CR.A/1144/1999 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1144 of 1999 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 ? ========================================================= STATE OF GUJARAT - Appellant(s) Versus GORDHANBHAI BAVANJIBHAI TOPIA (OWNER AND DISTRIBUTOR - Opponent(s) ========================================================= Appearance : MR MR MENGDEY for Appellant(s) : 1, MR RR TRIVEDI for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 14/03/2008 ORAL JUDGMENT 1. The appellant – State has preferred this appeal against the judgment and order dated 7.5.1999 passed by the learned Judicial Magistrate First Class, CR.A/1144/1999 2/4 JUDGMENT Dhoraji in Criminal Case No. 21 of 1994, whereby, the respondent has been acquitted by the learned Judge for the offence punishable under sec. 2(1-A)(A)(J) (L), 7(1)(5) of the Prevention of Food Adulteration Act, 1954. 2. The fact of the prosecution case is that the complainant Mr HK Dhokia has visited the shop of the original accused namely Dinesh Provision Stores, on 6.8.1993, situated at Paravad, Nr. Bahucharaji temple and after introducing himself to the present respondent as Food Inspector, has purchased chilly powder of 600 grams from the shop of respondent and payment was made by him and, thereafter, samples were taken in a vessels and sealed the same as per the provisions of the Act. Thereafter the respondent was charge-sheeted before the trial court. 3. The trial court has proceeded further with the case and after recording the oral as well as documentary evidence, the trial court came to the conclusion that the prosecution has not followed the mandatory provisions of law and, therefore, the respondent was acquitted from the said offence. 4. Learned APP Mr. Mengdey has read the judgment of the trial court and he has fairly admitted that there was a breach of the mandatory provisions of law. At the event of filing of the appeal, there was no direct judgment to show that the breach of the mandatory provisions would be fatal to the CR.A/1144/1999 3/4 JUDGMENT prosecution case. 5. I have gone through the submissions made by the learned advocate Mr. Miraj J Sharma for Mr. RR Trivedi for the respondent. He has drawn my attention to the judgment of this Court in the case of State of Gujarat vs. Bhupendra M. Mehta, reported in 2000(1) GLH P. 679, wherein, it is observed by this Court that no specific evidence about sample bottles being dry and clean and the oral evidence found not having properly been taken down, in absence of specific words, Court cannot put in the mouth of the witness which he has not stated and not recorded, the benefit should go to the accused. 6. It is well established by law that breach of mandatory provisions of law would be fatal to the prosecution case. In the present case, it appears that the prosecution has failed to produce evidence to prove that the provisions of mandatory rules have been followed. Mr. Sharma learned advocate for the respondent has relied upon the judgment of this Court in the case of State of Gujarat vs. Doshi Chhabildas Shivlal & Ors., reported in 2007(2) GLH 637, wherein, it is observed by this Court that Court cannot go into any other ground when the provisions of mandatory nature are not followed by the prosecution and the acquittal recorded by the ld. Judge cannot be set aside. 7. From the above discussion it appears that the CR.A/1144/1999 4/4 JUDGMENT prosecution has failed to establish its case and in light of the above decision, the present appeal has no merit and the same is required to be dismissed. 8. It is 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 respondents – 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. 9. In the result, this appeal is dismissed. (Z.K. SAIYED, J.) mandora/