Kulwant Singh Tiwana, J.
1. Joginder Singh son of Mangal Singh resident of Ferozepur City, on prosecution, was convicted by the Chief Judicial Magistrate, Ferozepur, under Section 61 (1) (a) of the Punjab Excise Act. He preferred appeal against the order of conviction, which was heard by Sihri Aftab Singh Bakshl, Additional Sessions Judge, Ferozepur. Two affidavits of the prosecution witnesses who had at different stages handled the sample of liquor, were tendered at the trial. The affidavits were not attested in accordance with law and the Magistrate who had attested those simply wrote the word 'attested'. Before the first appellate Court the learned Public Prosecutor filed an application under Section 428, Criminal Procedure Code, for tendering the affidavits of those witnesses which were duly attested in accordance with law. The learned Additional Sessions Judge, Ferozepur, allowed this application and directed for the tendering of the affidavits as prayed by the State and also directed those witnesses to be present in Court so that Joginder Singh, if he wanted, could cross-examine them, Joginder Singh felt dissatisfied with the order of the learned Additional Sessions Judge and has come to this Court in this revision.
2. Additional evidence cannot be tendered at the appellate stage as of right, it can be permitted by the appellate Court if it considers the examination of such evidence necessary, after recording reasons in support of it.
3. In this case the prosecution had tendered in evidence the affidavits of the formal witnesses. These affidavits were taken into consideration by the learned trial Magistrate at the time of the trial in spite of the objections raised on behalf of the accused. The learned Additional Sessions Judge was wrong to say in his order that the affidavits were objected for the first time in appeal before him. Para. 12 of the judgment of the learned trial Magistrate, in clear terms, contains the objection raised by the defence regarding the attestation and the admissibility of the affidavits. The same attack, by the defence on this evidence was repeated in the grounds of appeal. It was after that, that the learned Public Prosecutor became alive of the defect in this evidence and applied for the tendering of the better attested affidavits so that the objection of the defence could be effectively met. It is not a case where the evidence was not to tine knowledge of the Prosecutor. The prosecutor in-charge of the case had not asked for the examination of any evidence which may have been declined by the learned trial Magistrate. It is a case of defective evidence led by the prosecution because of the lack of appropriate interest by the Prosecutor. Because of careless conduct and non-application of the mind on behalf of the prosecution a lacuna came to exist in the prosecution evidence which was not remedied in spite of vocal objection raised on behalf of the defence. The prosecution by this application wanted to plug that lacuna at the late stage of the appeal. The prosecution cannot be allowed to steal a march on the accused in such a manner. No authority of our High Court covering this point was cited before me at the bar. The decisions referred in Jasoda Nandan Mukherjee v. The State 1971 Cri LJ 1332 (Cal.), Kashmira Singh v. State AIR 1965 J & K 37 : 1965 (1) Cri LJ 554 and Division Bench decision in State of Orissa v. Pichika Parvatisam : AIR1963Ori58 cover the point directly in issue in this case. These judgments were cited before the learned Additional Sessions Judge also. But he erroneously formed a view that these were not attracted for application to this case. The facts in all these judgments were that the witnesses who were material for the decision of the case had not been examined before the trial Court. In those cases applications for additional evidence were declined. The case in hand is weaker than the above referred case because in this case the prosecution wants to improve the evidence which it had already examined. The application under Section 428, Criminal Procedure Code, did not deserve to be allowed in this case.
4. The order of the learned Additional Sessions Judge, Ferozepur, under revision, allowing the application for additional evidence being erroneous is set aside and the case is sent back to Shri Aftab Singh Bakshi for deciding on merit.