Ms. Vasavdatta Bhatt, learned advocate for the appellant. Ms. Bhatt, learned advocate has vehemently argued that the learned Judge has not followed the provisions of Customs Act. She has also read the provisions of Section 108 of the Customs Act and contended that the statement which was recorded by the prosecution, no such law of statements are admissible. She has also contended that the learned Judge again discard the statement made by accused during the interrogation. She has also contended that the judgment and order of the learned Judge is against the provisions of law and the same requires to be set aside.

Learned Advocates appearing for the respondents submitted that the prosecution has failed to establish the case against the respondents accused. It is submitted that there is no evidence worth the name to show that the respondents accused had committed the alleged offence levelled against them. It is submitted that the prosecution has failed to establish the case against the accused and the trial court has rightly acquitted the respondents accused of the charges levelled against them.

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 and Another, 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:

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.

6.1 Further, in the case of Chandrappa and Others Vs. State of Karnataka, the Apex Court has laid down the following principles:

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.

6.2 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.

6.3 Even in a recent decision of the Apex Court in the case of State of Goa v. Sanjay Thakran and 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:

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.

6.4 Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh v. Ram Veer Singh and Ors. reported in AIR 2007 SCW 5553 and in Girja Prasad (Dead) by LRs v. state of MP reported in AIR 2007 SCW 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled.

6.5 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 Alias Vemareddy and Another, wherein it is held as under:

This Court has observed in Girja Nandini Devi and Others Vs. Bijendra Narain Choudhury, 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.

6.6 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.

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 Advocate for the appellant. I have also considered the provisions of Section 108 of the Customs Act. From the perusal of the oral evidence as well as documentary evidence, the learned Judge has observed that the statements which were recorded u/s 108 of the Customs Act cannot be considered. 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. I am in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the court below and hence I find no reasons to interfere with the same. Hence the appeal is hereby dismissed. Bail bond, if any, shall stand cancelled.