Gujarat High Court
State Of Gujarat vs Ashokkumar Mangilal Shah on 8 July, 2022
Author: A. C. Joshi
Bench: Ashokkumar C. Joshi
R/CR.A/951/2013 JUDGMENT DATED: 08/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 951 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copyNo
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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STATE OF GUJARAT
Versus
ASHOKKUMAR MANGILAL SHAH
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Appearance:
MS JIRGA JHAVERI, APP for the Appellant(s) No. 1
MR DK MODI(1317) for the Opponent(s)/Respondent(s) No. 1
MR MD MODI(1318) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 08/07/2022
ORAL JUDGMENT
1. Heard learned APP Ms. Jirga Jhaveri for the appellant - State and learned advocate Mr. M.D. Modi for the respondent at length.
2. The State has filed this acquittal appeal challenging the Page 1 of 16 Downloaded on : Thu Jul 14 21:18:29 IST 2022 R/CR.A/951/2013 JUDGMENT DATED: 08/07/2022 judgment and order dated 10.10.2012 passed by the learned Judicial Magistrate, First Class, Olpad, Surat in Criminal Case No. 763 of 1997 for the offences punishable under Sections 2(ia) (m), 2(ix) (d), 44(aaa), 7(1), 7(2), 7(5) and Section 16 of the Prevention of Food Adulteration Act, 1954.
3. The factual matrix of the prosecution case in nutshell is that the complainant - Surendrakumar Bansidhar Agrawal was Food Inspector at Surat and the present accused was owner of the Mandot Grocery Store. On 03.03.1997, at about 17.00 hours, at Mandot Grocery Store situated at Kim, Tahsil - Olpad, the complainant visited the shop of present accused along with one Panchwitness namely Shanti Hiralal, at that time the present accused was present in the shop and the complainant gave his identity as a Food Inspector. Thereafter, the complainant took the sample of "Black Pepper" (Kalamirchi) weighing 600 Gms. in the presence of Panchwitness and after following necessary procedure, sealed the same, sent it to the Public analyst, Bhuj for analysis. In the analysis report, it was opined that the same was adultered and misbranded. Hence, the complainant obtained necessary sanction from Local Health Authority, Surat as per law to lodge complaint against the said accused and lodged the complaint against him before the Learned Judicial Magistrate First Class, Olpad, Dist: Surat. Thereafter, the complaint was registered against the accused for the offence punishable under Sections 2(ia) (m), 2(ix) (d), 44 (aaa), 7 (1), 7(2), 7 (5) and Section 16 of the Prevention of Food Adulteration Act, 1954.
4. Learned APP Ms. Jirga Jhaveri for the State has taken this Court at different grounds mainly on the aspect that the complainant availed the necessary permission from the higher Page 2 of 16 Downloaded on : Thu Jul 14 21:18:29 IST 2022 R/CR.A/951/2013 JUDGMENT DATED: 08/07/2022 authority and therefore, the learned Magistrate was required to appreciate the evidence on that grounds. Further, it is stated that the learned Magistrate ought to have appreciated during the investigation. The complainant has performed his duty and followed the necessary procedure and it is also contended that the accused has contraband provisions of Prevention Adulteration Act and committed offence. Learned APP also stated that the learned Magistrate has not observed the proper appreciation of evidence. Learned APP has taken this Court at different depositions and prosecution witnesses and urged that prosecution has successfully proved his case beyond reasonable doubt upon the accused person, still the learned Magistrate has committed error in appreciation of evidence including committed error in law so far as the mandatory provision is concerned, which is already followed by the prosecution and therefore she submitted that the appeal may be allowed and set aside the impugned judgment and order passed by the learned Magistrate.
5. Per contra, learned advocate Mr. M.D. Modi for the respondent has heavily argued that in the present case that there are mainly two aspects which are required to be considered by this Court for dismissing the appeal. First one is that there are some procedures which are laid down by the Director General of Health Services, wherein particular methodology is required to be performed by the public analysis but the same is not carried out and therefore, the learned Magistrate has rightly awarded the acquittal of the accused person. Learned advocate for the respondent has also taken this Court at different depositions of the prosecution witnesses and mandatory procedure as well as provisions under Rule 40 Page 3 of 16 Downloaded on : Thu Jul 14 21:18:29 IST 2022 R/CR.A/951/2013 JUDGMENT DATED: 08/07/2022 is also not observed, so long as the cleanness of bottles and Jars is concerned. Therefore, the learned Magistrate has rightly given the benefit of doubt to the accused person and therefore, there is no need of interference by this Court and the appeal may be dismissed.
Learned advocate for the respondent has also placed reliance upon the judgments of this Court in the cases (i) Vinodbhai Omprakash Gupta Vs. State of Gujarat and others reported in 2016 (1) FAC 315, (ii) Ramesh G. Bendbar Vs. Owner Sehumal Virvani reported in 2007(2)FAC 116 (iii) State of Gujarat Vs. Babu Lavji Jalia recorded on Criminal Appeal No. 09 of 1991.
6. Having heard the arguments advanced by learned advocates for the respective parties and considering the materials available on record, this Court would like to refer as under:
6.1 Before adverting to the facts of the case, it would be worthwhile to refer to the scope of interference in acquittal appeals. It is well settled by catena of decisions that an appellate Court has full power to review, re-appreciate and consider the evidence upon which the order of acquittal is founded. However, the Appellate Court must bear in mind that in case of acquittal, there is prejudice 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 Page 4 of 16 Downloaded on : Thu Jul 14 21:18:29 IST 2022 R/CR.A/951/2013 JUDGMENT DATED: 08/07/2022 is further reaffirmed and strengthened by the trial Court.
6.2 Further, 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.
Further, 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 arrive at would not be arrived at by any reasonable person, and therefore, the decision is to be characterized as perverse.
6.3 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. That the duty is cast upon the appellate Court, in such circumstances, to re- appreciate the evidence to arrive to just decision on the basis of material placed on record to find out whether the accused is connected with the commission of the crime with which he is charged.
6.4 In Mallikarjun Kodagali (Dead) represented through Legal Representatives v. State of Karnataka and Others, (2019) 2 SCC 752, the Apex Court has observed that, "The presumption of innocence which is attached to every accused gets fortified and strengthened when the said Page 5 of 16 Downloaded on : Thu Jul 14 21:18:29 IST 2022 R/CR.A/951/2013 JUDGMENT DATED: 08/07/2022 accused is acquitted by the trial Court. Probably, for this reason, the law makers felt that when the appeal is to be filed in the High Court it should not be filed as a matter of course or as matter of right but leave of the High Court must be obtained before the appeal is entertained. This would not only prevent the High Court from being flooded with appeals but more importantly would ensure that innocent persons who have already faced the tribulation of a long drawn out criminal trial are not again unnecessarily dragged to the High Court".
6.5 Yet in another decision in Chaman Lal v. The State of Himachal Pradesh, rendered in Criminal Appeal No. 1229 of 2017 on 03.12.2020, 2020 SCC OnLine SC 988 the Apex Court has observed as under:
"9.1 In the case of Babu v. State of Kerala, (2010) 9 SCC
189), this Court had reiterated the principles to be followed in an appeal against acquittal under Section 378 Cr.P.C. In paragraphs 12 to 19, it is observed and held as under:
12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P (1975) 3 SCC 219, Shambhoo Missir v. State of Bihar (1990) 4 SCC 17, Shailendra Pratap v. State of U.P (2003) 1 SCC 761, Narendra Singh v. State of M.P (2004) 10 SCC 699, Budh Singh v. State of U.P (2006) 9 SCC 731, State of U.P. v. Ram Veer Singh (2007) 13 SCC 102, S. Rama Krishna v. S. Rami Reddy (2008) Page 6 of 16 Downloaded on : Thu Jul 14 21:18:29 IST 2022 R/CR.A/951/2013 JUDGMENT DATED: 08/07/2022 5 SCC 535, Arulvelu v. State (2009) 10 SCC 206, Perla Somasekhara Reddy v. State of A.P (2009) 16 SCC 98 and Ram Singh v. State of H.P (2010) 2 SCC 445)
13. In Sheo Swarup v. King Emperor AIR 1934 PC 227, the Privy Council observed as under: (IA p. 404) "... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."
14. The aforesaid principle of law has consistently been followed by this Court. (See Tulsiram Kanu v. State AIR 1954 SC 1, Balbir Singh v. State of Punjab AIR 1957 SC 216, M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200, Khedu Mohton v. State of Bihar (1970) 2 SCC 450, Sambasivan v.
State of Kerala (1998) 5 SCC 412, Bhagwan Singh v. State of M.P(2002) 4 SCC 85 and State of Goa v. Sanjay Thakran (2007) 3 SCC 755)
15. In Chandrappa v. State of Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under: (SCC p. 432, para 42) "(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 curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise 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.
Page 7 of 16 Downloaded on : Thu Jul 14 21:18:29 IST 2022R/CR.A/951/2013 JUDGMENT DATED: 08/07/2022 (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."
16. In Ghurey Lal v. State of U.P (2008) 10 SCC 450, this Court reiterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court's acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses.
17. In State of Rajasthan v. Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that: (SCC p. 374, para 20) "20. ... an order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused."
18. In State of U.P. v. Banne (2009) 4 SCC 271, this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances include: (SCC p. 286, para 28) "(i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position;
(ii) The High Court's conclusions are contrary to evidence and documents on record;
(iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;
Page 8 of 16 Downloaded on : Thu Jul 14 21:18:29 IST 2022R/CR.A/951/2013 JUDGMENT DATED: 08/07/2022
(iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;
(v) This Court must always give proper weight and consideration to the findings of the High Court;
(vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal." A similar view has been reiterated by this Court in Dhanapal v. State (2009) 10 SCC 401.
19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."
9.2 When the findings of fact recorded by a court can be held to be perverse has been dealt with and considered in paragraph 20 of the aforesaid decision, which reads as under:
"20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn (1984) 4 SCC 635, Excise and Taxation Officer-cum- Assessing Authority v. Gopi Nath & Sons 1992 Supp (2) SCC 312, Triveni Rubber & Plastics v. CCE 1994 Supp. (3) SCC 665, Gaya Din v. Hanuman Prasad (2001) 1 SCC 501, Aruvelu v. State (2009) 10 SCC 206 and Gamini Bala Koteswara Rao v. State of A.P (2009) 10 SCC 636)." (emphasis supplied) 9.3 It is further observed, after following the decision of this Court in the case of Kuldeep Singh v. Commissioner of Police (1999) 2 SCC 10, that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the Page 9 of 16 Downloaded on : Thu Jul 14 21:18:29 IST 2022 R/CR.A/951/2013 JUDGMENT DATED: 08/07/2022 conclusions would not be treated as perverse and the findings would not be interfered with.
9.4 In the recent decision of Vijay Mohan Singh v. State of Karnataka, (2019) 5 SCC 436, this Court again had an occasion to consider the scope of Section 378 Cr.P.C. and the interference by the High Court in an appeal against acquittal. This Court considered catena of decisions of this Court right from 1952 onwards. In paragraph 31, it is observed and held as under:
"31. An identical question came to be considered before this Court in Umedbhai Jadavbhai (1978) 1 SCC 228. In the case before this Court, the High Court interfered with the order of acquittal passed by the learned trial court on reappreciation of the entire evidence on record. However, the High Court, while reversing the acquittal, did not consider the reasons given by the learned trial court while acquitting the accused. Confirming the judgment of the High Court, this Court observed and held in para 10 as under: (SCC p. 233)
"10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to reappreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence. This rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case."
31.1. In Sambasivan v. State of Kerala (1998) 5 SCC 412, the High Court reversed the order of acquittal passed by the learned trial court and held the accused guilty on re- appreciation of the entire evidence on record, however, the High Court did not record its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. Confirming the order passed by the High Court convicting the accused on reversal of the acquittal passed by the learned trial court, after being satisfied that the order of acquittal passed by the learned trial court was perverse and suffered from infirmities, this Court declined to interfere with the order of conviction passed by the High Court.
While confirming the order of conviction passed by the High Court, this Court observed in para 8 as under: (SCC p. 416) Page 10 of 16 Downloaded on : Thu Jul 14 21:18:29 IST 2022 R/CR.A/951/2013 JUDGMENT DATED: 08/07/2022 "8. We have perused the judgment under appeal to ascertain whether the High Court has conformed to the aforementioned principles. We find that the High Court has not strictly proceeded in the manner laid down by this Court in Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC 225 viz. first recording its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable, which alone will justify interference in an order of acquittal though the High Court has rendered a well- considered judgment duly meeting all the contentions raised before it. But then will this non-compliance per se justify setting aside the judgment under appeal? We think, not. In our view, in such a case, the approach of the court which is considering the validity of the judgment of an appellate court which has reversed the order of acquittal passed by the trial court, should be to satisfy itself if the approach of the trial court in dealing with the evidence was patently illegal or conclusions arrived at by it are demonstrably unsustainable and whether the judgment of the appellate court is free from those infirmities; if so to hold that the trial court judgment warranted interference. In such a case, there is obviously no reason why the appellate court's judgment should be disturbed. But if on the other hand the court comes to the conclusion that the judgment of the trial court does not suffer from any infirmity, it cannot but be held that the interference by the appellate court in the order of acquittal was not justified; then in such a case the judgment of the appellate court has to be set aside as of the two reasonable views, the one in support of the acquittal alone has to stand. Having regard to the above discussion, we shall proceed to examine the judgment of the trial court in this case."
31.2. In K. Ramakrishnan Unnithan v. State of Kerala (1999) 3 SCC 309, after observing that though there is some substance in the grievance of the learned counsel appearing on behalf of the accused that the High Court has not adverted to all the reasons given by the trial Judge for according an order of acquittal, this Court refused to set aside the order of conviction passed by the High Court after having found that the approach of the Sessions Judge in recording the order of acquittal was not proper and the conclusion arrived at by the learned Sessions Judge on several aspects was unsustainable. This Court further observed that as the Sessions Judge was Page 11 of 16 Downloaded on : Thu Jul 14 21:18:29 IST 2022 R/CR.A/951/2013 JUDGMENT DATED: 08/07/2022 not justified in discarding the relevant/material evidence while acquitting the accused, the High Court, therefore, was fully entitled to reappreciate the evidence and record its own conclusion. This Court scrutinised the evidence of the eyewitnesses and opined that reasons adduced by the trial court for discarding the testimony of the eyewitnesses were not at all sound. This Court also observed that as the evaluation of the evidence made by the trial court was manifestly erroneous and therefore it was the duty of the High Court to interfere with an order of acquittal passed by the learned Sessions Judge.
31.3. In Atley v. State of U.P. AIR 1955 SC 807, in para 5, this Court observed and held as under: (AIR pp. 80910) "5. It has been argued by the learned counsel for the appellant that the judgment of the trial court being one of acquittal, the High Court should not have set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417 Cr.P.C came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order.
It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well-established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence.
It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal.
If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Page 12 of 16 Downloaded on : Thu Jul 14 21:18:29 IST 2022 R/CR.A/951/2013 JUDGMENT DATED: 08/07/2022 Singh v. State AIR 1952 SC 52; Wilayat Khan v. State of U.P AIR 1953 SC 122) In our opinion, there is no substance in the contention raised on behalf of the appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions.
31.4. In K. Gopal Reddy v. State of A.P. (1979) 1 SCC 355, this Court has observed that where the trial court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule."
(emphasis supplied)."
7. This Court has gone through the elements of complaint as well as the charges framed against the accused person including requisite sanction and also gone through the depositions adduced by the prosecution in support of his case to bring home the accused for the charges levelled against him.
8. The prosecution has testified Surendrakumar Bansidhar Agrawal (Exh.15), who was Food Inspector on 20.06.1996, he has tried to deposed as per the elements of the complaint including taking of samples, Panchnama and etc. and also produced different documents (Exts. 22, 24, 25, 27, 28 & 29), in his cross examination, he had categorically admitted that he had not mentioned so far as cleanness of the bottles is concerned.
9. Learned advocate for the respondent has placed reliance on the judgment of this Court in the case of Ramesh G. Bendar (supra), it was held that so far as the bottles were not cleaned Page 13 of 16 Downloaded on : Thu Jul 14 21:18:29 IST 2022 R/CR.A/951/2013 JUDGMENT DATED: 08/07/2022 in the presence of the Food Inspector. The prosecution had not examined the person who actually cleaned the bottles, polythene not cleaned. Here the bottles were not cleaned and the same has came on record while testifying by the defence in the cross examination and therefore this Court is of the view that the learned Magistrate has rightly arrived at the benefit of doubt and acquitted the accused person.
10. So far as the methodology is concerned, this Court held in the case of Shri Anilkumar Natvarlal Thakkar Vs. State of Gujarat and another recorded on the Criminal Revision Application No. 528 of 2005, one of the arguments of the learned Additional Public Prosecutor was to the extent that few questions were not asked so far as the methodology is concerned, this Court has held that so far the point of legal is concerned, reliance was placed on the cases (i) State of Gujarat Vs. Keshavlal Kalidas Patel and another reported in 1981 Cri.L.J. 551 (ii) State of Orissa Vs. Rabindra Sahu reported in 2006 (1) FAC and (iii) Vallabhbhai Popatbhai Vs State of Gujarat and another reported in 2005 (2) FAC 182, would contend that in absence of the facts being in dispute and the aforesaid point being a question of law can be raised for the first time at any stage. Having considered the decisions, this Court has held that legal position that the point of law can be raised any stage of the proceedings, has been settled and therefore the submission of the learned APP was not believed by the Co-ordinate Bench. Here also the learned advocate for the respondent has placed reliance on the judgment of this Court so far as the methodology as prescribed by the Director General of Health Services is concerned, for particular methodology is not observed and also there is no scope for Page 14 of 16 Downloaded on : Thu Jul 14 21:18:29 IST 2022 R/CR.A/951/2013 JUDGMENT DATED: 08/07/2022 interference in the judgment and order passed by the learned Magistrate.
11. Learned advocate for the respondent has also placed reliance upon the judgment of this Court in the case of Vinodbhai Omprakash Gupta (supra), it was held that methodology adopted by the public analyst or the third party from whom the public analyst obtained report, nor the protocols of the third party on the basis of which the aforesaid conclusion can be reached were placed before the Court and remained a serious doubt as to the contents of the food articles and in absence of complete report constituting an incriminating circumstances against the accused, the case cannot be said to have been established beyond reasonable doubt and ultimately the Court has held that the impugned judgment and order passed by the learned Magistrate was set aside and acquittal was awarded. Here also as discussed earlier, the methodology is not observed so far as this Court has gone through the judgment and order passed by the learned Magistrate, wherein all such aspects are narrated meticulously in arriving the acquittal of the accused person for the charges levelled against accused person. Therefore, there is no requirement to interfere with the same. Further, it is to be noted that neither there is any perversity in the order, nor any illegality nor capricious nor any error of law. Upon such premises there is no scope for interference by this Court.
12. Hence, in-fleri, prosecution failed to prove case upon the accused.
13. In view of the aforesaid discussion and observations, this Court is of the opinion that the judgment and order dated Page 15 of 16 Downloaded on : Thu Jul 14 21:18:29 IST 2022 R/CR.A/951/2013 JUDGMENT DATED: 08/07/2022 10.10.2012 passed by the learned Judicial Magistrate, First Class, Olpad, Surat in Criminal Case No. 763 of 1997 is just and proper and there is no need of interference by this Court. Accordingly, this appeal stands dismissed and the judgment and order dated 10.10.2012 passed by the learned Judicial Magistrate, First Class, Olpad, Surat in Criminal Case No. 763 of 1997 is confirmed. Bail bond stands cancelled.
14. Record and Proceedings be sent back to the trial Court concerned.
(A. C. JOSHI,J) SALIM/65 Page 16 of 16 Downloaded on : Thu Jul 14 21:18:29 IST 2022