The appellate court's remand for fresh evidence in an appeal by accused was inconsistent with established legal principles.

1. This Revision Petition has been filed challenging the judgment in Crl.A. No.119/2008 dated the 27.11.2014 on the file of the Additional Sessions Court VIII, Ernakulam (for short 'the appellate court').

2. The revision petitioners are the accused Nos.2 and 3 in C.C.No.796/1997 on the file of the Judicial 1st Class Magistrate Court - II, Kochi (for short 'the trial court'). They along with the 1st accused were tried for the offence punishable under S.267(A), 28(B) of the Drugs and Cosmetics Act .

3. The 1st accused is the proprietor of M/s.Unisan Pharmaceuticals engaged in the manufacture and sale of drugs. The 2nd accused is a firm carrying out distribution of drugs and the 3rd accused is the Managing Director of the 2nd accused firm.

4. The prosecution case in short is that the accused sold the banned drug namely Mexaquin tablets MX9611 and thereby committed the offence.

5. All the accused appeared at the trial court. The charge was framed against them u/s.26(A), 28(B) of the Drugs and Cosmetics Act . The charge of the above was explained to them and they pleaded not guilty.

6. On the side of the prosecution PW1 was examined and Exts.P1 to P20 were marked. No defence evidence was adduced.

7. After the trial, the trial court found all the accused guilty u/s.28(B) of the Drugs and Cosmetics Act . The 1st and 3rd accused were convicted and sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.5,000/- each, in default to suffer simple imprisonment for one month. The 2nd accused was convicted and sentenced to pay fine of Rs.5,000/-. Challenging the said conviction and sentence, the petitioners preferred Crl.A.119/2008 at the appellate court and the 1st accused preferred Crl.A.122/2008. The appellate court after hearing both sides, allowed the appeal, set aside the conviction and sentence and remanded the case to the court below to afford an opportunity to the complainant to adduce evidence afresh. The accused Nos.2 and 3 challenged the said order of remand as well as the order of conviction and sentence passed by the trial court in this revision petition.

8. I have heard Sri.S.Ananthakrishnan, the learned counsel for the revision petitioners and Sri.Sangeetha Raj, the learned Public Prosecutor.

9. The appellate court found that the conviction passed by the trial court was based on the documentary evidence which were inadmissible in law. According to the prosecution, the drugs in question were purchased from the 2nd accused firm, who in turn purchased from the 1st accused manufacturer. The entire documents relating to the purchase of drugs were seized by the police during the investigation. However, the prosecution marked and relied on only the photocopies of those documents. Exts.P4 to P20 documents relied on by the trial court are photocopies. It is not a case where the originals are not available. Hence, the photocopies cannot be admitted in evidence even as secondary evidence. The appellate court correctly found that the trial court committed illegality in convicting the accused on the basis of photocopies of the documents which were inadmissible in law. However, the appellate court found that an opportunity has to be given to the complainant to adduce fresh evidence and accordingly remanded the case to the trial court.

10. The learned counsel for the revision petitioners, Sri.S.Ananthakrishnan submitted that an appeal filed by the accused cannot be remanded to give an opportunity to the prosecution to adduce further evidence to fill up its own lacuna. The learned counsel relied on the decision of this Court in P.Mammadkutty and Others v. Stat