Gujarat High Court
Chief Officer Kheralu Municipal ... vs Nikeshkumar Dalsangbhai Chaudhari & on 16 February, 2015
Author: K.J.Thaker
Bench: K.J.Thaker
R/CR.A/611/2004 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 611 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.J.THAKER Sd/-
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
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 ? No
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CHIEF OFFICER KHERALU MUNICIPAL BORROUGH....Appellant(s)
Versus
NIKESHKUMAR DALSANGBHAI CHAUDHARI &
1....Opponent(s)/Respondent(s)
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Appearance:
MR BHARAT T RAO, ADVOCATE for the Appellant(s) No. 1
MR DK MODI, ADVOCATE for the Opponent(s)/Respondent(s) No. 1
MR MD MODI, ADVOCATE for the Opponent(s)/Respondent(s) No. 1
MS CM SHAH, APP for the Opponent(s)/Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE K.J.THAKER
Date : 16/02/2015
Page 1 of 8
R/CR.A/611/2004 JUDGMENT
ORAL JUDGMENT
1. The present acquittal appeal has been filed by the appellant- complainant under Section 378 of the Criminal Procedure Code against the judgment and order dated 24.12.2003 rendered in Criminal Case No.713 of 1994 by the learned Judicial Magistrate, First Class, Kheralu, whereby the accused has been acquitted of the charges of offence under sections 7 (1), 7 (5) and 16 (1) (a) (1) of the Prevention of Food Adulteration Act leveled against the respondent - accused.
2. The brief facts of the prosecution case are as under:
2.1 It is the case of the prosecution that on 31.2.1993 when the respondent was carrying milk on his cycle for the purpose of sale to the customers, sample has been drawn by the Food Inspector of Kheralu Nagar Panchayat. After following due procedure under the Act and the Rules framed thereunder, the sample was drawn and further procedure was undertaken. Thereafter, the sample was sent to the laboratory for analysis. The report of the public analyst reveals that the sample is adulterated. Necessary formalities were completed and after obtaining permission/sanction, complaint was registered against the accused.
2.2 The charge is framed against the accused person, wherein the Page 2 of 8 R/CR.A/611/2004 JUDGMENT accused pleaded as not guilty. Therefore, the prosecution led oral as well as documentary evidence against the accused. Thereafter, after filing closing purshis by the prosecution, further statement of accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded. The accused has denied the case of the prosecution and submitted that a false case is filed against him.
2.3 At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Magistrate vide impugned Judgment, acquitted the respondent-accused. Being aggrieved by and dissatisfied with the said judgment and order of acquittal dated 24.12.2003 rendered in Criminal Case No.713 of 1994 by the learned Judicial Magistrate, First Class, Kheralu, the appellant - State has preferred the present appeal before this Court.
3. Heard learned advocate, Mr.B.T.Rao for the appellant, learned APP, Ms.Shah appearing for the State as well as Mr.Modi for the respondent-accused.
4. Mr.B.T.Rao, learned advocate for the appellant submitted that judgment and order of the learned Magistrate is not proper, legal and it is erroneous. He has also argued that the learned Magistrate has not considered the evidence of the witnesses. He has argued that learned Magistrate has erred in observing that there is a difference in the report of Public Analyst, Rajkot and the Central Food Laboratory, Page 3 of 8 R/CR.A/611/2004 JUDGMENT when it was clear that the sample of milk does not conform to the quality of standards prescribed under the Act. He also submitted that the accused is wrongly acquitted in view of the fact that the panchas have not supported the panchnama. He submitted that the reason for such discrepancy is that the incident took place in 1993, while deposition of panchas was recorded in 2004. He also submitted that only in view of some delay in filing the complaint, the accused cannot be acquitted. He also submitted that only on technicalities the trial Court has acquitted the accused, therefore, this appeal may be allowed and the impugned judgment may be reversed.
5. Learned APP, Ms.Shah appearing for the State has supported the case of the appellant and adopted the arguments advanced by learned advocate Mr.B.T.Rao.
6. Per contra, Mr.Modi submitted that submitted that there is no infirmity in the impugned order. He submitted that the lower court has rightly appreciated the evidence on record and acquitted the respondent of the charges levelled against him. He submitted that the prosecution has failed to prove its case beyond reasonable doubt against the accused. He, therefore, submitted that the impugned judgment may not be interfered with and it may be confirmed.
7. I have gone through the judgment and order passed by the trial court. I have also perused the oral as well as documentary evidence Page 4 of 8 R/CR.A/611/2004 JUDGMENT led before the trial court and also considered the submissions made by learned advocates for the parties. The trial court while considering the oral as well as documentary evidence has clearly observed that the analysis of the sample was done on 6.4.1994 while the report is of 25.4.1994, therefore, it is clear that the report was not prepared when the sample was examined. It is also found that there are contradiction in the complaint and the report of analysis. It is also found that the prosecution has failed to prove that notice Rule 13 (2) of the Rules is served upon the accused. Therefore, it is rightly found that the prosecution has failed to prove its case beyond reasonable doubt. Even in the present appeal, nothing is produced or pointed out to rebut the conclusion of the trial Court. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt.
8. It is 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 Appellate Court is in agreement with the reasons assigned by the trial court acquitting the accused. In the instant case, this Court is in full agreement with the reasons given and findings recorded by the trial Court while acquitting the respondent - accused and adopting the said reasons and for the reasons aforesaid, in my view, the impugned judgment is just, legal and proper and requires no interference by this Court at this stage. Hence, this appeal requires to be dismissed.
Page 5 of 8
R/CR.A/611/2004 JUDGMENT
9. 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."
10. 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.
11. Even in a recent decision of the Apex Court in the case of Mookiah and Anr. Vs. State, Rep. By the Inspector of Police, Page 6 of 8 R/CR.A/611/2004 JUDGMENT Tamil Nadu (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 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 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]"
12. Mr. B.T.Rao 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.
13. In the above view of the matter, I am of the considered opinion that the trial court was completely justified in acquitting the respondent of the charges leveled against him. I find that the findings recorded by the trial court are absolutely just and proper and in Page 7 of 8 R/CR.A/611/2004 JUDGMENT recording the said findings, no illegality or infirmity has been committed by it. 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.
14. In the result, the appeal is hereby dismissed. The impugned Judgment and order dated 24.12.2003 rendered in Criminal Case No.713 of 1994 by the learned Judicial Magistrate, First Class, Kheralu, acquitting the respondent-accused, is hereby confirmed. Record and Proceedings, if any, be sent back to the trial Court concerned forthwith. Bail and bail bonds, if any, stand cancelled.
Sd/-
(K.J.THAKER, J) *malek Page 8 of 8