State Of Gujarat vs Amratbhai Prabhuram Dave
2021 Latest Caselaw 3642 Guj

         R/CR.MA/3920/2021                                                ORDER



          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 3920 of 2021
                   In R/CRIMINAL APPEAL NO. 306 of 2021
                                  With
                     R/CRIMINAL APPEAL NO. 306 of 2021
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                           STATE OF GUJARAT
                                 Versus
                       AMRATBHAI PRABHURAM DAVE
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Appearance:
MS. C.M. SHAH, APP, (2) for the Applicant(s) No. 1
for the Respondent(s) No. 1,2,3
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 CORAM: HONOURABLE MS. JUSTICE BELA M. TRIVEDI

                                 Date : 02/03/2021
                                  ORAL ORDER

1. The applicant - State has filed the present application seeking Leave to Appeal under Section 378(1) and 378(3) of Cr.P.C. against the judgment and order dated 13.12.2019 passed by the Additional Chief Judicial Magistrate, Banaskantha at Deesa (hereinafter referred to as 'the trial Court') in Criminal Case No. 2884 of 2005, whereby the respondents - accused have been acquitted from the charges levelled against them for the offence under Section 7 of the Essential Commodities Act, 1955 (hereinafter referred to as 'the Act').

2. The case of the prosecution before the trial Court was that the accused No. 1 and 2 were the partners of the accused No. 3 partnership firm, which was run in the name and style of M/s. Shri Sainath Medical Stores. The said firm was engaged in the business of selling drugs. It

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was further alleged that the complainant Vipul Puroshottambhai who was working as the Drug Inspector at Palanpur had received one application on 02.02.2002 from one Naranbhai to the effect that on 27.12.2001, he had purchased the drug Saline N.D. from the store of the accused which was of the expired date and that the accused had charged Rs. 24 for the said drug though the M.R.P. was Rs. 15. The accused - respondents therefore had committed the offence under Section 7 of the said Act. The Drug Inspector on the basis of said application, recorded the statement of the accused and lodged the complaint before the trial Court on 24.08.2005 against all the accused. The trial Court after recording the pre-charge and post- charge evidence, acquitted the accused from the charges levelled against them vide the impugned order. Being aggrieved by the same, the State has preferred the present application seeking leave to appeal and sought permission to prefer Appeal.

3. Learned APP Ms. Shah for the applicant -

State taking the Court to the impugned judgment submitted that though the applicant Naranbhai was not examined by the trial Court, the accused no. 1 himself had admitted before the Drug Inspector about the sale of drug Saline N.D. to the said Naranbhai for Rs. 24 though the M.R.P.

     was     Rs.     15.           According             to     her,      the        said






       R/CR.MA/3920/2021                                                 ORDER

statement of the accused No. 1 was exhibited by the trial Court against which no objection was raised by the accused, and therefore, the said statement should have been relied upon as an evidence by the trial Court for convicting the accused.

4. At the outset, it may be noted that though the prosecution had examined the Drug Inspector i.e. the complainant Vipul Puroshottambhai, the prosecution had failed to examine the applicant Naranbhai on whose application / complaint, the said Drug Inspector had carried out preliminary inquiry against the accused and lodged the complaint before the trial Court. It is also pertinent to note that the said complainant i.e. the Drug Inspector had also failed to collect the original bill from the said Naranbhai who had allegedly purchased the drug from the store of the accused. The xerox copy of the bill was not exhibited by the trial Court. Under the circumstances, there was no cogent evidence adduced by the prosecution to prove the charges against the accused. The very material allegation having not been proved by the prosecution by examining the said Naranbhai and by producing on record the original bill, by which he had purchased the drug in question from the store of the accused, the trial Court has rightly acquitted all the accused from the charges levelled against him, by holding that

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the prosecution had failed to prove the charges beyond reasonable doubt.

5. As per the settled legal position, the scope of appeal against the judgment of the acquittal is very narrow and when two views are possible the Appellate Court normally should not disturb the findings of acquittal recorded by the Sessions Court. Beneficial reference to the decision of the Supreme Court in case of State of Rajasthan versus Ram Nivas reported in (2010) 15 SCC 463 be made in this regard wherein it has been held as under :

"6. This Court has held in Kalyan v. State of U.P. reported in (2001) 9 SCC 632:

"8. The settled position of law on the powers to be exercised by the High Court in an appeal against an order of acquittal is that though the High court has full powers to review the evidence upon which an order of acquittal is passed, it is equally well settled that the presumption of innocence of the accused persons, as envisaged under the Criminal jurisprudence prevalent in our country is further reinforced by his acquittal by the trial court. Normally the views of the trial court, as to the credibility of the witnesses, must be given proper weight and consideration because the trial Court is supposed to have watch the demeanor and conduct of the witnesses and is in a better position to appreciate their testimony. The High Court should be slow in disturbing a finding of fact arrived at by the trial court. In Kali Ram. v. state of H.P., this Court observed

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that the golden thread which runs through the web of administration of justice in a criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted.""

6. In Arulvelu and another versus State reported in (2009) 10 Supreme Court Cases 206, the Supreme Court after discussing the earlier judgments, observed in para No. 36 as under:

"36. Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment can not be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshaling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law."

7. In view of the aforestated factual and legal position, the Court does not find any illegality or infirmity in the impugned judgment passed by the trial Court. The application seeking leave to appeal therefore deserves to be dismissed and is dismissed accordingly. As a result thereof, the Criminal Appeal is also dismissed.

(BELA M. TRIVEDI, J) AMAR SINGH