1. This revision petition is filed by the accused in C. C. No. 583 of 49-50 on the file of the City Magistrate, Bangalore, against the order of the learned Sessions Judge in the appeal case permitting the prosecution to adduce additional evidence as per particulars to be furnished by them.
2. The undisputed facts from which this revision arises are as follows. -- The accused is a retail dealer in kerosene oil having his shop in New Tharagupet, Bangalore City. The police attached to the Anti Corruption Department having obtained information that the accused was selling kerosene oil at black-market rates, arranged a trap-purchase by sending P. W. 8 with two ten rupee marked currency notes. The accused is said to have sold two tins of kerosene oil for Rs. 19/-while the control rate is only Rs. 7/-. Soon after the purchase, the police seized the articles. The accused while admitting the sale protested that the tins contained diesel oil and not kerosene oil. There was thus dispute about the nature of the contents of the tins which arc marked M. Os. 1 and 2 in the case. The articles M. Os. 1 and 2 which were seized on 18-8-1949 were sent to the Chemical Examiner who issued a certificate that they contained kerosene oil. Alter evidence on both sides was closed, the learned Magistrate was of opinion that it was necessary in the interest of justice to examine the Chemical Examiner who had issued the certificate as a Court witness. On 23-3-1950, he was accordingly examined as a Court witness and the case was reserved for Judgment. The Court 'suo motu' conducted what is known as a smell-and-taste test, and convicted the accused holding that M. Os. 1 and 2 contained kerosene oil. Alter the accused filed the appeal, the prosecution preferred an interlocutory application (which is incorrectly marked and denominated as I. A. No. I which is a bail application) on 4-11-1950 for permission to adduce additional evidence. The reasons given are that
'there will be serious miscarriage of justice if the case should result in acquittal, on account of the wobbling nature of the Court witness, particularly when the trial Court is definitely of the opinion that the oil in the tins M. Os. 1 and 2 is kerosene oil'.
The additional evidence according to the prayer contained therein is that
'the Court would be pleased to draw samples from M. O. 1 and M. O. 2 and get the report of the Chemical Examiner thereon and also direct, C. W. 1 to carry out all the tests referred to by him in the evidence'.
The accused opposed the application on the ground that the application is too belated, that the prosecution cannot be allowed to fill up the lacuna and improve the case and that miscarriage of justice will result to the prejudice of the accused. The learned Sessions Judge held that in the interest of justice additional evidence is necessary and granted the application.
3. The crucial point for consideration is whether the grant of the application for additional evidence is justified under the circumstances of the case. It is argued for the prosecution that the grant of the relief is purely within the discretion of the appellate Judge and
'to justify an interference in revision, the Court must be satisfied that the appellate Court committed an error of law to the prejudice of the accused on the merits'.
relying upon the observation of Macphcrson J. in 'Debi Bakchand v. Barabatunnissa', AIRB (12) 1925 Pat 326. In that case when the appeal came up for hearing, the Sessions Judge found that some of the connecting links in the evidence to prove the identity of the packet (containing cocaine) examined by the Chemical Examiner were missing. Considering that evidence was defective to that extent, he recorded his reasons and directed the Magistrate to take the necessary further evidence on that point. The other case relied upon by the prosecution is reported in Bansilal Ganga Ram v. Emperor', AIR (15) 1928 Bom 241, where in a case concerning an offence under the Bombay Abkari Act, the question was as to whether certain bottles contained cocaine, the report of the Excise Analyst was objected to and held inadmissible with the result that no evidence of an expert was available and therefore the appellate Court proposed to have the Excise Analyst examined, on the ground that legal evidence as to the contents of the bottles was wanting. The two decisions referred to above are not applicable to the circumstances of the present case. No evidence is alleged to be missing as in the Patna case, nor is the certificate of the expert refused admission which obtained in the Bombay case. On the other hand, the certificate was admitted into evidence without protest, after the prosecution voluntarily closed the case, the Court took the Initiative in examining the Chemical Examiner as a Court witness and not being satisfied with the expert evidence, a small-and-taste test was employed by the Court itself. The articles were seized on 18-8-1949 and were examined by the expert on 21-8-19 and the expert was examined on 23-3-1950, The prosecution was never prevented from letting in evidence, nor is it their case that the additional evidence was not available or could not have been produced during the course of the trial. They had thus ample opportunity at each stage when the case was reopened by the Magistrate.
4. Section 428, Criminal P. C. is undoubtedly general in character and invests the appellate Court with wide powers in allowing additional evidence, subject only to the condition that it should record its reason for exercising that jurisdiction. But it cannot be denied that it forms an exception to the general rule and the powers under the section must always be exercised with great care, especially on behalf of the prosecution, lest the admission of additional evidence for the prosecution, should operate as prejudicial to the defence of the accused.
5. The petitioner relies upon 'In re United Motor Finance Co.' AIR (22) 1935 Mad 325, where Cornish, J., observes:
'that the power under Section 428 should not be exercised for the purpose of filling up a gap in the prosecution when the necessary evidence was easily available to the prosecution at the hearing and not to have been then produced'.
A similar view has been expressed by Mocket J. in 'In re Hanumanthappa', AIR (24) 1937 Mad 181. I agree with the scope of the jurisdiction laid down in those cases.
6. The learned Sessions Judge has written an elaborate Order touching upon some portions of the evidence, but I am not inclined to comment upon it at this stage lest it should prejudice either party in the conduct of the appeal. Nevertheless, I am compelled to notice one of the reasons adduced by the learned Judge to arrive at the justification to allow the application. It is mentioned in the order that C.W. 1 stated that some more tests ought to have been conducted to give a more definite opinion. On a persual of the evidence of C.W. 1, it is seen that though the witness says that there are many tests, he does not state that unless the other tests are carried out, it is impossible for him to give a more definite opinion. On the other hand, he avers that he has conducted the standard test, implying thereby that other tests were unnecessary. The test employed by him is what is known as the flash-point test, and the result was confirmed by employing the smell-and-taste test also. The infe interference of the, learned Judge based on erroneous facts is a point of law which calls for interference by the revision Court.
7. The application for additional evidence was filed more than six months after the appeal was preferred and by this date it will be nearly twenty months since the articles were seized and in my opinion, it is rather unsafe that after the lapse of such a long period, further tests of the contents of M.O. 1 and M.O. 2, should be allowed.
8. Viewed from any point, I am of opinion thatthe learned Sessions Judge has exceeded thejurisdiction under Section 428, which calls for interfeinterference by the revision Court. I therefore set asidethe order on the application for additionalevidence with a direction that the appeal may bedisposed of according to law.
9. Revision allowed.