State of Gujarat vs Durlabhjibhai Mithabhai and Sons 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 05th March 1993 passed by the learned Second Joint Judicial Judge (S.D.) and Judicial Magistrate First Class, Amreli, in Criminal Case No. 1980 of 1990 for the offences punishable under the Prevention of Food Adulteration Act, 1954, whereby the learned Magistrate has acquitted the respondents-accused of the charges levelled against them.

The short facts of the prosecution case is that on 04th February 1989 the complainant-Food Inspector had visited the respondent No. 1 shop, wherein respondent No. 2 was doing business as nominee of respondent No. 1. The appellant purchased 450 gms. of Turmeric Powder from the respondent No. 2 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 found that the said sample was adulterated and not upto the standard prescribed. Therefore, after following the due procedure, complaint was filed against the respondent Nos. 1 to 6-accused in the Court of learned Second Joint Judicial Judge (S.D.) and Judicial Magistrate First Class, Amreli u/s 16 for the violation of Section 7 of the Prevention of Food Adulteration Act.

Thereafter the trial was conducted before the learned Magistrate. To prove the case of the prosecution, prosecution has produced oral as well as documentary evidence. After considering the oral as well as documentary evidence, the learned Magistrate has acquitted the respondent Nos. 1 to 6-accused from the charges alleged against them by the Judgment and Order of acquittal dated 05th March 1993.

Being aggrieved and dissatisfied with the said Judgment and Order of acquittal dated 05th March 1993 passed by the learned Second Joint Judicial Judge (S.D.) and Judicial Magistrate First Class, Amreli, in Criminal Case No. 1980 of 1990, the appellant-State of Gujarat, has preferred the above mentioned Criminal Appeal.

I have heard Mr. Devang Vyas, learned Counsel appearing on behalf of the appellant. I have also gone through the papers and the Judgment and Order passed by the learned Magistrate.

Mr. Devang Vyas has contended that the Judgment and Order of the learned Magistrate is not proper, legal and it is erroneous. He has also argued that the learned Magistrate has not considered the evidence of the witnesses. He has argued that the learned Magistrate has not considered the fact that the Food Inspector has followed the proper procedure while collecting the sample, etc. and are just and proper. The sample was seized and sealed properly. Yet, the learned Magistrate has not considered the evidence of prosecution. He, therefore, contended that the order of acquittal passed by the learned Magistrate is without appreciating the facts and evidence on record and is required to be quashed and set aside by this Hon''ble Court.

It is 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 Appellate Court is in agreement with the reasons assigned by the trial Court acquitting the accused. In the instant case, this Court is in full agreement with the reasons given and findings recorded by the trial Court while acquitting the respondents-accused and adopting the said reasons and for the reasons aforesaid, in my view, the impugned judgment is just, legal and proper and requires no interference by this Court. Hence, this appeal requires to be dismissed.

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 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.

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 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, 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.

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 order of acquittal passed by the learned Magistrate. I have also perused the oral as well as documentary evidence led before the trial Court and also considered the submissions made by learned advocates for the parties.

The trial Court has, after appreciating the oral as well as documentary evidence, found that respondent No. 2 is the nominee of respondent No. 1-Shop and respondent No. 4 is the nominee of respondent No. 3-supplier. The learned Judge has also observed that the respondent No. 6 is the nominee of respondent No. 5-Manufacturer. The learned Judge has also observed that as per Section 19(2)(a)(b), sample collected from respondent No. 1 is in sealed packet and the condition of the sample was as it is purchased from the manufacturer. This fact is also come on record in the cross-examination of Food Inspector. Thus, there is no fault on the part of the present respondents. The Trial Court 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 charges against the present respondents-accused in the present appeal. The prosecution has miserably failed to prove the case against the present respondents-accused. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt.

Mr. Vyas, learned Additional Public Prosecutor, 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.

In above view of the matter, I am of the considered opinion that the trial Court was completely justified in acquitting the present respondents-accused 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.

I am, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the trial Court and hence find no reasons to interfere with the same. Hence the appeal is hereby dismissed. Record and Proceedings to be sent back to the trial Court, forthwith. Bail bonds, if any, shall stands cancelled.