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CR.A/99119/1998	 6/ 6	JUDGMENT 
 
 

	

 

IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
 

 


 

CRIMINAL
APPEAL No. 991 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 LAW OFFICER - Appellant(s)
 

Versus
 

M/S.
KAILASH CHEMICALS & 3 - Opponent(s)
 

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Appearance
: 
MR
KP SHAH for
Appellant(s) : 1,MR SUNIL L MEHTA for Appellant(s) : 1, 
NOTICE
SERVED for Opponent(s) : 1   3                                     
    MS KRINA CALLA APP 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.229 of 1990 on 27.11.1997.

2. The appellant, who has been serving as a Law Officer with the Gujarat Pollution Control Board constituted under Section 4 of the Water (Prevention and Control of Pollution) Act, filed criminal complaint against respondent Nos.1 to 3 for the offence punishable under Sections 24, 25, 43, 44 and 47 of the Water (Prevention and Control of Pollution) Act, 1974 (hereinafter referred to as the Act ). The learned Chief Metropolitan Magistrate, Ahmedabad framed charge and proceeded with the matter and examined the prosecution witnesses namely complainant Dahyabhai Kalubhai Solanki and Mahendrasinh Madhavsinh Rakhol and considered documentary evidences such as authority which was given to the complainant to lodge the complaint vide Exh.6, the powers given to the complainant by the Board vide Exh.8, reply filed by respondent No.1 vide Exh.10, notice vide Exh.11 and the report of the public analyst. The learned Judge has, after considering the entire gamut of oral deposition as well as the documentary evidence on record of the case, held that as the prosecution committed breach of 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 ), respondent Nos.1 to 3 are required to be acquitted for the offence punishable under Sections 24, 25, 43, 44 and 47 of the Act.

3. The appellant, being dissatisfied with the order of acquittal, has preferred the present appeal. The learned advocate for the appellant submitted that the learned Judge has not appreciated the oral deposition as well as the documentary evidence, more particularly, report of the analyst in proper perspective, while acquitting respondent Nos. 1 to 3 for the offence punishable under Sections 24, 25, 43, 44 and 47 of the Act. It is submitted by the learned advocate that all the due procedures were completed while collecting the samples and there was no breach of Section 21 of the Act and Rule 27 of Rules 1976, as held by the learned Judge in acquitting respondent Nos.1 to 3. Thus, it is submitted by the learned advocate that the order passed by the learned Judge is required to be set aside and respondent Nos.1 to 3 be convicted for the offence punishable under Sections 24, 25, 43, 44 and 47 of the Act.

4. None appears for respondent Nos.1 to 3, though served and, therefore, the matter has proceeded ex-parte against respondent Nos.1 to 3. Learned A.P.P. Ms.Krina Calla, representing respondent No.4-State, submitted that the learned Judge has committed the egregious error in acquitting respondent Nos.1 to 3 under Section 21 of the Act read with Rule 27 of Rules 1976 and, therefore, the impugned order is required to be quashed and set aside and respondent Nos.1 to 3 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.4-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. I have also taken into consideration the reasons assigned by the learned Judge while acquitting respondent Nos.1 to 3 for the offence punishable under Sections 24, 25, 43, 44 and 47 of the Act. On behalf of the prosecution, complainant Dahyabhai Kalubhai Solanki has been examined and witness Mahendrasinh has also adduced the deposition in support thereof. However, considering the entire evidence on record of the case, it is clear that the prosecution has committed breach of Section 21 of the Act and Rule 27 of Rules 1976 and, therefore, benefit of the same is required to be given to the accused in view of the decision rendered in the case of Dahyabhai Kalubhai Solanki V/s. Devine Intermediates & Chemicals & Ors., reported in 1996 (1) G.L.R. 729. Thus, considering the evidence on record of the case and the reasons assigned by the learned Judge, I do not find any infirmity in the judgment rendered by the learned Chief Metropolitan Magistrate, Ahmedabad while acquitting respondent Nos.1 to 3 for the offence punishable under Sections 24, 25, 43, 44 and 47 of the Act.

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