Gujarat High Court
Virendra Hirabhai Rathod vs Satishkumar Manubhai Nayak & ... on 9 December, 2014
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
R/CR.A/1299/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1299 of 2014
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VIRENDRA HIRABHAI RATHOD....Appellant(s)
Versus
SATISHKUMAR MANUBHAI NAYAK & 1....Opponent(s)/Respondent(s)
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Appearance:
M/S RJ RAWAL ASSOC., ADVOCATE for the Appellant(s) No. 1
MS SHIVYA A DESAI, ADVOCATE for the Appellant(s) No. 1
MRS QUEROBINA YAGNIK, ADVOCATE for the Opponent(s)/Respondent(s)
No. 1
MR, HARDIK SONI, APP,for the Opponent(s)/Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 09/12/2014
ORAL ORDER
[1] The present acquittal Appeal has been filed by the appellant - original complainant i.e. Virandra S/o Hirabhai Rathod, Food Inspector under Section 378 of the Cr. P.C., against the Judgment and order dated 19.09.2013 rendered by the learned Additional Chief Metropolitan Magistrate, Court No.6, Ahmedabad, in Criminal Case No.3691 of 2012. The said case was registered against respondent No.1-original accused for the offence punishable under Section 59(1) for breach of Sections 3(i)(zz)(5) and Sections 26(1)(2)(i) of the Food Safety and Standards Act, 2006.
[2] According to the prosecution case, complainant-appellant is legally appointed Food Safety Officer and sample of cow milk was taken by him from the place of respondent No.1-accused. As per the oral evidence of the complainant at Exh.9, it was Page 1 of 6 R/CR.A/1299/2014 ORDER disclosed by him that he has followed the Rules of 2.4.1to 2.4.9 of Food Safety and Standards Regulation, 2011 and notice was also given to the respondent-accused under Section 46(4). The said sample was sent to R.F.L. for re-examination and as per the report of that sample, the same was declared unsafe. The bottles which were used in taking sample were of plastic packed bottles. Oral evidence of the peon was recorded at Exh.37, who supported the case of the complainant. The sanction which was given was legal and the procedure of sealing and seizing was also carried out in presence of panchas and therefore, prayer was made by the complainant to punish the respondent-accused.
[3] On the basis of above allegations, charge was framed and read-over and explained to the accused for the offence punishable under Section punishable under Section 59(1) for breach of Sections 3(i)(zz)(5) and Sections 26(1)(2)(i) of the Food Safety and Standards Act, 2006. The respondent-accused pleaded not guilty to the charge and claimed to be tried.
[4] Thereafter, after filing closing pursis by the prosecution, further statement of accused person under Section 313 of the Code of Criminal Procedure, 1973 was recorded, wherein, it is admitted by the respondent-accused that the sample was taken by the complainant from his shop while other facts disclosed by the complainant were not admitted by the respondent-accused. It is further disclosed by the respondent- accused that report of Director, Referal Food Laboratory, Gaziabad has no importance because it has not examined in accordance with law. The milk was not adulterated and therefore, mistake crept in the report is not required to be taken into consideration. The respondent-accused has denied Page 2 of 6 R/CR.A/1299/2014 ORDER the case of the prosecution and submitted that a false case is filed against him.
[5] In support of the prosecution case, prosecution has examined following oral evidences :-
Sr. Exh. Name of Witness No. 1 9 Complainant-Virendra Haribhai Rathod 2 36 Panch Witness-Murarjibhai Vohra 3 37 Peon-Sukhdevbhai Mangabhai Vaghela
[6] In support of the prosecution case, the prosecution has produced several documentary evidences like complaint at Exh.1, report and letter of R.F.L. at Exh.2 and 3 etc. [7] Thereafter, arguments of both the sides were heard by the learned trial Judge at length and discussed oral and documentary evidence produced on record and passed the acquittal order in favour of the respondent-accused, wherein learned trial Judge has considered that the complainant could not prove its case beyond reasonable doubt. Being aggrieved by and dissatisfied with the said judgment and order of acquittal dated 19.09.2013 rendered by the learned Additional Chief Metropolitan Magistrate, Court No.6, Ahmedabad, in Criminal Case No.3691 of 2012, the appellant-original complainant has preferred the present appeal before this Court.
[8] Heard Ms. Shivya Desai, learned advocate for R.J.Rawal Associates, for the applicant-original complainant, Mrs.Querobina, learned advocate for respondent No.1-original accused and Mr. Hardik Soni, learned APP for respondent No.2- Page 3 of 6
R/CR.A/1299/2014 ORDER State of Gujarat.
[9] Ms.Shivya Desai, learned advocate for the applicant- complainant has read the judgment and order of acquittal and evidence produced on record and contended that learned trial Judge has wrongly acquitted the respondent-accused and thereby committed a grave error. As far as the Provision of law is concerned, the case is already established and proved beyond reasonable doubt, but learned trial Judge has not considered the same and therefore, she prayed to set aside the judgment and order of the acquittal.
[10] Mrs.Querobina, learned advocate for respondent No.1- original accused contended that when the sample was proved unsafe, then as per the law, the respondent-accused cannot be convicted.
[11] Mr.Hardik Soni, has contended that prima-facie case is not made out against the appellant-original complainant. He further contended that even State has not filed any appeal against the acquittal order passed by learned Additional Chief Metropolitan Magistrate, Court No.6, Ahmedabad. Lastly, he prayed to confirm the order of the acquittal.
[12] I have gone through the impugned judgment and order passed by the learned trial Judge. I have read the oral evidence of witnesses. I have also considered the submissions made by learned advocates for both the parties.
[13] Looking to the observations made by the learned trial Judge at paras-2 and 3, it is rightly observed by the learned trial Judge that as per the provisions of law, the sample was unsafe. I have minutely perused the judgment and order of Page 4 of 6 R/CR.A/1299/2014 ORDER learned trial Judge and also gone through the Provisions of law. It appears from the evidence that learned trial Judge has rightly acquitted the respondent-accused. In view of the above observations made by the learned Judge, I am in complete agreement that the learned Judge has rightly acquitted the respondent-accused. There in no substance in the appeal and the arguments made by Ms. Shivya Desai, learned advocate for applicant-complainant. Though learned advocate Ms. Shivya Desai, has tried to establish her case, but the Court has not found any sufficient evidence to consider and entertain this appeal.
[14] In a recent decision of the Apex Court in the case of State of Goa V. Sanjay Thakran & 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:
"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 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."Page 5 of 6
R/CR.A/1299/2014 ORDER [15] Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors, reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs Vs. state of MP, reported in 2007 AIR SCW 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled.
[16] In view of the above, the Appeal is hereby dismissed. The impugned judgment and order dated 19.09.2013 rendered by the learned Additional Chief Metropolitan Magistrate, Court No.6, Ahmedabad, in Criminal Case No.3691 of 2012, acquitting the respondent-accused is hereby confirmed. Record and proceedings, if any, be sent back to the trial Court concerned, forthwith. Bail bond shall stand cancelled.
(Z.K.SAIYED, J.) siddharth Page 6 of 6