State of Gujarat vs Bharatbhai Fuljibhai P. and Others

Z.K. Saiyed, J.—The appellant has preferred this Appeal u/s 378 of the Code of Criminal Procedure, 1973 against the Judgment and Order of acquittal dated 27th February 2004 passed by the learned Additional Sessions Judge, Dhrangadhra, in Criminal Appeal No. 07 of 2002 for the offences punishable under the Prevention of Food Adulteration Act, 1954, whereby the learned Sessions Judge has set aside the judgment and order 11th September 2002 passed by the learned Judicial Magistrate First Class, Halvad, in Criminal Case No. 447 of 1996 and acquitted the respondents original accused from the charges levelled against them.

The short facts of the prosecution case is that on 09th May 1996 the Food Inspector visited the shop of respondent Nos. 1 and 2. The Food Inspector purchased iodised Salt (Maruti Brand (Packed)) manufactured by the respondent No. 3 after paying consideration. It is also the case of the prosecution that after following due procedure of sealing, the sample was sent to the Public Analyst for analysis. On examination, the Public Analyst declared the said sample as misbranded. Therefore, after following the due procedure, complaint came to be filed against the respondents-accused in the Court of learned Judicial Magistrate First Class, Halvad for the offences under Sections 2(1)(a)(M) and 2(9)(k), 7(1)(4) and 16 of the Prevention of Food Adulteration Act, 1954.

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 by his judgment and order dated 11th September 2002 held the respondents accused guilty of the offences levelled against them and ordered to undergo imprisonment for one year and fine of Rs. 2,500/- i/d to undergo imprisonment for further three months.

Against the said judgment and order dated 11th September 2002, the respondents accused had preferred Criminal Appeal No. 07 of 2002 before the Sessions Court. The said Appeal was heard by the learned Additional Sessions Judge, Dhrangadhra. After hearing the parties, the learned Judge by his order dated 27th February 2004 set aside the judgment and order dated 11th September 2002 passed by the learned Judicial Magistrate First Class, Halvad, in Criminal Case No. 447 of 1996 and acquitted the respondents-accused from the charges levelled against them.

Being aggrieved by and dissatisfied with the said judgment and order dated 27th February 2004 passed by the learned Additional Sessions Judge, Dhrangadhra, the appellant State of Gujarat, has preferred the present Criminal Appeal.

I have heard Ms. Mini Nair, learned Additional Public Prosecutor, appearing on behalf of the appellant State. I have also gone through the papers and the judgment and order passed by the Courts below.

Ms. Nair 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 trial Court has rightly held the respondents accused guilty for the offences alleged against them and, therefore, the Sessions Court, in Appeal, should not have interfered with the said findings of the trial Court. He has contended that witnesses have supported the case of the prosecution and the learned Sessions Judge has committed grave error in disbelieving and discarding the evidence of witnesses. He, therefore, contended that the judgment and order passed by the learned Additional Sessions Judge, setting aside the judgment of the trial Court by acquitting the respondents-accused from the charges levelled against them, is without appreciating the facts and evidence on record.

I have gone through the judgment and order passed by the trial Court as well as of the Sessions Court. I have also perused the reasons assigned by both the Courts.

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.

Further, in the case of Chandrappa and Others Vs. State of Karnataka, the Apex Court 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, re-appreciate 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.

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 court below.

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, more particularly, Para - 16 of the said decision.

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.

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 Vs. Hemareddy Alias Vemareddy and Another,

Thus, in case the appellate court agrees with the reasons and the opinion given by the lower court, then the detailed discussion of evidence is not necessary.

I have gone through the judgment and order passed by the trial court as well as of the Sessions Court. I have also perused the oral as well as documentary evidence led before the courts below and also considered the submissions made by learned advocate for the appellant.

The Sessions court has, after appreciating the oral as well as documentary evidence, has found that the prosecution has failed to follow the mandatory provision of Sections 11, 13(2a) and 16 of the Act as well as Rules 4, 12 and 18 of the Rules. It is also observed by the learned Sessions Judge that the learned JMFC without considering this aspect, has passed the order of conviction, which is not proper. The learned Sessions Judge has also observed that there are serious lacuna 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.

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 respondents accused. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt.

Ms. Mini Nair, learned Additional Public Prosecutor for the appellant, is not in a position to show any evidence to take a contrary view in the matter or that the approach of the Sessions 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.

In above view of the matter, I am of the considered opinion that the Sessions Court was completely justified in setting aside the judgment and order of conviction passed by the trial Court and acquitting the respondents accused of the charges leveled against them. I find that the findings recorded by the Sessions Court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it.

I am, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the Sessions Court and hence find no reasons to interfere with the same. Hence the appeal is hereby dismissed.

In view of above, the Appeal is dismissed. The judgment and order dated 27th February 2004 passed by the learned Additional Sessions Judge, Dhrangadhra, in Criminal Appeal No. 07 of 2002 acquitting the respondents-accused of the charges levelled against them, by setting aside the judgment and order dated 11th September 2002 passed by the learned Judicial Magistrate First Class, Halvad, in Criminal Case No. 447 of 1996, is hereby confirmed. Bail bond, if any, shall stands cancelled. Record & Proceedings to be sent back to the trial Court, forthwith.