State of Gujarat vs Jayesh Kumar Chandulal Sakrani and Others

Z.K. Saiyed, J.—The appellant State of Gujarat, has preferred this Appeal u/s 378(1)(3) of the Code of Criminal Procedure against the Judgment and order dated 31.7.2004 passed by the learned Additional Sessions Judge, (Fast Track Court, Surendranagar, in Criminal Appeal No.105 of 2001, whereby the learned Judge has set aside the Judgment and order dated 7.9.2001 passed by the learned Civil Judge (SD) and Judicial Magistrate, First Class, Surendranagar in Criminal Case No. 296 of 2000 and acquitted the respondents original accused from the charged leveled against them.

The short facts of the prosecution case is that on 12.7.1999 at about 11.00 hours the complainant Food Inspector, alongwith Panch witness, visited the business place of accused and collected sample of three sealed packets of ''Manikchand'' Gutka. After following the necessary procedure, the Food Inspector sent the said sample to the Public Analyst for analysis. The Public Analyst reported that the said sample does not conform the prescribed standard and there is a breach of Rule 32(b) and 62 and declared the said sample as misbranded one. Thereafter, after obtaining necessary sanction the Food Inspector filed complaint against the respondents accused in the Court.

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 has held the respondents accused guilty for the offences charged against them. The learned Magistrate has held the original accused Nos. 1 and 5 guilty of the offences charged against them and imposed fine of Rs. 500 each and also held the respondents original accused Nos. 1, 2 and 4 guilty for the offences charged against them and convicted and sentenced them for three months simple imprisonment and in default of fine and trial Court has order for imprisonment and in default of fine the trial Court has ordered for 15 day''s simple imprisonment.

Against the said judgment the respondent accused had preferred Criminal Appeal No. 15 of 2001 before the Sessions Court, Surendranagar. The said Appeal was heard by the learned Additional Sessions Judge (Fast Track Court), Surendranagar and after hearing the parties, the learned Judge has set aside the judgment and order passed by the Trial Court, judgment and order dated 31.3.2004.

Being aggrieved and dissatisfied with the said judgment and order dated 31.3.22004 passed by the learned Additional Sessions Judge, (Fast Track Court), Surendranagar, in above Criminal Appeal the appellant state of Gujarat, has preferred the present Criminal Appeal.

I have heard learned APP Mr.H.L. Jani, appearing on behalf of the appellant State and learned Advocates appearing on behalf of respondent original accused. I have also gone through the papers and the judgment and order passed by the Court below.

Learned APP for the appellant 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 respondent/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 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, is without appreciating the facts and evidence on record.

I have gone through the Judgment of 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:

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.

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, 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.

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 & Anr. (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. 13. Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh v. Ram Veer Singh & Ors. AIR 2007 SCW 5553 and in Girja Prasad (Dead) by LRs v. State of MP. 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 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 court 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 clearly observed in Para 14 of the judgment that "as per sanction order Ex. 49, it appears that the local Authority granted/accorded sanction to initiate criminal battle against Anil Mahendrabhai Patel, nominee of Manufacturing Firm, Dashrath and he has been arrayed as an accused as such in the complain, (sic) If. But, so far as manufacturing firm, Dhari(sic) Industries Ltd. is concerned, it has not been joined as a manufacturing firm in the complaint itself and instead of Dashrath, Dist. Baroda manufacturing firm situated at Pune (Maharashtra) has been joined/impleaded as an accused in the present case for which no sanction is accorded by the Local health authority, hence accused No.4 Anil M. Patel cannot be held responsible as a nominee of manufacturing firm situated at Pune (Maharashtra)....Hence, to the extent of accused Nos. 4 and 5 sanction appears to be defective one. Hence, it being defective, 1 would term it as non-est against these two accused." Nothing is produced on record of this appeal to rebut the concrete findings of the Sessions Court.

Thus, the appellant could not bring home the charge against the respondent-accused in the present Appeal. The prosecution has miserably failed to prove the case against the appellant-accused. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt.

Learned Advocate 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 of the trial Court and acquitting the respondent/accused of the charges levelled 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 court below 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 31.3.2004 passed by the learned Additional Sessions Judge, Fast Track Court, Surendranagar, in Criminal Appeal No. 15 of 2001 setting aside the judgment and order dated 7.9.2001 passed by the teamed 4th Joint Judicial Magistrate. First Class and Civil Judge (SD), Surendranagar, in Criminal Case No. 396 of 2000 holding the respondents/accused guilty of the charges levelled against them, is hereby confirmed. Bail bonds, if any I shall stand cancelled. R & P may be sent back to the trial Court.