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CR.A/103319/1998	 6/ 6	JUDGMENT 
 
 

	

 

IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
 

 


 

CRIMINAL
APPEAL No. 1033 of 1998
 

 
 
For
Approval and Signature:  
 
HONOURABLE
MR.JUSTICE H.B.ANTANI
 
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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 ?
		
	

 

=========================================================

 

D
K SOLANKI - Appellant(s)
 

Versus
 

P
T METAL ROLLING IND. & 6 - Opponent(s)
 

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Appearance
: 
MR
KP SHAH for
Appellant(s):1 MR SUNIL L MEHTA for Appellant(s) : 1, 
MS KRINA
CALLA APP for Opponent(s) : 8 
NOTICE NOT RECD BACK for Opponent(s)
: 2 - 3,5 - 7. 
NOTICE SERVED for Opponent(s) :
4, 
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CORAM
			: 
			
		
		 
			 

HONOURABLE
			MR.JUSTICE H.B.ANTANI
		
	

 

Date
: 01/05/2009 

 

ORAL
JUDGMENT

1. This appeal, preferred under Section 378 of the Code of Criminal Procedure, 1973, is directed against the order of acquittal passed by the learned Chief Metropolitan Magistrate, Ahmedabad in Criminal Case No.1758 of 1991 on 07.01.1998.

2. As per the prosecution case, the appellant, who was serving as Law Officer with the Gujarat Pollution Control Board constituted under Section 4 of the Water (Prevention and Control of Pollution) Act (hereinafter referred to as the Act ), has been authorised to prosecute respondent Nos.1 to 7. The appellant was also given authority to file criminal case against respondent Nos.1 to 7 in the Court of learned Chief Metropolitan Magistrate, Ahmedabad for the offence punishable under Sections 24, 25, 43, 44 and 47 of the Act. The learned Judge framed charge against respondent Nos.1 to 7 and proceeded with the trial. The prosecution has examined complainants Dahyabhai Kalubhai Solanki and Bhavdip Gajjar in order to prove inextricable involvement of respondent Nos.1 to 7 in the commission of offence. The prosecution has also produced documentary evidences such as authority letter and the report of the Government analyst in order to indicate involvement of respondent Nos.1 to 7 in the commission of offence. The learned Judge has, after considering the entire gamut of oral deposition and documentary evidence on record of the case, held that the prosecution has miserably failed to prove entire link connecting respondent Nos.1 to 7 in the commission of offence. He, therefore, acquitted respondent Nos.1 to 7 for the offence punishable under Sections 24, 25, 43, 44 and 47 of the Act.

3. The appellant, being aggrieved by the aforesaid order, has preferred the present appeal mainly on the ground that the learned Judge has committed egregious error in acquitting respondent Nos.1 to 7 for the offence punishable under Sections 24, 25, 43, 44 and 47 of the Act, even though there was enough material and evidence available against respondent Nos.1 to 7. Learned advocate Mr.Mehta for the appellant submitted that all the mandatory procedures, as prescribed under Section 21 of the Act and Rule 27 of the Gujarat Water (Prevention and Control of Pollution) Rules, 1976 (hereinafter referred to as the Rules 1976 ), were scrupulously followed by the appellant and no error was committed in following the said procedures. Thus, it is submitted by the learned advocate that the judgment rendered by the learned Judge is required to be quashed and set aside and respondent Nos.1 to 7 be convicted for the offence punishable under Sections 24, 25, 43, 44 and 47 of the Act.

4. Respondent No.4 is served but no body appears on his behalf. Learned A.P.P. Ms.Krina Calla, representing respondent No.8-State, submitted that the learned Judge has not appreciated the evidence adduced by the prosecution in its true perspective while acquitting respondent Nos.1 to 7 for the offence punishable under Sections 24, 25, 43, 44 and 47 of the Act. Even the report of the public analyst was not considered by the learned Judge while acquitting respondent Nos.1 to 7. It is submitted by the learned A.P.P. that the order passed by the learned Judge is required to be quashed and set aside and respondent Nos.1 to 7 be convicted for the offence punishable under Sections 24, 25, 43, 44 and 47 of the Act.

5. I have heard learned advocate Mr.Sunil L. Mehta for the appellant and learned A.P.P. Ms.Krina Calla for respondent No.8-State at length and in great detail. This Court has also undertaken a complete and comprehensive appreciation of all vital features of the case as well as the entire evidence on record.

6. Taking into consideration the deposition adduced by complainants Dahyabhai and Bhavdipbhai, it becomes clear that the procedure, as prescribed under Rule 27 of the Rules 1976 has not been followed by the appellant while taking the sample. When such a procedure has not followed which is mandatory in nature, then the benefit of the same is required to be given to the accused in view of the judgment rendered by this Court in the case of Dahyabhai Kalubhai Solanki V/s. Devine Intermediates & Chemicals & Ors., reported in 1996 (1) G.L.R. 729. Thus, considering the reasons assigned by the learned Judge and evidence on record of the case, the learned Judge has rightly acquitted respondent Nos.1 to 7 for the offence punishable under Sections 24, 25, 43, 44 and 47 of the Act. There is no infirmity in the order passed by the learned Judge while acquitting respondent Nos.1 to 7.

7. This is an acquittal appeal in which Court would be slow to interfere with the order of acquittal. Infirmities in the prosecution case go to the root of the matter and strike a vital blow on the prosecution case. In such a case, it would not be safe to set aside the order of acquittal, more particularly when the evidence has not inspired confidence of the learned Judge who had opportunity to observe demeanour of the witnesses. As this Court is in general agreement with the view expressed by the learned Judge, the Court does not think it necessary either to reiterate the evidence of prosecution witnesses or to restate the reasons for acquittal given by the learned Judge and this Court is of the opinion that expression of general agreement with the view taken by the learned Judge would be sufficient in the facts of the case. This is so, in view of the decisions rendered by the Supreme Court in the cases of (1) Girija Nandini Devi & Ors. v. Bijendra Narain Chaudhari, AIR 1967 SC 1124, and (2) State of Karnataka v. Hema Reddy and another, AIR 1981 SC 1417. On overall appreciation of evidence, this Court is satisfied that there is no infirmity in the reasons assigned by the learned Judge for acquitting the respondent. Suffice it to say that the learned Judge has given cogent and convincing reasons for acquitting the respondent. The learned advocate for the appellant has failed to convince this Court to take a view contrary to the one already taken by the learned Judge and, therefore, the appeal is liable to be dismissed.

8. For the foregoing reasons, the appeal fails and it is hereby dismissed.

(H.B.ANTANI, J.) Hitesh     Top