Gujarat High Court
S vs Vikram on 2 February, 2010
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
Gujarat High Court Case Information System
Print
CR.A/2326/2009 7/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 2326 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
=========================================
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 ?
=========================================
S
R RAVAL
Versus
VIKRAM
MILK PRODUCTS PVT.LTD & 2
=========================================
Appearance
:
MS SHAILI A KAPADIA for
Appellant
None for Respondent Nos. 1 - 2.
MR AJ DESAI ADDL.
PUBLIC PROSECUTOR for Respondent
No.3
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 02/02/2010
ORAL
JUDGMENT
[1] The present appeal, under section 378 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 16.05.2009 passed by the learned Metropolitan Magistrate, Court No.8, Ahmedabad in Criminal Case No.2 of 2003, whereby the accused has been acquitted of the charges leveled against him for the offence punishable under Section 7(1) and 16(1)(a)(1) of the Prevention of Food Adulteration Act, 1954.
[2] The brief facts of the prosecution case are that the appellant was serving as a Food Inspector in the Health Flying Squad Department of Ahmedabad Municipal Corporation. It is alleged that on 02.09.2002 at about 1.00 a.m., the appellant accompanied by his peon Jagdishbhai N. Barot visited Vikram Milk Product Limited, Ahmedabad wherein the accused No.2 was present and doing the business and collected sample of Pasteurized Standardized New Adarsh Shakti 500 ml after following the procedure prescribed under the provisions of the Act. It is alleged that the sample was also properly taken and necessary procedure to seal the sample, etc. was followed. The sample was sent for analysis to the Public Analyst as per the provisions of the Act, whose report indicates that the sample is adulterated and a complaint was filed in the Court of learned Metropolitan Magistrate which came to be registered as Criminal Case No.2 of 2003.
[3] At the end of trial, after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Magistrate Judge acquitted the respondent of all the charges leveled against him by judgment and order dated 16.05.2009.
[4] Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the Sessions Court the appellant has preferred the present appeal.
[5] Heard learned advocate Ms.Shaili Kapadia for the appellant and learned APP Mr.A. J. Desai for the respondent No.3 State.
[6] Learned advocate Ms.Shaili Kapadia for the appellant submitted that the impugned judgment and order of the learned Magistrate is bad in law, against the settled principles of the Act and the Prevention of Food Adulteration Rules and learned Magistrate erred in appreciating the established principles of law. She further submitted that learned Magistrate has committed serious error of law and fact in holding that the method of inserting preservative formelene is faulty. It is submitted that the learned Magistrate has not properly appreciated that in the instant case, the Food Inspector has taken the sample in 3 clean and verify jars and, thereafter, in each of the sample has inserted 27 drops of formelene and thus, the preservative came to be added in equal proportion in all three samples. Therefore, it is not going to prejudice the accused persons. It is further submitted that the learned Magistrate has committed an error that the report of Public Analyst clearly reveals that the sample is adulterated. It was contended by learned advocate for the appellant that the judgment and order of the learned Magistrate is against the provisions of law; the learned Magistrate has not properly considered the evidence led by the prosecution and looking to the provisions of law itself it is established that the prosecution has proved the whole ingredients of the evidence against the present respondents. Learned advocate for the appellant has also taken this court through the oral as well as the entire documentary evidence.
[7] At the outset it is required to be noted that the principles which would govern and regulate the hearing of appeal by this Court against an order of acquittal passed by the trial Court have been very succinctly explained by the Apex Court in a catena of decisions. In the case of M.S. Narayana Menon @ Mani Vs. State of Kerala & Anr, reported in (2006)6 SCC, 39, the Apex Court has narrated about 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.
[8] Further, in the case of Chandrappa Vs. State of Karnataka, reported in (2007)4 SCC 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, 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 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.
[9] 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.
[10] Even 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.
[11] 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.
[12] 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, reported in AIR 1981 SC 1417, wherein, it is held as under:
& This court has observed in Girija Nandini Devi V. Bigendra Nandini Chaudhary (1967)1 SCR 93: (AIR 1967 SC 1124) 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.
[13] Thus, in case the appellate court agrees with the reasons and the opinion given by the lower court, then the discussion of evidence is not necessary.
[14] 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 by the trial court and also considered the submissions made by learned advocate for the appellant. The trial court has clearly recorded a finding that when the food article is kept in 25-30 degree temperature, the strength would be maintained for a period of two months whereas in the instant case, four months have passed after collecting the sample and lodging the complaint and, therefore, the right of the accused to get the sample reanalyzed by Central Food Laboratory under Section 13(2) of the Act have been jeopardized and there is no evidence adduced by the complainant that the sample is kept at which temperature and, therefore, the accused cannot be held guilty on the basis of such evidence. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt.
[15] Ms.Shaili Kapadia, learned advocate for the appellant 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.
[16] In the above view of the matter, we are of the considered opinion that the trial court was completely justified in acquitting the respondent of the charges leveled against him.
[17] I am of the view 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.
[18] 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 and hence the appeal deserves to be dismissed.
[19] In view of the above, the appeal fails and is dismissed. Bail bond, if any, stands cancelled.
[ Z. K. SAIYED,J. ] (vijay) Top