A SIVANESAN Vs. STATE

JUDGEMENT

(1.) These two petitions have been filed to set aside the judgment dated 26-4-1996 in C.A. nos. 795 and 796 of 1987 passed by this Court and rehear the appeals.

(2.) In the affidavits filed by the petitioner, the contents which are common are as follows: The petitioner was the Court's accused in C.C. Nos. 79 and 80 of 1986 on the file of the X Metropolitan Magistrate, Madras, filed by the Drug Inspector under Section 18-A(i) read with 27(d)of the Drugs and Cosmetics Act in which he and other accused were acquitted, that now he comes to know that appeals were filed by the complainant before this Court in C. A. Nos. 795 and 796 of 1987 for which he did not receive any notice, that though the other accused, who received the notices, engaged a counsel to appear for them in this Court, somehow, he did not appear and therefore, this Court appointed an amicus curiae namely, Mr. E. J. Iyyappan, Advocate, and hearing his arguments, this Court convicted all the accused under Section 27(d) of the Drugs and Cosmetics Act, sentencing them to undergo rigorous imprisonment for six months and alsoto pay a fone of Rs. 5000/- and he did not know anything about the pendency of the appeals till he received the non-bailable warrant after the order of conviction. He has further stated that as he received no notice from the High Court with regard to the appeals filed against him, he did not engage a counsel, that under Section 385(1) Code of Criminal Procedure, it is mandatory for the Appellate Court to cause notice to the respondent but in this case, he has not been given the opportunity of hearing under Section 385(1) (4) Code of Criminal Procedure while the appellate Court reversed the order of acquittal and convicted him, which is against the principles of natural justice and also ultra vires the Article 21 of the Constitution of India, that as the judgment was passed against him in the appeals without giving opportunity of hearing him, the judgment is a nullity and the same has to be reheard after giving him an opportunity to place his defence.

(3.) The learned Government Advocate has resisted these petitions contending that as the judgment has been passed on merits, the Court, which passed the judgment, cannot set aside the same as the Court has no powers to alter or review the judgment under Section 362 Code of Criminal Procedure.