State of Gujarat vs Mukesh C. Upadhyay

Z.K. Saiyed, J.—The present appeal, u/s 378(1)(3) of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 6.6.2002 passed by the learned Chief Judicial Magistrate, Vadodara in Criminal Case No. 150 of 1997, whereby the accused has been acquitted from the charges leveled against him.

The brief facts of the prosecution case are as under:

2.1 The complainant - Drugs Inspector raided the place of respondent on 23.6.1995 and it was found that the the respondent - accused was keeping the stock allopathic drugs and he was having registration under the Gujarat of Ayurvedic and Unani System. Therefore, the respondent was asked for licence for keeping and selling the allopathic medicines and he was not able to produce any such permit. Therefore, the respondent - accused was not a Medical Practitioner under the Drugs and Cosmetics Act, 1940 and Drugs and Cosmetics Rules, 1945 and therefore, he was not eligible for the concession under Rule 2(e)(e) available to the registered practitioner. Thus, the accused - respondent by storing the allopathic medicines committed breach of Rule 18(c) and therefore, u/s 27 of the Act, he is liable for offence.

2.2 Therefore, Criminal Case No. 150 of 1997 with respect to the aforesaid offence was filed against the respondent before the learned Chief Judicial Magistrate, Vadodara.

2.3 To prove the case against the present accused, the prosecution has also produced documentary evidence and has examined witness.

Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the learned trial Court the appellant has preferred the present appeal.

It was contended by learned APP Mr. Jani that the judgment and order of the trial Court is against the provisions of law the trial Court has not properly considered the evidence led by the complainant and looking to the provisions of law itself it is established that the complainant has proved the whole ingredients of the evidence against the present respondent. Learned APP has also taken this Court through the oral as well as the entire documentary evidence.

4.1 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.

4.2 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.

4.3 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.

4.4 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.

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 before the trial court and also considered the submissions made by learned APP for the appellant. It appears from the record that previously the present respondent had filed Civil Suit against the order of Commissioner of Drugs and stay was obtained by respondent. Therefore, the learned Judge has rightly observed the said stay was in existence at the time of filing the criminal case against the respondent - accused and therefore, prima facie, the complaint was lodged by the complainant is false and frivolous. It appears from the record that the learned Judge has rightly considered the aspect that the accused was a degree holder of Homeopathic and therefore, he had no right to practice as allopathic practitioner and therefore, the complainant has filed criminal case against the respondent on his own belief, which is totally baseless. Therefore, I am in total agreement of the reasons assigned by the learned Magistrate.

Learned APP is not in a position to show any evidence to take a contrary view of 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 the above view of the matter, I am of the considered opinion that the trial court was completely justified in acquitting the respondent of the charges leveled against him.

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 court below and hence find no reasons to interfere with the same. Hence the appeal is hereby dismissed. Bail bond, if any, stands cancelled. Record and proceedings to be sent back to trial Court, forthwith.