D vs The

The appellant-Food Inspector of Ahmedabad Municipal Corporation, has preferred this Appeal under Section 378 of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal dated 19th February 2009 passed by the learned Metropolitan Magistrate, Court No.6, Ahmedabad in Criminal Case No.29 of 2004, whereby the learned Magistrate has acquitted the respondent no.1-accused of the charges levelled against him.

The short facts of the prosecution case is that the complainant is serving as a Food Inspector Ahmedabad Municipal Corporation. It is also the case of the complainant that on 06th September 2004 at about 10:30 hours, the complainant along with his Peon visited the business place of the respondent no.1-accused and purchased 1.5 liter of Cow Milk after paying consideration in presence of Panch. It is the case of the complainant that the respondent no.1-accused is the owner of the business place. It is also the case of the complainant that after following due procedure prescribed under the law, the complainant sent one sample to the Public Health Laboratory for analysis. On examination, the Public Analyst found that the said sample was not as per the standard prescribed and was adulterated. Thereafter, after obtaining necessary sanction, the complainant-Food Inspector filed case against the respondent no.1-accused in the court of learned Metropolitan Magistrate, Ahmedabad.

Thereafter the trial was conducted before the learned Magistrate. To prove the case of the prosecution, prosecution has produced oral as well as documentary evidence. After considering the oral as well as documentary evidence, the learned Magistrate has acquitted the respondent no.1-accused from the charges alleged against him by the judgment and order dated 11th February 2009.

Being aggrieved and dissatisfied with the said judgment and order dated 19th February 2009 passed by the learned Metropolitan Magistrate, Court No.6, Ahmedabad in Criminal Case No.29 of 2004, the appellant-Ahmedabad Municipal Corporation, has preferred the above mentioned Criminal Appeal.

I have heard Ms. Shaili Kapadia, learned counsel for the appellant and Mr. A.J. Desai, learned Additional Public Prosecutor, appearing on behalf of respondent no.2-State. I have also gone through the papers and the judgment and order passed by the Trial Court.

Ms.

Shaili Kapadia, learned counsel for the appellant, has taken me through the evidence of prosecution witnesses and the documentary evidence and submitted that from the above evidence it is established that the prosecution has successfully proved its case beyond reasonable doubt. She contended that the witnesses have supported the case of the prosecution and the learned Magistrate has committed grave error in disbelieving and discarding the evidence of witnesses. She also contended that the learned Magistrate has not considered the fact that the Food Inspector has followed the proper procedure while collecting the sample. She, therefore, contended that the judgment and order passed by the learned Magistrate is without appreciating the facts and evidence on record.

I have gone through the judgment of the Trial Court. I have also perused the reasons assigned by the learned Magistrate.

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.

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.

Even in a recent decision of the Apex Court in the case of State of Goa Vs. 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 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.

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.

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 reasoning, 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.

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.

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 before the Trial Court and also considered the submissions made by learned Advocate for the appellant.

The Trial Court has, after appreciating the oral as well as documentary evidence, found that the Food Inspector has committed breach of mandatory provisions of the Rules while taking the sample. It is also observed that result of Public Analyst and Central Food Laboratory is different. Thus, the prosecution has failed to prove the case beyond reasonable doubt against the respondent no.1-accused. The prosecution has also not followed the provision of Rule 14 of the Rules. It is also observed that the prosecution has failed to prove that the complainant has used neat and clean vessels. The prosecution has failed to prove beyond reasonable doubt that the complainant has followed the mandatory provision of Section 20 of the Act. The Trial Court has observed that there are serious lacuna in the oral as well as documentary evidence of prosecution. Nothing is produced on record of this appeal to rebut the concrete findings of the Trial Court.

Thus, the appellant could not bring home the charges against the respondent no.1-accused in the present appeal. The prosecution has miserably failed to prove the case against the respondent no.1-accused. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt.

Learned counsel for the appellant is not in a position to show any evidence to take a contrary view in 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.

In above view of the matter, I am of the considered opinion that the Trial Court was completely justified in acquitting the respondent no.1-accused of the charges levelled against him. I find 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.

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. Hence the appeal is hereby dismissed. Record and Proceedings to be sent back to the Trial Court, forthwith. Bail bonds, if any, shall stands cancelled.

(Z.

K. Saiyed, J) Anup Top