THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR CRIMINAL REVISION CASE NO.1782 OF 2008 Date: 04-12-2009 Between: 1. M/s. Sai Bandage Industries, Near Ramalingeshwara Talkies, Suryapet, Nalgonda District, Rep. by Mr. P. Vijay. 2. Mr. P. Vijay, S/o.Lingaiah, Aged 35 years, Proprietor of M/s. Sai Bandage Industries, H. No.1-2-270/92/9, K.K. Road, Suryapet, Nalgonda District. - - - Petitioners And The State of A.P., Rep. by its Public Prosecutor, High Court of A.P., Hyderabad. - - - Respondent. THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR CRIMINAL REVISION CASE NO.1782 OF 2008 ORDER: This Criminal Revision has been filed challenging the judgment dated 16-10-2008 in Criminal Appeal No.149 of 2007 passed by the learned I Additional Sessions Judge, Mahabubnagar, whereby and where under retrial of the Criminal case has been ordered. The learned counsel for the petitioners relying on the judgment of a case between, Sailendra Nath Chatterjee Vs. the State[1] submitted that ordering retrial by the appellate Court is illegal. His main submission is that PW.1/The Drug Inspector has not filed any notification duly notifying the area under which he was authorized to discharge the duties and in the absence of any such notification, the entire proceedings become illegal and improper. The learned Additional Public Prosecutor did not dispute the legal position. The brief facts of the case are as follows : The petitioners herein are A- 1 and A-2 before the trial Court. The Drug Inspector, Mahabubnagar District area filed a complaint against the petitioners/A-1 and A-2 (Hereinafter referred as ‘A-1 and A-2’) under Section 32 of the Drugs and Cosmetics Act, 1940, for violation of Sections 18 (a) (i), 18 (c) 18-A, 18-B and Sections 24 and 22 (1) (CCA) punishable under sections 27(d) 27 (b) (ii), 28, 28-A, 28 and 22 (3) of Drugs and Cosmetics Act 1940. A-1 is M/s. Sai Bandage Industries near Ramalingeswara Talkies near Suryapet, Nalgonda District is a proprietary firm, A-2 is its proprietor. On 30-11-2000, the Drug Inspector inspected the surgical stores of the District Head Quarters Hospital, Mahabubnagar in the presence of PW.2/U. Rangaiah, pharmacist of the said store and lifted rolled bandages of 10 cm X 4 m size without any label of A-1 firm. The samples were sent to Government Analyst, Drugs control laboratory, Hyderabad and the remaining 387 dozens of 10 cm X 4 m size of rolled bandages were seized under Form 15. On 04-01-2001 the Drug Inspector issued notice under Section 18-A of the Act to PW.3 the then Medial Superintendent to disclose the name and address and other particulars of the persons from whom the said bandages were obtained. On 25-01-2000 he received a letter from PW.3 stating that those bandages were purchased from A-1 firm as per the instructions of the Commissioner of Andhra Pradesh Vaidhya Vidhana Parishad (Herebuinafter referred as ‘A.P.V.V.P.’). The copies of the necessary documents were furnished on 12- 02-2001. The Drug Inspector issued a notice under Section 18 (1), 18 (b) and 24 of the Act to A-1 firm to disclose the names and address of the person from whom the said bandages were obtained to furnish the records and to disclose the place where the said rolled bandages were manufactured. On 16-02- 2001, the Drug Inspector received statistical report under Form No.13 along with covering letter from the Government Analyst, Drugs Control Laboratory, Hyderabad, declaring that the said rolled bandages are not of standard quality for the reason that the sample does not meet the specification for rolled bandages as per Schedule F (ii) of the Act. After following the required procedure, the charge sheet was filed. In order to prove their case, the prosecution has examined PWs 1 to 5 and Exs. P1 to P36 and material objects Mos 1and 2 were marked. None were examined on behalf of the Accused but Exs. D-1 to D-4 were marked in their defence. The learned Judicial Magistrate of First Class, Mahabubnagar found the accused guilty and convicted them as under : “A-1 is sentenced to pay a fine of Rs.5,000/- in default A-2 its proprietor to suffer S.I. for a period of six months for the offences punishable under Section 27 (b) (ii) read with Section 18 (c) of the Act. A-2 is sentenced to undergo S.I. for a period of one year and to pay a fine of Rs.5,000/- only in default to suffer S.I. for a period of six months for the offence punishable under Section 27 (b) (ii) read with Section 18(c) of the Act which is the minimum punishment under the said Act. A-1 is further sentenced to pay a fine of Rs.1,000/- in default A-2 being its proprietor to suffer S.I. for a period of three months for the offences punishable under Section 27 (d) read with Section 18 (a) (i) of the Act. A-2 is further sentenced to undergo S.I. for a period of one year and to pay a fine of Rs.1,000/- in default to suffer S.I. for six months for the offence punishable under Section 27 (d) read with Section 18 (a) (1) of the Act. A-1 is further sentenced to pay a fine of Rs.500/- in default its proprietor A-2 to suffer S.I. for one month for the offence punishable under Section 28-A for violation of Section 18-B of the Act. A-2 is sentenced to undergo S.I. for one month and to pay a fine of Rs.500/- in default to suffer S.I. for one month for the offence punishable under Section 28-A of the Act for violation of Section 18-B of the Act. A-1 is further sentenced to pay a fine of Rs.1,000/- in default its proprietor A-2 to suffer S.I. for two months. A-2 is sentenced to undergo S.I. for six months and to pay a fine of Rs.1,000/- in default to suffer S.I. for a period of two months for the offence punishable under Section 22 (3) of the Act for violation of Section 22 (1) (CCA) of the Act. A-1 is further sentenced to pay a fine of Rs.1,000/- in default A-2 to suffer S.I. for three months. A-2 further sentenced to suffer S.I. for six months and also to pay a fine of Rs.1,000/- in default to suffer S.I. for three months under Section 22 (3) for violation of Section 24 of the Act. Total fine for A-1 is Rs.8,500/- and total fine for A-2 to pay is Rs.8,500/-. Grant total Rs.17,000/-. In the facts and circumstances of the case the substance of sentence of imprisonment of A-2 shall run concurrently”. Challenging the said judgment the petitioners herein preferred an appeal. Therefore, the main question that arises for consideration is whether PW.1/The Drug Inspector was competent to discharge the duties as Drug Inspector in Mahabubnagar District Area during the relevant time? The learned Sessions Judge observed as follows : “There may be a notification by the Government appointing the said analyst as much for the purpose of this area under the said Act but the prosecution did not file and prove any such official notification showing appointment of the said analyst for such purpose and that he had authority to analyze the said sample and submit report pertaining to the case of Mahabubnagar District. In the said decision Division Bench of Hon’ble Bombay High Court, held that the provisions of Section 20 of the Act are mandatory and thus, the State must publish in an Official Gazette the appointment of the Government Analyst specifying therein the area wherein Government Analyst can operate and also specifying therein the products with which the Government Analyst can test and analyze. Relying upon the said decision, the Hon’ble High Court of A.P. in the said Criminal Revision Case No.1121 of 2002 dated 06-04-2006 held that the provisions of Sections 20 and 21 of the Act have not been complied with and thus set aside the judgment of the first appellate Court. In such circumstances, I am convinced to order for retrial of the matter by virtue of powers under Section 386 (b) (1) of Cr.P.C”. Thus, the learned I Additional Sessions Judge, Mahabubnagar, ordered retrial of the Criminal case. Challenging the said order, this Revision has been filed. The point that arises for consideration is whether the order of the learned Sessions Judge, directing retrial is justified in the circumstances of the case? Section 386 of the Criminal Procedure Code, 1973 deals with the powers of the Appellate Court and empowers the Appellate Court to order retrial while passing judgment in Appeal from the order of acquittal or in an appeal from conviction. Section 386 (a) and (b) of the of Criminal Procedure Code, 1973 is read as follows : (a) In an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law ; (b) In an appeal from a conviction : - (i) Reverse the finding and sentence and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial ; or (ii) Alter the finding, maintaining the sentence ; or (iii) With or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same ; The question under what circumstances retrial can be ordered came up for consideration before the Honourable Apex Court in a case between Ukha Kolhe Vs. The State of Maharashtra.[2] Section 391 of the Cr.P.C. empowers the Appellate Court to take additional evidence. However, it is also settled law that additional evidence cannot be taken to fill up the lacunaes in prosecution case. Where the Court comes to a conclusion that the additional evidence is necessary and if additional evidence is not taken there would be failure of justice then the Appellate Court is empowered to take additional evidence. However, it is also settled law that the power has to be exercised sparingly and only in suitable cases. In this case the Appellate Court has not adopted the procedure prescribed under Section 391 of Cr.P.C. but remanded the case for retrial. When only certain G.Os. have to be marked ordering of retrial appears to be not justified. Retrial cannot be ordered to fill up the gaps in prosecution case. Even, in case of taking additional evidence the Court must see whether the prosecution or the accused had no opportunity to produce such additional evidence before the trial Court. When the prosecution or the accused having in possession of the additional evidence failed to produce such additional evidence then they cannot be permitted to fill up the gaps in their case. Only in exceptional cases where the prosecution or the accused for compelling reasons could not produce the evidence before the Trial Court or where they had no knowledge about the existence of such additional evidence and when they had come to know about additional evidence after the closure of the prosecution evidence then only in such exceptional circumstances the Court may permit the prosecution or the accused to adduce additional evidence. Coming to the facts of this Case, admittedly G.O.s authorizing PW.1/Drug Inspector for the Mahabubnagar District area has not been filed. This Court while dealing with the similar situation in case between M/s. Gaba Pharmaceuticals and another Vs. State of A.P. Represented by the Drug Inspector, Hyderabad, in Criminal Revision Case No. 1121 of 2002 vide its order dated 16th April, 2006 observed as follows : A perusal of Section 21 goes to show that the Government by notification in the Official Gazette appoint a person to be the Inspector for such area as may be assigned by the State Government Except Ex.P1, no other document is filed to show that PW.1 was duly appointed by the Government by issuing a notification in the Official Gazette for the purpose of taking samples in Koti zone. Ex.P1 is the notification issued by the Government appointing PW.1 as a Drug Inspector for the entire area i.e., he was initially appointed as Drug Inspector for the purpose of carrying out the objects in the Drugs and Cosmetics Act, however the Government has to issue a notification duly notifying the area under which the Inspector can discharge his duties. Since no such Gazette notification was placed before the Courts below, there is no G.O. notifying the area under which PW.1 could discharge his duties. Thus, admittedly in this case the relevant Gazette notifications have not been filed appointing PW.1 as the Drug Inspector for the purpose of carrying out the objects in the Drugs and Cosmetics Act to the Mahabubnagar District area. This is a lacunae in the prosecution case. No explanation has been given by the prosecution as to why they could not file the relevant G.O.s before the trial Court. No such notifications were also filed before the appellate Court. No petition as filed before appellate Court under Section 391 of Cr.P.C. to adduce additional evidence. The prosecution has not given explanation for not filing those notifications before the Courts below. In the circumstances order of retrial to fill up the gaps in the prosecution case cannot sustain and accordingly, the impugned order is set aside. Accordingly, the Criminal Revision Case is allowed. _____________________ B. CHANDRA KUMAR, J Date: 04-12-2009. DSH [1] 1984 Crl.L.J. 1036. [2] A.I.R. 1963 Supreme Court 1531.