CR.A/398/1989 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 398 of 1989 HONOURABLE MR.JUSTICE KS JHAVERI =================================== 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 ? =================================== STATE OF GUJARAT - Appellant(s) Versus MANHARLAL A GANDEVIWALA & 1 - Opponent(s) =================================== Appearance : MR SP HASURKAR, APP, for Appellant(s) : 1, MR RR MARSHALL for Opponent(s) : 1, NOTICE SERVED for Opponent(s) : 2, =================================== CORAM : HONOURABLE MR.JUSTICE KS JHAVERI CR.A/398/1989 2/8 JUDGMENT Date : 01/10/2007 ORAL JUDGMENT 1. This appeal is directed against the judgment and order dated 15th April 1989 passed by the learned Additional Sessions Judge, Surat, in Criminal Appeal No.11 of 1985 whereby the learned Judge has quashed and set aside the judgment and order of conviction passed by the learned 4th Joint Civil Judge (J.D.) and Judicial Magistrate, First Class, Surat, in Criminal Case No.66 of 1983 whereby the respondents were convicted and sentenced the respondents to undergo R.I for one year and to pay fine of Rs.2000/-, in default to undergo S.I. For six months. 2. The short facts of the case is that the Drug Inspector of Ahmedabad visited the premises of the respondents and took five samples of Boric Acid (I.P.) manufactured by Masmin Laboratories of Bombay from five different batches. After testing it was alleged that out of five, four samples were adulterated. A complaint was therefore filed against the respondents for the alleged commission of offence punishable under sections 18A(1) and 18(c) of the Drugs and Cosmetics Act. The case was numbered as Criminal Case No.66 of 1983. CR.A/398/1989 3/8 JUDGMENT 3. After recording necessary evidence the learned 4th Joint Civil Judge (J.D.) and Judicial Magistrate, First Class,Surat, convicted the respondents for the offence under section 18(1) and 18(c), read with section 27 of the Drugs and cosmetics Act, 1940 and sentenced them to undergo R.I. For one year and to pay a fine of Rs.2000/-, in default to undergo S.I. For six months. 4. Feeling aggrieved by the judgment and order of conviction and sentence passed by the learned 4th Joint Civil Judge (J.D.) and Judicial Magistrate, First Class, Surat, in Criminal Case No.66 of 1983, the respondents had preferred Criminal Appeal No.11 of 1985 before the Sessions Court, Surat. The learned Additional sessions Judge, Surat, by judgment and order dated 15th April 1989 quashed and set aside the judgment and order of conviction and sentence against which the present appeal has been filed. 5. Mr. Hasurkar appearing for the appellant submitted that the learned Judge committed an error in applying procedure for giving intimation of taking sample CR.A/398/1989 4/8 JUDGMENT prescribed under the provisions of Prevention of Food Adulteration Act to the case of Drugs sample under the Drugs and Cosmetics Act, 1940. Under the said Act of 1940, the intimation of taking sample is to be given during the process of sampling the drugs and it is not to be given before taking the sample as required under the provisions of Prevention of Food Adulteration Act. He further submitted that the appellate court has also erred in holding that the accused has complied with all the formalities prescribed under Drugs and Cosmetics Act and the Rules. He, therefore, submitted that the appeal requires to be allowed. 6. Mr.Marshal, learned Advocate appearing for the respondent submitted that the learned Magistrate has considered all the aspects and evidence on record and did not find sufficient evidence to convict the respondent and therefore this Court may not interfere with the impugned judgement and order. 7. At the outset it is required to be noted that the scope CR.A/398/1989 5/8 JUDGMENT and power of the appellate court to interfere in appeal against acquittal is now well settled. In the case of State of Goa Vs. Sanjay Thakran, reported in (2007)3 SCC 755, the Apex Court held that the appellate court can review the evidence and interfere with the order of acquittal only if the approach of lower court is vitiated by some manifest illegality or the decision is perverse and the court has committed a manifest error of law and ignored the material evidence on record. Para 16 of the said decision reads 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 judgement delivered by the Court below. However,the appellate court has a power to review the evidence if it is of the view that the view 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 reappreciate the evidence to arrive at a just decision on the basis of material CR.A/398/1989 6/8 JUDGMENT placed on record to find out whether any of the accused is connected with commission of the crime he is charged with. 8. I have heard learned Advocates for the respective parties. As a result of hearing and perusal of the record it is found from the appellate court has clearly found that the raid was effected in the shop of the respondent, the respondent had disclosed the name of the manufacturer from whom he had purchased the goods and had also produced the bills. According to the appellate court, all the requirements of the Act and the Rules have been complied with by the respondent. He had purchased the goods form Masmine Laboratory, Bombay and other dealers and licensees in the same condition. It was also the finding that all the details which were observed by the Public Analyser were not supplied, particularly the original writings and the person who has examined the sample was not examined. It is also the finding of the appellate court that the complainant has not followed many of the provisions of the Act, especially section 23 of the Act. The appellate court has in detail discussed the details of non-compliance of the provisions in paragraphs CR.A/398/1989 7/8 JUDGMENT 13 to 20 of the Judgement.In the present appeal learned Advocate for the appellant is not in a position to show any evidence to take a contrary view of the matter. There is nothing on record to show that the approach of the appellate court is vitiated by some manifest illegality or the decision is perverse and the court has committed a manifest error of law and ignored the material evidence on record. I am in complete agreement with the reasonings adopted and findings arrived at by the appellate court. However, I am not discussing the evidence of each witness in detail in view of the observations made 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.” 8. In the premises aforesaid, the appeal is required to CR.A/398/1989 8/8 JUDGMENT be dismissed and is accordingly dismissed. R & P, if lying in this Court, shall be sent back forthwith. [K.S. JHAVERI, J.] ar