V. Khalid, J.
1. The revision petitioner was the accused in C. C. No. 327 of 1976 on the file of the Sub-Divisional Judicial Magistrate, Kunnamkulam, who was convicted Under Section 7(1) read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1955(for short the Act) read with Rule 44(b) of the Prevention of Food Adulteration Rules, 1955. He was sentenced to undergo simple imprisonment for three months and to pay a' fine of Rs, 500 with a default clause. The prosecution case was that on 25-5-1976 at 8 A. M. the Food Inspector of Kunnamkulam Municipality purchased 675 milli-litres of goat's milk from the petitioner. It was found on analysis to contain 34% of added water and that it did not conform to the standard prescribed for goat's milk under the Rules. The petitioner filed an appeal before the Sessions Judge of Tri-chur. In the course of the judgment the learned Judge found that there was no strict compliance with Section 13(2) of the Act. The prosecution filed an application Under Section 311 of the Cr.P.C. to permit them to adduce additional evidence. The learned Sessions Judge allowed this application and directed the Magistrate to take additional evidence exercising powers Under Section 391, Cr.P.C. The learned Magistrate took evidence and returned the files with the evidence so recorded but also with the finding that Section 13(2) had been complied with. After that the learned Sessions Judge dismissed the appeal confirming the conviction and sentence. Hence this revision.
2. The facts are not in dispute. Crl. M. P. No. 344 of 1978 is the application filed by the Public Prosecutor Under Section 311 of the Cr.P.C. That was disposed of by the learned Sessions Judge by his order dated 14th Nov., 1978. The non-compliance with Section 13(2) of the Act in this case was the absence of evidence that the report of the public analyst was immediately communicated to the accused. The public prosecutor's submission based on Section 114 of the Evidence Act that a presumption should be drawn that all official acts have been done properly, was repelled by the learned Judge and he held that evidence on the point was absolutely necessary for a just decision of the case. The two documents produced at the appellate stage were admitted in evidence. The learned Judge passed another order on the same date under the following circumstances. The admission cf additional documents in evidence was opposed by the accused not only on the ground that the evidence supplied by those documents was not admissible at the appellate stage but also since their genuineness was disputed. Therefore, the learned Judge directed the Court below to allow the prosecution and the defence to let in further evidence on this aspect and submit its finding regarding the service of notice and the report of the public analyst. The lower Court was directed to consider whether there had been due compliance with Section 13(2) of the Act. The tperative portion of the order reads as follows;-
The records will be transmitted to the lower Court for the purpose of taking additional evidence. The findings should be submitted to this Court within a period of one month from today.
The matter went back to the trial Magistrate, He took the matter on file as M. P. No. 2478 of 1978 in C. C. No. 327 of 1976 issued notice to the parties, examined P.W. 3 to prove Exts. P7 to P9 and passed a considered order on 1-1-1979. The point for consideration formulated by the Magistrate was whether there was reliable and legal evidence to come to the finding that the accused was given the copy of Ext. P5 report and also the notice by the local (Health) authority as contemplated Under Section 13(2) of the Act. In paragraph 6 this point was considered and a decision was rendered as follows:
Therefore, it is clear from the facts discussed above that the Local Health Authority had issued notice to the accused and also sent copy of Ext. P5 report to him by registered post after the institution of the complaint and hence I find that he had complied with the provisions contained in Section 13(2) of the Prevention of Food Adulteration Act.
and wound up by saying 'that the entire case records will be submitted before the Sessions Court as directed'. On receipt of this the learned Sessions Judge passed the judgment under revision. Para 3 of the judgment reads as follows:
The point: Originally the appellant had raised a contention that there was no proper compliance of Section 13(2) of the Act, as the copy of the Analyst's report was not sent to him by registered post immediately on receipt of the same by the Local Health Authority. The acknowledgment purported to have been signed by the accused was produced in appeal. They were admitted in evidence and the case was remanded to the lower Court for evidence on that matter. The lower Court after examining the parties found that there was service of the report as requir-i ed by Section 13(2) of the Act.
The appellate judgment from para. 4 onwards discusses the law on the non-compliance with Section 10 (7) of the Act. I say this designedly for the reason that apart; from what is stated in para. 3 the judgment under revision does not contain any independent discussion about the evidence admitted by the trial Magistrate after the case was sent back to him.
3. It is necessary to note that the petitioner did not challenge the order of the Sessions Judge dated 14-11-1978 when he sent back the case to the Magistrate for the purpose of taking additional evidence and to return a finding. The petitioner's counsel attempts now to question the correctness and propriety of that order in this revision. It may not be permissible to allow him to do so. He could have challenged that order by moving this Court if a revision would lie against it or Under Section 482, Cr.P.C. Not having done so an attack against that order at this stage will not be entertained, The said direction by the Sessions Judge is a patent mistake, The Criminal Procedure Code does not contain a provision similar to Order I Rule 25, C. P. C. which enables the appellate Court to call for a finding. A trial Court becomes functus officxo once the case before it ends either in conviction or acquittal. A reconsideration of the evidence in the case becomes permissible only when it gets seisin of the case on retrial on orders of a higher Court.
4. Section 391 of the Criminal P. C. enables the appellate Court to take additional evidence itself or direct it to be taken by a Magistrate after recording its reasons. I read the section for appropriate appreciation of the contentions raised before me:
391(1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate.
(2) When; the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal,
(3) The accused or his pleader shall have the right to be present when the additional evidence is taken.
(4) The taking of evidence under this Section shall be subject to the provisions of Chapter XXIII, as if it were an enquiry.
This section enables the Court that takes additional evidence to certify such evidence to the appellate Court. After this certification it is the appellate Court that has to proceed to dispose of the appeal. A strange thing has happened in this case. The learned Sessions Judge after receipt of the records from the Magistrate along with the additional evidence and his finding did not independently consider the additional evidence so taken but incorporated the finding of the Magistrate in Para, 3 of the judgment. This is a complete abdication of its power by the appellate Court. Consideration of the additional evidence is permissible only by the appellate Court. The function of the Court that records evidence is only to certify such evidence as mentioned above. Here the appellate Court has delegated its functions to the Magistrate which is clearly illegal.
5. In Rajendran Nair v. State of Kerala, 1978 Ker LT 625, Poti, J., as he then was, had to consider the scope of Section 391, Cr.P.C. I read the following to emphasise how the learned Judge understood the scope of Section 391:
What is contemplated Under Section 391 is not a remand to the Magistrate (in the case of High Court to the Sessions Court or to the Magistrate) for the purpose of fresh disposal after taking evidence. Section 391 obliges the appellate Court to consider the evidence so taken irrespective of the Court which took such additional evidence, Therefore in exercise of the power Under Section 391 the appellate Court cannot direct the trial Court to dispose of the case after taking fresh evidence even assuming it is dissatisfied with the evidence on record and finds that in the interest of justice fresh evidence must be allowed to be adduced. Such a procedure would not be warranted by Section 386 of the Code in the case of an appeal against the conviction. Hence the learned Sessions Judge would be in error in directing the trial Magistrate to take fresh evidence and to dispose of the case after taking such evidence. That is what has been done. The view that I have expressed here is in agreement with the views expressed by my learned Brothers Khalid J. in Crl. R. P. No. 371 of 1975 and Kader, J. in Cr. R. P. No, 54 of 1977.
It is clear that the appellate Court cannot in exercise of the powers under Sec-J tion 391 direct the trial Court to take evidence and dispose of the case. By, parity of resaoning the appellate Court] cannot in exercise of the powers Under Section 391 direct the trial Magistrate to record a finding on the evidence so taken. That is the special discretion of the appellate Court Under Section 391, Cr.P.C. In Kesavan Nair v. State of Kerala, 1979 Ker LT 635, Kader, J. also considered the scope and ambit of Section 391, Cr, P. C. and observed that the power to take additional evidence should not be used as a disguise for a retrial nor should be used to direct fresh disposal by the trial Court. Additional evidence should be allowed only on the appellate Court being satisfied that requirements of justice dictated such evidence. I respectfully agree. The learned Sessions Judge was, therefore, in error in directing the trial Court for recording a finding on the evidence directed to be taken Under Section 391.
6. There is a more serious error committed by the learned Sessions Judge. I have quoted paragraph 3 of the judgment under revision. I have already indicated that this is the only portion of the judgment where the additional evidence taken by the Magistrate was discussed. The learned Judge has endorsed the finding returned by the lower Court regarding the requirement of Section 13(2) of the Act. The judgment does not contain a single sentence by way of discussion of the additional evidence adduced. Therefore the judgment does not contain an independent finding by the appellate Court regarding the additional evidence. Section 391 obliges the appellate Court to consider the evidence so taken irrespective of the fact whether the evidence was taken by itself or by the trial Court. The judgment :or this reason suffers from a serious infirmity which cannot be cured.
7. The only point that survives for consideration is whether I should send back the case again to the learned Sessions Judge for entering an independent finding on the evidence made available now. The case was started as early as in 1976. Three illegalities have been committed. At the original trial Section 13(2) of the Act was not strictly complied with and at the appellate stage Section 391 was wrongly applied and a finding was called for. The trial Magistrate after taking evidence entered a finding himself: The Sessions Judge endorsed that finding without any independent discussion. In these peculiar circumstances of the case I hold that the petitioner is entitled to the benefit of the defect in the prosecution case in not complying with Section 13(2) of the Act. To send back the case to the appellate Court for an independent finding under these circumstances will not advance interest of justice. In my judgment, the prosecution has not proved its case strictly in conformity with the rules and beyond reasonable doubt. I hold that the petitioner is entitled to the benefit of doubt.
8. In the result, I quash the conviction and sentence entered against the petitioner and allow this criminal revision petition.