IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 1ST DECEMBER 2009 / 10TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 3715 of 2009() ------------------------------ CRA.350/2008 of ADDL.SESSIONS COURT (ADHOC)III, MANJERI CC.796/2005 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PERINTHALMANNA .................... REVN. PETITIONER: --------------------- P.P.HARIS AGED 36 YEARS, S/O.USMAN, PANTHAL PARAMBIL HOUSE, KOLATHUR.P.O., ANGADIPPURAM VIA, MALAPPURAM DISTRICT. BY ADV. SRI.P.VIJAYA BHANU SRI.P.VENUGOPAL (1086/92) RESPONDENTS: --------------- 1. FOOD INSPECTOR, PONANI CIRCLE, CIVIL STATION, PONANI NAGARAM, MALAPPURAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.RITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 01/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ------------------------------- Crl.R.P.No.3715 of 2009 -------------------------------- Dated this the 1st day of December, 2009 ORDER The revision petitioner along with 4 others were prosecuted by the Food Inspector, Ponani Circle alleging offences under Sections.2(ia)(a), 7(i)(v) and Rule 5, Appendix A.17.01 read with section 16(1) (a) of the Prevention of Food Adulteration Act. The revision petitioner is the first accused. After trial, the other accused were acquitted. The revision petitioner was found guilty. He preferred Criminal Appeal No.350 of 2008 before the Sessions Judge, Manjeri. The Additional Sessions Judge (Adhoc-III), Manjeri by judgment dated 31/10/2009 set aside the conviction and sentence. The case was remanded to the trial court for fresh disposal after giving opportunity to the prosecution to prove Exts.P.23 to P26 which were marked in appeal subject to proof. Assailing the legality, correctness and propriety of the above order remanding the case to the trial court for fresh disposal, this revision petition was filed. 2. Inter alia the revision petitioner contented that there is violation of Section 13(2) of the Prevention of Food Adulteration Act and thus the trial and conviction were vitiated. Crl.R.P.No.3715 of 2009 2 The court below found the defence regarding violation of the other statutory provisions in favour of the prosecution. As regards the compliance of Section 13(2), no documents were produced during trial. First respondent produced the documents in appeal. The learned Additional Sessions Judge, while allowing the petition to receive additional evidence, marked the documents as Exts.P23 to 26 subject to proof. It is in that circumstance the case was remanded for fresh disposal after giving opportunity to the prosecution to prove those documents marked Exts.P.23 to P26 in appeal, after giving opportunity to the revision petitioner to challenge those documents. 3. According to the learned counsel for the revision petitioner, the remand of the case would highly prejudice the revision petitioner and it is only to fill up the lacuna and that the revision petitioner has to face re-trial and it would cause prejudice. It is pertinent to note that no re-trial is ordered by the appellate court. But only an opportunity was given to the first respondent to bring Exts.P.23 to P26 in evidence after giving Crl.R.P.No.3715 of 2009 3 opportunity to the revision petitioner to challenge the admissibility of the documents. No fresh trial or re-trial is ordered by the appellate court. Remand is only for the limited purpose. The learned counsel for the revision petitioner had also given reliance to the ratio of the decision reported in Gopakumar Vs. State of Kerala 2009(1)KLT 551 that in an appeal filed by the accused against conviction, appellate court is not competent to direct retrial of the accused either for an offence for which he was tried and acquitted or for an offence for which he was not tried or if the retrial would prejudice the accused. The facts of this case has no bearing with the reported case. No retrial is ordered for an offence for which he was acquitted or for an offence for which he was not tried. There is no prejudice to be caused to the revision petitioner for allowing the prosecution to bring on record the documents omitted to be produced for the reasons well explained by the first respondent. It is crucial to note that the very case of the prosecution is that there is strict compliance of Section 13(2). But, the failure was to produce the documents regarding the compliance. The documents were Crl.R.P.No.3715 of 2009 4 alleged to be in the possession of District Food Inspector who was under suspension at the time of evidence. So, for the reasons beyond the control of the prosecution, the documents could not be produced. Now the documents are received and marked in appeal. It is not a case of advancing a new case. But, a case of marking documents in proof of the averments in the complaint regarding the compliance of Section 13(2). Documents are not subsequently created to fill up the lacuna. The remand is for the limited purpose of examining additional witness to mark the document and to give opportunity to the revision petitioner to challenge the source. Therefore, no prejudice would be caused to the revision petitioner. The documents are necessary for a just disposal of the case. It is not a case of filling up lacuna. The revision petitioner is at liberty to challenge the veracity of the documents. In the above circumstance, I find no merit in the revision petition. 4. In the result, the revision petition is dismissed. It is further clarified that adducing of further evidence is only to the extent for proving Exts.P23 to P26 which are already marked by Crl.R.P.No.3715 of 2009 5 the appellate court and no further evidence shall be allowed from the side of the prosecution. The trial court shall dispose the case in accordance with the law as expeditiously as possible. P.S.GOPINATHAN, JUDGE skj.