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1991 Supreme(AP) 360
Andhra Pradesh High Court
Judges : G.RADHA KRISHNA RAO
Hoechest India Ltd. - Appellant
Versus
State OF A.P. - Respondent
Crl. R.P.No.463/91
Decided On : 09-05-91
Advocates Appeared :
Mr. V.P. Vashi,M.S.R. Subrahmanyam
Headnote:CRIMINAL PROCEDURE CODE, Section 386(b) (1) - INSECTICIDES ACT, 1968, Section 29 (1) (a) - Prosecution of accused for an offence under Section 29(1)(a) of Insecticides Act - Prosecution, filed an application in the Trial Court to include name of Analyst in the memo of evidence and issue summons to him - Trial Court without considering the application filed by prosecution convicted the accused - Accused preferred an appeal - Appellate Court remanding appeal fur retrial - Sustainable
Held : When the applicant Court comes to the conclusion that due opportunity was not given to the prosecution by the trial Court by non-application of its mind and especially so in this particular case where charges of adulteration and misbranding of pesticide are involved concerning the lives of people and the material witness sought to be Summoned was not summoned, the order of remand assailed in the revision cannot be termed as one passed only to given an opportunity to the prosecution to fill in the lacuna in its case to the disadvantage of the accused The order of retrial in this case cannot be termed as one passed only to fill in lacuna to the prosecution case, or to allow the prosecution to adduce additional evidence Merely because the prosecution was allowed to examine the material witnesses to prove its case, on the facts of that particular case, the said order cannot always be as one passed enabling the prosecution to fill in lacuna its case
( 1 ) THIS revision is filed against the judgment dated 26-4-1991 of the II Additional Sessions Judge, Kurnool in Crl. Appeal No. 109 of 1990 remanding back C. C. No. 38 of 1989 to the file of the Judicial First Class Magistrate, Nandikotkur for conducting fresh trial against A-5 to A-8 with a direction to permit the prosecution to summon the analysts who gave the reports, Exs. P-1 to P-10 and prove them in accordance with law and other directions.
( 2 ) THE brief facts are the following : On or about 30th March, 1989, the Joint Director of Agriculture, Kurnool filed a Criminal Complaint against the petitioners and five others for an offence punishable u/s. 29 (1) (a) of the Insecticides Act. 1968 alleging that a sample from batch No. 1392 of the insecticide called "thoidan 35% E. C. (Endosulphan)" was drawn from a dealer M/s. Sri Krishna Fertilizers, Jalakanur on 4-1-1988 by an insecticides Inspector. On analysis the said sample was found by the insecticide analyst to contain the active ingredient of endosulphan of 32. 15% against 35%. The insecticides analyst s report was challenged by the dealer and the sample was sent to the Central Insecticides Laboratory, Hyderabad for analysis which found that the endosulphan content in the said sample was 32. 87% as against the prescribed content of 35% On a writ petition filed by the petitioners, the proceedings against A-9 were quashed. The case against A-5 to A-8 was tried as a summons case under the provisions of Chapter XX of the Code Criminal Procedure. The prosecution closed the case after examining four witnesses. The accused were examined u/s. 313 Cr. P. C. arguments were heard for the prosecution and during the course of arguments on behalf of the defence side, the prosecution side filed an application on 26-6-1990 to recall P. W. 3 to prove Exs. P. 17 and P. 10. That application was allowed by a cryptic order saying "petition is allowed". After recalling P. W. 3, the petitioners were recalled again from their respective places for examination u/s. 313, Cr. P. C. On 23-11-1990 the trial court acquitted A-1 to A-4 and convicted A-5 to A-8 (petitioners-herein) and sentenced them to pay a fine of Rs. 2,000. 00 each, in default to suffer simple imprisonment for a period of two months. Aggrieved by the said convictions and sentences, the petitioners filed Cri. Appeal No. 109/90 in the Sessions Court, Kurnool.
( 3 ) THE learned II Additional Sessions Judge, Kurnool noticed that prior to the application dated 26-6-1990 to recall P. W. 3, earlier another application was filed on 8-3-1990. In that application dated 8-3-1990 it is stated that by oversight the same of the analyst by name M. V. Ramana Reddi was not cited as a witness in the memo of evidence filed and that he is a material witness for the prosecution. The trial court was requested to issue summons to the said Ramana Reddi and include him as an additional witness in the memo of evidence. It was also requested to issue summons to another witness by name S. V. Sastri who served show cause notices on the Distributor and others after receiving the Analyst s report.
( 4 ) IT was further noticed by the appellate court that the above said S. V. Sastri was later examined as P. W. 4 and that the lower court passed an order on 8-3-90 ordering issue of summons to Sastri only. The appellate Court observed that no reasons were given by the trial court in its order for not summoning the analyst concerned and that it is not even stated in the order that it is not even stated in the order that there is no mention in the order that there is no need to summon the analyst and the court was not inclined to issue summons to the analyst.
( 5 ) IT is appropriate to extract the relevant portion of the appellate judgment in para 5 thereof which contains the reasoning for remanding the case, It is in the following terms : "when the prosecution wanted to examine a material witness to prove crucial document on behalf of the pro
