Bombay High Court
The State Of Maharashtra vs Hasmukh H.Agrawal & Ors on 7 February, 2020
Equivalent citations: AIRONLINE 2020 BOM 1739
Author: K.R. Shriram
Bench: K.R.Shriram
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1224 OF 2003
The State of Maharashtra )
(At the instance of one Shri D.K. Nehete, )
Adult, Food Inspector, Office of the )
Assistant Commissioner, Food and Drug )
Administration, (M.S.), Raigad - Pen ) ....Appellant/Complainant
V/s.
1. Shri Hasmukh H. Agrawal, )
Adult, Vendor, R/o. Poinad, )
Tal. Alibag, Dist. Raigad )
2. Shri Mohanlal R. Thakkar, )
Proprietor of M/s. M.R. Thakkar and Sons, )
Shop No.2, Prakash Apartment, Dobee Ali, )
Tembi Naka, Thana )
3. Shri Mahesh V. Thakkar, )
Proprietor of M/s. V.N. Thakkar, )
Hingwal and Sons, 71, Yousuf, )
Meharalli Road, Bombay - 400 003 ) .....Respondents/Accused
----
Ms. Pallavi Dabholkar, APP for State - Appellant.
Mr. D.T. Kharmate a/w. Mr. Rahul D. Kharmate and Ms. Swapnali Mestry for
respondent nos.1 and 2.
Mr. R.V. Higekar a/w. Ms. Dhawani Bokaria and Ms. Jheel Mehta i/b.
Purnanand and Company for respondent no.3.
----
CORAM : K.R.SHRIRAM, J.
DATE : 7th FEBRUARY 2020
ORAL JUDGMENT :
1 This is an appeal impugning an order and judgment dated 15th April 2003 whereby the Chief Judicial Magistrate, Raigad, Alibag, acquitted respondent nos.1,2 and 3 of offences under Section 7 (i), read with Section 2 (ia) (a) and 2 (ia) (m) punishable under Section 16 of Prevention of Food Adulteration Act 1954 (PFA).
Gauri Gaekwad
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2 It is the case of prosecution that on 10 th February 1998 at about
10 a.m. complainant (PW-1) went to the shop of original accused no.2, who during the pendency of trial expired, alongwith the panch witness Shri Dinesh Kundanmal Jain and purchased 12 tin packed boxes of compounded asafoetida of 50 grams each. The lable on each tin was of Laxminarayan compounded asafoetida and Laxminarayan is a registered trademark of B.N. Thakkar Hingwala and Sons. Complainant divided 600 grams of samples in three equal parts of 200 grams each and each sample was wrapped in a brown paper separately and both ends of brown paper were folded in and pasted by means of gum. Samples were sent to the concerned authority and according to complainant, the concerned authority, viz., Public Analyst, State Public Health Laboratory, Pune, opined that the sample sent to him did not conform to the standards of compounded asafoetida as per PFA Rules 1955. The report is at Exhibit 62. Accordingly, PW-1 applied for sanction and on receiving sanction, filed the complaint. It is alleged that accused no.1/original accused no.2 had purchased the sealed tins from original accused no.3, who is now accused no.2, who had sourced it from accused no.4, who is now accused no.3. Accused no.3 is the manufacturer of the Laxminarayan brand compounded asafoetida. 3 Accused pleaded not guilty and claimed to be tried. Prosecution led evidence of complainant - D.K. Nehete as PW-1 and one Moreshwar Vasudev Kadu, who is a clerk in the office of Local Health Authority, as PW-2. After considering the evidence, the Trial Court acquitted the accused for Gauri Gaekwad ::: Uploaded on - 11/02/2020 ::: Downloaded on - 22/03/2020 10:51:54 ::: 3/7 210.Apeal-1224-2003.doc various reasons mentioned therein. The Trial Court's judgment is an elaborate judgment running into almost 40 pages. 4 The Apex Court in Ghurey Lal Vs. State of U.P. 1 has culled out the factors to be kept in mind by the Appellate Court while hearing an appeal against acquittal. Paragraph nos.72 and 73 of the said judgment read as under:
72. The following principles emerge from the cases above:
1. The appellate court may review the evidence in appeals against acquittal under sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.
2. The accused is presumed innocent until proven guilty.
The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.
3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that trial court was wrong.
73. In light of the above, the High Court and other appellate courts should follow the well settled principles crystallized by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal:
1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.
A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when:
i) The trial court's conclusion with regard to the facts is palpably wrong;
1. (2008) 10 SCC 450 Gauri Gaekwad ::: Uploaded on - 11/02/2020 ::: Downloaded on - 22/03/2020 10:51:54 ::: 4/7 210.Apeal-1224-2003.doc
ii) The trial court's decision was based on an erroneous view of law;
iii) The trial court's judgment is likely to result in "grave miscarriage of justice";
iv) The entire approach of the trial court in dealing with the evidence was patently illegal;
v) The trial court's judgment was manifestly unjust and unreasonable;
vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/ report of the Ballistic expert, etc.
vii) This list is intended to be illustrative, not exhaustive.
2. The Appellate Court must always give proper weight and consideration to the findings of the trial court.
3. If two reasonable views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused.
5 The Apex Court in many other judgments including Murlidhar & Ors. Vs. State of Karnataka2 has held that unless, the conclusions reached by the trial court are found to be palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice. Appellate Court should not interfere with the conclusions of the Trial Court. Apex Court also held that merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view.
We must also keep in mind that there is a presumption of innocence in favour of respondent and such presumption is strengthened by the order of acquittal passed in his favour by the Trial Court.
2. (2014) 5 SCC 730 Gauri Gaekwad ::: Uploaded on - 11/02/2020 ::: Downloaded on - 22/03/2020 10:51:54 ::: 5/7 210.Apeal-1224-2003.doc 6 The Apex Court in Ramesh Babulal Doshi Vs. State of Gujarat 3 has held that if the Appellate Court holds, for reasons to be recorded that the order of acquittal cannot at all be sustained because Appellate Court finds the order to be palpably wrong, manifestly erroneous or demonstrably unsustainable, Appellate Court can reappraise the evidence to arrive at its own conclusions. In other words, if Appellate Court finds that there was nothing wrong or manifestly erroneous with the order of the Trial Court, the Appeal Court need not even re-appraise the evidence and arrive at its own conclusions.
7 The Appellate Court has to review the evidence and give detailed findings only if it finds that there was something palpably wrong in the impugned judgment. I find nothing wrong in the impugned judgment. 8 We do not need to go into too many details to give reason for my conclusions. At the outset, the panch witness has not been examined. Therefore, it is only the evidence of PW-1 which is available. PW-1 says in his examination in chief "I divided 600 grams of samples three equal parts, each part containing 4 time compounded asafoetida. I pasted prepared labels mentioning the name of food articles and particulars on each sample, sample code no. is R.G.D./(Pen)/2/K.D. Serial No.4553 each lable pasted on sample is signed by myself, accused no.1 and witness, each sample is wrapped in the brown paper separately, both ends of brown papers were folded in and pasted by means of gum". PW-1 does not say that each packet contained four
3. 1996 SCC (cri) 972 Gauri Gaekwad ::: Uploaded on - 11/02/2020 ::: Downloaded on - 22/03/2020 10:51:54 ::: 6/7 210.Apeal-1224-2003.doc tins. Exhibit 62, on which prosecution relies, does not say they received samples in sealed tins. Thought it says lable declaration as Laxminarayan compounded asafoetida, it does not indicate that the sample, that was examined, was the sample which was seized by complainant (PW-1). Secondly Exhibit 62 says that the sample bearing L(H)A Code No.RGD(PEN)/2/K Dand Sr. No.4553 does not conform to the standards of compounded asafoetida as per PFA Rules 1955. But the report does not indicate what was the standard of compounded asafoetida as per PFA Rules to which the sample received does not conform to. 9 Even the sample, which was sent to Central Food Laboratory, Calcutta, does not indicate that what was sent there were part of the 12 tins that was purchased by complainant. The certificate of Central Food Laboratory is at Exhibit 81. It simply says "the sample of compounded asafoetida is adulterated and the seals were intact and tallied with the specimen impression of seals received separately alongwith copy of the memorandum. It would have probably helped prosecution if the sealed tins, which were purchased by complainant, were itself sent to Central Food Laboratory.
10 Therefore, I am not convinced that prosecution has proved beyond reasonable doubt the guilt of the accused. 11 There is an acquittal and therefore, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to the accused under the fundamental principle of criminal jurisprudence that Gauri Gaekwad ::: Uploaded on - 11/02/2020 ::: Downloaded on - 22/03/2020 10:51:54 ::: 7/7 210.Apeal-1224-2003.doc every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured acquittal, the presumption of their innocence is further reinforced, reaffirmed and strengthened by the Trial Court. For acquitting the accused, the Trial Court observed that the prosecution had failed to prove its case. 12 In the circumstances, in my view, the opinion of the Trial Court cannot be held to be illegal or improper or contrary to law. The order of acquittal, in my view, cannot be interfered with. I cannot find any fault with the judgment of the Trial Court.
13 Appeal dismissed.
(K.R. SHRIRAM, J.) Gauri Gaekwad ::: Uploaded on - 11/02/2020 ::: Downloaded on - 22/03/2020 10:51:54 :::