Gujarat High Court
State Of Gujarat vs Omprakash Dhanshiram Pandit (Vendor) & on 2 February, 2015
Author: K.J.Thaker
Bench: K.J.Thaker
R/CR.A/52/2003 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 52 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.J.THAKER
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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, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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STATE OF GUJARAT....Appellant(s)
Versus
OMPRAKASH DHANSHIRAM PANDIT (VENDOR) &
1....Opponent(s)/Respondent(s)
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Appearance:
MS MH BHATT, PUBLIC PROSECUTOR for the Appellant(s) No. 1
MR KD SHROFF, ADVOCATE for the Opponent(s)/Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE K.J.THAKER
Date : 02/02/2015
ORAL JUDGMENT
1. By way of this appeal, the appellant- State has challenged the judgment and order of the learned JMFC, Kapadvanj(for short, 'the trial Court'), Dated : 12.09.2002, rendered in Criminal Case No. 56 of 1996, whereby, the learned trial Court acquitted the original accused - the Page 1 of 12 R/CR.A/52/2003 JUDGMENT Respondents, herein, of the charges under Sections 7(1), 7(5) and Section 16(1A) of the Prevention of Food Adulteration Act.
2. The brief facts of the case of the prosecution, as set out before the trial Court, are that the original complainant, who was discharging duties as Food Inspector, went to the shop of original accused Nos. 1 and 2-Respondents, herein, on 26.07.1994 and purchased a sample of curd for analysis by making necessary payment after informing the accused about the same and send the same to Public Analyst at Rajkot. On receiving the report from Public Analyst, Rajkot, the complainant lodged the complaint in question. Pursuant thereto, the original accused Nos. 1 and 2 were issued summons and as they did not plead guilty, the case was committed for trial.
3. At the time of trial, the prosecution, in support of its case, examined the complainant at Exhibit-13 and the panch witness vide Exhibit-62.
4. Apart from that the prosecution also produced as many as 24 documents to strengthen its case, viz. the complaint, panchnama, report of P.A., Rajkot, etc..
5. After recording the evidence of the Page 2 of 12 R/CR.A/52/2003 JUDGMENT witnesses and perusing the material on record, the trial Court passed the impugned order. Hence, the present appeal.
6. Learned APP for the appellant-State, vehemently submitted that the trial Court committed a grave error in passing the impugned judgment and order, inasmuch as it failed to appreciate the material on record in its proper perspective. She, submitted that taking into consideration the oral evidence of the witnesses examined by the prosecution as well as the documentary evidences produced by it, the trial Court ought to have held the accused Nos. 1 and 2 guilty of the charges leveled against them. She, therefore, prayed that the appeal be allowed.
7. On the other hand, Mr. Shroff, learned Advocate for the accused Nos. 1 and 2-Respondents, herein, opposed the appeal and submitted that the trial Court acquitted the accused after perusing the entire material on record, and hence, no interference is called for at the hands of this Court and the appeal be dismissed.
8. I have heard learned APP for the appellant-State as well as the learned Advocate for the original accused Nos. 1 and 2 and perused the material on record with their assistance.
Page 3 of 12R/CR.A/52/2003 JUDGMENT
9. The case of the prosecution before the trial Court was that the accused Nos. 1 and 2 were selling the adulterated curd. In that regard if the material on record is perused, it becomes clear that as per the provisions of Rule 14, which is mandatory in nature, the Food Inspect, at the time of taking a sample, has to take care that the container / utensil in which he intends to take the sample is properly washed, dried and does not contain any colour or odur and not only that, the prosecution has to establish, at the time of trial, that the provisions of Rule 14 are complied with. In the instant case, the complainant-Food Inspector, no where, in his evidence, stated that as to when and in whose presence he had cleaned the container / utensil used in taking the disputed sample. It has, further, come on record that the complainant-Food Inspector had not sent a copy of the report of P.A., Rajkot, to accused Nos. 1 and 2 due to which the accused Nos. 1 and 2 lost their valuable right of getting another opinion in regard to the very same curd. In above view of the matter, this Court has to look into the matter from the touchstone of the decisions of the Hon'ble Apex Court.
10. The principles which would govern and regulate the hearing of an appeal by this Court, Page 4 of 12 R/CR.A/52/2003 JUDGMENT against an order of acquittal passed by the trial Court, have been very succinctly explained by the Apex Court in catena of decisions. In the case of "M.S. NARAYANA MENON @ MANI VS. STATE OF KERALA & ANR", (2006) 6 S.C.C. 39, the Apex Court has narrated 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."
11. Further, in the case of "CHANDRAPPA Vs. STATE OF KARNATAKA", reported in (2007) 4 S.C.C. 415, the Apex Court laid down the following principles;
"42. 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, re-appreciate and reconsider the Page 5 of 12 R/CR.A/52/2003 JUDGMENT 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."Page 6 of 12
R/CR.A/52/2003 JUDGMENT 12. Thus, it is a settled principle that while exercising appellate powers, even if two
reasonable views / 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.
13. Even in the case of "STATE OF GOA Vs. SANJAY THAKRAN & ANR.", reported in (2007) 3 S.C.C. 75, the Apex 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;
"16. 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 Page 7 of 12 R/CR.A/52/2003 JUDGMENT 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."
14. Similar principle has been laid down by the Apex Court in cases of "STATE OF UTTAR PRADESH VS. RAM VEER SINGH & ORS.", 2007 A.I.R. S.C.W. 5553 and in "GIRJA PRASAD (DEAD) BY L.R.s VS. STATE OF MP", 2007 A.I.R. S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled.
15. In the case of "LUNA RAM VS. BHUPAT SINGH AND ORS.", reported in (2009) SCC 749, the Apex Court in para 10 and 11 has held as under;
"10. The High Court has noted that the prosecution version was not clearly believable. Some of the so called eye witnesses stated that the deceased died because his ankle was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The doctor who conducted the postmortem and examined the witnesses had categorically stated that it was not possible that somebody would throw a person out of the bus when it was in running condition.
11. Considering the parameters of appeal against the judgment of acquittal, we are not inclined to interfere in this appeal. The view of the High Court cannot be termed to be perverse and is a possible view on Page 8 of 12 R/CR.A/52/2003 JUDGMENT the evidence."
16. Even in a recent decision of the Apex Court in the case of "MOOKKIAH AND ANR. VS. STATE, REP. BY THE INSPECTOR OF POLICE, TAMIL NADU", reported in AIR 2013 SC 321, the Apex Court in para 4 has held as under:
"4. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be reappreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach Page 9 of 12 R/CR.A/52/2003 JUDGMENT are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal. [Vide State of Rajasthan vs. Sohan Lal and Others, (2004) 5 SCC 573]"
17. It is also a settled legal position that in acquittal appeals, the appellate Court is not required to rewrite 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", AIR 1981, SC 1417, wherein it is held as under;
"...This Court has observed in Girija Nandini Devi V. Bigendra Nandini Choudhary (1967) 1 SCR 93:(AIR 1967 SC 1124) that it is not the duty of the Appellate 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."
18. In a recent decision, the Hon'ble Apex Court in "SHIVASHARANAPPA & ORS. VS. STATE OF KARNATAKA", JT 2013 (7) SC 66 has held as under;
"That appellate Court is empowered to re- appreciate the entire evidence, though, certain other principles are also to be adhered to and it has to be kept in mind that acquittal results into double Page 10 of 12 R/CR.A/52/2003 JUDGMENT presumption of innocence."
19. Further, in the case of "STATE OF PUNJAB VS. MADAN MOHAN LAL VERMA", (2013) 14 SCC 153, the Apex Court has held as under;
" The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Hence, the burden rests on the accused to displace the statutory presumption raised under Section
20 of the 1988 Act, by brining on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his Page 11 of 12 R/CR.A/52/2003 JUDGMENT evidence must be tested in the same way as that of any other interested witness. In a proper case, the court may look for independent corroboration before convincing the accused person."
20. Thus, the above-mentioned decisions will not permit this Court to take a different view. In this case it is not proved beyond doubt that the original accused Nos. 1 and 2-Respondents, herein, indulged into adulteration. Hence, the present appeal deserves to be dismissed.
21. In the result, this appeal fails and is DISMISSED. The judgment and order of the trial Court, Dated : 12.09.2002, stands CONFIRMED. Bail bonds of the accused, if any, on bail, stands discharged. R & P be sent back to the concerned trial Court, forthwith.
(K.J.THAKER, J) UMESH Page 12 of 12