Gujarat High Court
State Of Gujarat Thro'Y M Soni Assistant ... vs Chandrakant Gordhandas Tehlania on 9 February, 2022
Author: Rajendra M. Sareen
Bench: Rajendra M. Sareen
R/CR.A/814/2009 CAV JUDGMENT DATED: 09/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 814 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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STATE OF GUJARAT THRO'Y M SONI ASSISTANT COMMISSIONER
Versus
CHANDRAKANT GORDHANDAS TEHLANIA
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Appearance:
MR RC KODEKAR APP for the Appellant(s) No. 1
MR KD SHROFF(1149) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
Date : 09/02/2022
CAV JUDGMENT
1. This Appeal is filed by the appellant - State of Gujarat under Section 378(1)(3) of the Criminal Procedure Code, 1973 against the judgment and order dated 18.12.2008 passed by the learned 2 nd Additional Civil Judge and Judicial Magistrate, First Class, Nadiad in Food Case No.8 of 2003 acquitting the respondent - original accused from the offence punishable under section 2(1-a), (a), and (j)(m), Page 1 of 12 Downloaded on : Wed Feb 09 21:11:13 IST 2022 R/CR.A/814/2009 CAV JUDGMENT DATED: 09/02/2022 of the Prevention of Food Adulteration Act, 1954 and there by for breach of offences under section 7(1), 7(5) read with Rule 5, punishable under section 16(1a)(1) of the Prevention of Food Adulteration Act, 1954.
2. The case of the prosecution is that the present respondent accused was selling chilly powder, turmeric powder and others and on 04/04/2003 the complainant- Food Inspector alongwith helper in the presence of the Panch Witness visited the shop of the accused and upon making inquiry, the respondent was the owner and chili powder duly grind was lying there in a bag. The complainant orally informed the accused that he wanted to analyze this before the Public Analyst and therefore to purchase the same and issue Notice in the prescribed Form No.6 as per Rule 12. Thereafter, the complainant had purchased 500 Grams of chill powder and paid the amount for that. The complainant has obtained the signature of the accused in a receipt regarding receiving of amount Thereafter, the said sample of chill powder was stored in three airtight, cleaned and smell-less bottles and sealed after following due procedure of law in the presence of the Panch Witness The complainant also obtained signatures of panchasa in the panchnama, he drew at the time of taking sample. Thereafter, he sent the samples to the Public Analysi, Bhuj for analysis. The Public Analyst after analyzing the sample opined as under:
Page 2 of 12 Downloaded on : Wed Feb 09 21:11:13 IST 2022R/CR.A/814/2009 CAV JUDGMENT DATED: 09/02/2022 "The sample of chili powder is adulterated as it does not comply with the standards and provisions of PFA Act, 1954, as the total ash was more and nonvolatile ether extract was less and presence of rice starch was found."
After the report of the Public Analyst, the complainant obtained the permission of Local Health Authority and filed the complaint against the present accused in the Court of learned 2 Additional Civil Judge and JMEC, Nadiad of Food Case No 8 of 2003. The learned 2 Additional Civil Judge JMFC, Nadiad vide judgment and order dated 18.12.2008 acquitted the respondent accused person from the offences 2.1. Being aggrieved by and dissatisfied with the aforesaid judgement and order of acquittal, present appeal has been filed by the appellant - State.
3. Learned APP Mr.R.C. Kodekar for the appellant State has vehemently argued that the learned Magistrate has committed a grave error in not believing the deposition of the witnesses examined by the prosecution and evidence adduced by the prosecution. He has further argued that the learned Magistrate has erred in acquitting the respondents -
accused from the charges levelled against him. That the Page 3 of 12 Downloaded on : Wed Feb 09 21:11:13 IST 2022 R/CR.A/814/2009 CAV JUDGMENT DATED: 09/02/2022 prosecution has proved that the respondent has committed offence alleged against him. He has further argued that the learned Magistrate erred in holding that the prosecution has failed to establish its case beyond reasonable doubt. That the trial court has erred in not appreciating the evidence on record in its true perspective. That the trial court has erred in not appreciating the report of the Public Analyst and evidence of the complainant which clearly connects the accused with commission of the offence. That the trial court has erred in not appreciating the fact that the sample sent for analysis was found adulterated. That the trial court erred in holding that the sanction has been given without application of mind and without appreciating papers. The trial court erred in holding that while drawing the sample, mandatory procedure prescribed under section 14 of the Act are not followed. That the trial court erred in not believing the evidence of the prosecution witnesses in its true spirit.
Making above submissions, he has requested to allow the present appeal.
4. Mr.K.D. Shroff, learned advocate for the respondent - original accused has submitted that there is hardly any substance in the submissions of learned APP. There is no admissible evidence on record connecting the accused with the commission of the offence. There are material contradictions and omissions in the evidence of the prosecution witnesses and evidence. That the deposition of Page 4 of 12 Downloaded on : Wed Feb 09 21:11:13 IST 2022 R/CR.A/814/2009 CAV JUDGMENT DATED: 09/02/2022 the witnesses and evidence of the prosecution adduced by the prosecution are not reliable. That the prosecution has failed to prove the case against the accused beyond reasonable doubt. There is inherent lecuna in the report of the Public Analyst As held by the learned Magistrate, the sanction was granted without application of mind. As held by the learned Magistrate while drawing the sample, mandatory procedure prescribed under section 14 of the Act was not followed.
Making above submissions, he has requested to dismiss the present appeal.
5. Heard the learned advocates for the respective parties and perused the impugned judgement and order of acquittal.
6. Before adverting to the facts of the case, it would be worthwhile to refer to the scope in Acquittal Appeals. It is well settled by is 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, Page 5 of 12 Downloaded on : Wed Feb 09 21:11:13 IST 2022 R/CR.A/814/2009 CAV JUDGMENT DATED: 09/02/2022 the presumption of his innocence is further reaffirmed and strengthened by the trial Court.
6.1. It appears that the sanction Ex.32 was given without application of mind and without appreciating the papers and therefore, it cannot be valid and legal as per section 20 of the Act and therefore the accused is entitled to benefit of doubt.
6.2. It appears that the complainant has not proved the prosecution case from documentary evidence produced before the Court and therefore also benefit of which requires to be given to the respondent accused.
6.3. Further, so far as the evidence with regard to the utensils is concerned, it has been brought on record that the utensil in which in which the sample was drawn, was not dry and clean and therefore, procedure laid down under Rule 14 of the Act is violated and benefit of which was rightly given to the accused. Furthermore, it appears that while drawing sample under section 14, mandatory procedure has not been followed. Even from the deposition of the Food Inspector - complainant, who has been examined at Ex.13, it cannot be said that the sample was found to be adulterated. It also appears that the Panch witnesses have also not supported the case of the prosecution. There is no reason given by the Local Health authorities for filing complaint.
Page 6 of 12 Downloaded on : Wed Feb 09 21:11:13 IST 2022R/CR.A/814/2009 CAV JUDGMENT DATED: 09/02/2022 6.4. It appears that the there is no admissible evidence on record connecting the accused with the commission of the offence. There are material contradictions and omissions in the evidence of the prosecution witnesses and evidence.
7. That the deposition of the witnesses and evidence of the prosecution adduced by the prosecution are not trust worthy. There is inherent lecuna in the report of the Public Analyst. As held by the learned Magistrate, the sanction was granted without application of mind. As held by the learned Magistrate while drawing the sample, mandatory procedure prescribed under section 14 of the Act was not followed. From the evidence on record, it is clear that the That the prosecution has failed to prove the case against the accused beyond reasonable doubt and the trial court has rightly acquitted the accused.
8. It may be noted that as per the settled legal position, when two views are possible, the judgment and order of acquittal passed by the trial Court should not be interfered with by the Appellate Court unless for the special reasons. A beneficial reference of the decision of the Supreme Court in the case of State of Rajasthan versus Ram Niwas reported in (2010) 15 SCC 463 be made in this regard. In the said case, it has been observed as under:-
"6. This Court has held in Kalyan v. State of U.P., Page 7 of 12 Downloaded on : Wed Feb 09 21:11:13 IST 2022 R/CR.A/814/2009 CAV JUDGMENT DATED: 09/02/2022 (2001) 9 SCC 632 :
"8. The settled position of law on the powers to be exercised by the High Court in an appeal against an order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is passed, it is equally well settled that the presumption of innocence of the accused persons, as envisaged under the criminal jurisprudence prevalent in our country is further reinforced by his acquittal by the trial court. Normally the views of the trial court, as to the credibility of the witnesses, must be given proper weight and consideration because the trial court is supposed to have watched the demeanour and conduct of the witness and is in a better position to appreciate their testimony. The High Court should be slow in disturbing a finding of fact arrived at by the trial court. In Kali Ram V. State of Himachal Pradesh, (1973) 2 SCC 808, this Court observed that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to Page 8 of 12 Downloaded on : Wed Feb 09 21:11:13 IST 2022 R/CR.A/814/2009 CAV JUDGMENT DATED: 09/02/2022 his innocence, the view which is favourable to the accused should be adopted. The Court further observed:
"27. It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilised society. Suppose an innocent person is convicted of the offence of murder and is hanged, nothing further can undo the mischief for the wrong resulting from the unmerited conviction is irretrievable. To take another instance, if an innocent person is sent to jail and undergoes the sentence, the scars left by the miscarriage of justice cannot be erased by any subsequent act of expiration. Not many persons undergoing the pangs of wrongful conviction are fortunate like Dreyfus to have an Emile Zola to champion their cause and succeed in getting the verdict of guilt annulled. All this highlights the importance of ensuring, as far as possible, that there should be no Page 9 of 12 Downloaded on : Wed Feb 09 21:11:13 IST 2022 R/CR.A/814/2009 CAV JUDGMENT DATED: 09/02/2022 wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice Such a risk can be minimised but not ruled out altogether It may in this connection be apposite to refer to the following observations of Sir Carleton Alien quoted on page 157 of "The Proof of Guilt" by Glanville Williams, second edition:
"I dare say some sentimentalists would assent to the proposition that it is better that a thousand, or even a million, guilty persons should escape than that one innocent person should suffer; but no responsible and practical person would accept such a view. For it is obvious that if our ratio is extended indefinitely, there comes a point when the whole system of justice has broken down and society is in a state of chaos."
28. The fact that there has to be clear evidence of the guilt of the accused and that in the absence of that it is not possible to record a finding of his guilt was stressed by this Court in the case of Shivaji Page 10 of 12 Downloaded on : Wed Feb 09 21:11:13 IST 2022 R/CR.A/814/2009 CAV JUDGMENT DATED: 09/02/2022 Sahebrao, (1973) 2 SCC 793, as is clear from the following observations:
"Certainly it is a primary principle that the accused must be and not merely, may be guilty before a court, can be convicted and the mental distinction between 'may be' and 'must be' is long and divides vague conjectures from sure considerations."
"9. The High Court while dealing with the appeals against the order of acquittal must keep in mind the following propositions laid down by this Court, namely, (i) the slowness of the appellate court to disturb a finding of fact; (ii) the noninterference with the order of acquittal where it is indeed only a case of taking a view different from the one taken by the High Court."
8. In Arulvelu and another versus State reported in (2009) 10 Supreme Court Cases 206, the Supreme Court after discussing the earlier judgments, observed in para No. 36 as under:
"36. Careful scrutiny of all these Page 11 of 12 Downloaded on : Wed Feb 09 21:11:13 IST 2022 R/CR.A/814/2009 CAV JUDGMENT DATED: 09/02/2022 judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment can not be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshaling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law."
8. In that view of the matter, the Criminal Appeal being devoid of merits is dismissed.
(RAJENDRA M. SAREEN,J) R.H. PARMAR Page 12 of 12 Downloaded on : Wed Feb 09 21:11:13 IST 2022