V SAMPANGIRAMAIAH Vs. GOVERNMENT OF MYSORE

JUDGEMENT

(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

(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.