JUDGMENTBY: MOHAMED AZMI SCJ

(delivering the Judgment of the Court): The appellant was convicted by Mustapha J. at the High Court Kangar for trafficking in 15,603 grammes of raw opium in contravention of section 39B(1)(a) of the Dangerous Drugs Act 1952 (Revised 1980) and sentenced to death under section 39B(2) of the same Act. His appeal to the court is against both conviction and sentence, but during argument the only point raised is whether the trial judge had erred in law in entertaining the application under section 425 Criminal Procedure Code (C.P.C.) of the Deputy Public Prosecutor during the course of the prosecution case, to send nine exhibits found in the possession of the appellant and marked as Exhibits P7 to P15 to the Chemistry Department for further examination and the calling of fresh evidence on the said exhibits.

The main issue for determination is the scope of the provision of section 425 C.P.C. which provides: --

"Any Court may at any stage of any inquiry, trial or other proceeding

under this Code summon any person as a witness, or examine any person

in attendance though not summoned as a witness, or recall and

re-examine any person already examined, and the Court shall summon and

examine or recall and re-examine any such person if his evidence

appears to it essential to the just decision of the case."

For this purpose, section 540 Indian Criminal Procedure Code 1898 is in pari materia with our section 425. From the commentaries on the Code of Criminal Procedure 1898 by Chitaley & Rao, Vol. IV (5th Edition) the scope of this section is to enable and in certain circumstances to impose on the court the duty of summoning witnesses who would not otherwise be brought before the court. The section consists of two parts, the first giving a discretionary power to the court under which it may (1) summon any person as a witness or (2) examine any witness in attendance, though not summoned as a witness or (3) re-call or re-examine any person already examined. The second part of the section imposes an obligation on the court to summon and examine or re-call and re-examine any such person if his evidence appears essential to the just decision of the case. The section is intended to enable the court to get at the truth and to come to a proper conclusion in the matter under inquiry or trial. It is not limited to witnesses whom the court examines on its own behalf but also applies to witnesses for the prosecution as well as witnesses for the defence. Hence, the defence as well as the prosecution may be allowed to adduce additional evidence under this section. The object of the section is just as much the prevention of escape of a guilty person through some carelessness of the prosecution or the Magistrate as the vindication of the innocence of the person wrongly accused owing to the carelessness and ignorance of one party. If there is the apprehension of justice failing by an erroneous acquittal or by an erroneous conviction the court would be justified in exercising its discretion in calling for additional evidence under this section. Where the court is of the opinion that the evidence of certain witnesses is essential to the just decision of the case, it is bound to summon them, and for this purpose the trial can be adjourned. A just decision under this section does not mean a decision in favour of the defence (see Rengaswami Naickers case [1954] Cr LJ 123). Thus, it would not be an improper exercise of the power merely because the evidence taken supports the case of the prosecution and not that of the accused. In our view, by its very nature the discretion to be exercised under section 425 C.P.C. depends on the facts of each case -- the main consideration being the essentiality of the additional evidence to a just decision of the case.

In the State v Kishan Dayal [1952] Cr LJ 1128 the respondent was charged for criminal breach of trust and falsification of accounts under se

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