1. The present acquittal Appeal has been filed by the appellant – Drugs Inspector, Government of Gujarat, under Section 378 of the Cr. P.C., against the Judgment and order dated 31.7.1993, rendered in E.S.T.P.Case No.16 of 1992 by the learned Special Judge, Vadodara. The said case was registered against the present respondent – original accused for the offence under sections 7(I) (a)(II) of the Essential Commodities Act read with Clause 26 and Section 3 of the Essential Commodities Act.
2. According to the prosecution case, on receipt of the information to the effect that the respondent accused used to sell the medicinal formulations, known as antimalin syrup (chloroquine phosphate) syrup I.P. 80 Mg. at a higher price than the price fixed by the Government, he inspected the accused's Pharmaceutical Lab in presence of accused – Shri Naginbhai and made inquiries from his regarding such sale and also seized two bottles of the aforesaid chloroquine phosphate syrup said to have been produced before him by the said accused alongwith his statement that was recorded by the complainant. It is the case of the complainant that in the aforesaid bottles which are given Ex.10 and 11 respectively, the maximum retail price printed on them is Rs.7/- and Rs.6/- respectively. Bottle Ex.10 is of 50 ml. while bottle Ex.11 is of 40 ml. According to complainant, the maximum retail price of the aforesaid syrup of 60 ml. bottle is of Rs.6.80 paise and on calculation the maximum price of the bottle Ex.11 would be Rs.4.06 paise and the maximum price of bottle Ex.10 would be Rs.5.07 paise. But the accused's printed price on the said bottles is higher than the aforesaid price fixed by the Government and the accused used to sell the aforesaid syrup at a higher price and therefore, he committed the aforesaid offence.
3. Thereafter, investigation was carried out and statements of several witnesses were recorded. During the course of investigation, accused person was arrested and, ultimately, chargesheet came to be filed against him in the Court of learned Magistrate.
4. Thereafter, charge came to be framed and explained to the accused person, to which the accused person not pleaded guilty and claimed to be tried.
5. In order to bring home the charges against the accused person, prosecution has examined several witnesses and also produced documentary evidence.
6. Thereafter, after filing closing pursis by the prosecution, further statements of accused person under Section 313 of the Code of Criminal Procedure, 1973 was recorded. The accused person has denied the case of the prosecution and submitted that a false case is filed against him.
7. At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge vide impugned Judgment, acquitted the respondent – accused.
8. Being aggrieved by and dissatisfied with the said judgment and order of acquittal dated 31.7.1993, rendered in E.S.T.P.Case No.16 of 1992 by the learned Special Judge, Vadodara, the appellant – State has preferred the present appeal before this Court.
9. Learned APP Ms.Jirga Jhaveri, appearing on behalf of the appellant – State has submitted that the Judgment and order of acquittal is contrary to law and evidence on record and is not proper. She has submitted that by the notification Ex.12 the Government has fixed the ceiling price regarding chloroquine phosphate syrup and the accused has charged the price of the syrup higher than the ceiling price fixed by the Government as can be seen from the label affixed on the bottles Ex.10 and 11. She further submitted that the drugs in question falls in the category of Schedule-I. It is submitted that the aforesaid drugs is exempted from the excise duty as can be seen from the Notification dated 17.7.1987. She has submitted that from the labels affixed on the bottles it can be said that the intention of the accused is to sell the aforesaid medicines at higher price and thus the public at large will be sufferer.
4. The respondent is served but none is present on behalf of the respondent.
5. Heard learned APP for the appellant – State. I have gone through the papers produced in the case. I have also gone through the evidence led before the trial Court. From clause17 it becomes very much clear that only the retail price is required to be displayed on the label of the container of the formulation and the minimum pack thereof offered for retail sale, the maximum retail price of that formulation etc. There is no provision found in the Drugs (Price Control) Order, 1987 requiring the manufacturer or distributor of a formulation intended for sale to display on the label of the container, the ceiling price of the formulation. On the bottles Ex.10 and 11, the retail price appears to have been displayed on label pasted on them as per the requirement of Clause17 of the D.P.C.O. 1987. The “ceiling price” as defined in clause 2(j) of the D.P.C.O. 1987 means a price fixed by the Government for formulation, specified in categoryI or categoryII of the third Schedule, in accordance with the provision of para6 and 7 keeping in view the costs or efficiency or both of major manufacturer of such formulation. According to Clause2 (r) of D.P.C.O. 1987 “retail price” means the retail price of a drug arrived at or fixed in accordance with the provisions of this order includes the ceiling price. Thus, the retail price includes the ceiling price.
6. In a recent decision of the Apex Court in the case of State of Goa V. Sanjay Thakran & Anr. Reported in (2007)3 SCC 75, the Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision the Court has observed 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 judgment delivered by the Court below. However, the appellate court has a power to review the evidence if it is of the view that the conclusion 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 to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with.”
7. Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors, reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs Vs. state of MP, reported in 2007 AIR SCW 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled.
8. It is settled legal position that in an acquittal Appeal, the Appellate Court is not required to rewrite 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 respondent – accused and adopting the said reasons as well as 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, the Appeal is hereby dismissed. The impugned Judgment and order dated 31.7.1993, rendered in E.S.T.P.Case No.16 of 1992 by the learned Special Judge, Vadodara, acquitting the respondent – accused, is hereby confirmed. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith.
(Z.K.SAIYED, J.) kks