ORDER
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 insectides 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/- 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 abovesaid 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 prosecution, it is the duty of the court to render necessary assistance to the prosecution and summon the witness so that the prosecution may not suffer on technical grounds. It is to be stated that A-5 company is a manufacturer of insecticides. If really the insecticides is misbranded within the meaning of S. 3(k)(i) of the Insecticides Act 1968, the company and the officers of the company who are responsible for the manufacture, distribution and sale of the said product cannot be allowed to go scot-free on merely technical grounds. In the letter Ex. P-16 A-2 stated that A-5 is an International Company. Such huge organisations, which try to sell adulterated or misbranded articles in market to the detriment of the general public cannot be allowed to escape punishment on mere technicalities.'
Ultimately, the appellate court remanded the matter to the trial court for fresh trial against A-5 to A-8 only giving some directions. It is against that order, the present revision is filed by A-3 to A-8.
6. It is contended on behalf of the petitioners that the prosecution cannot be allowed to fill in the lacunas in its case by ordering retrial of the case and that, therefore, the order of remand, passed by the learned Additional Sessions Judge ordering retrial is illegal and unsustainable under law.
7. It is a fact that in the trial court the prosecution filed a petition on 26-6-1990 to recall P.W. 3 to prove certain documents just before the closure of the case by the Magistrate. It is also noticed by the learned Addl. Sessions Judge that on 8-3-1990 i.e. earlier to the petition filed on 26-6-90 the prosecution filed a petition requesting the trial court to issue summons to one analyst by name Ramana Reddi and also to summon another witness by name S. V. Sastri and that the trial court ordered issue of summons only to the said Sastri and also that no reasons were given in the order for not summoning the Analyst who is stated to be a material witness for the prosecution. It is also observed by the appellate Court that the trial Court did not mention in its order that no summons need be issued to the analyst and that the court was not inclined to issue summons to the analyst. It is also a fact, that all the witnesses sought to be summoned were not summoned for examination eventhough the prosecution made a specific request in that behalf. The appellate court has taken all these aspects into consideration and felt that prejudice was caused to the prosecution is not allowing the prosecution to examine the witnesses in support of its case and remanded the matter for retrial. When the appellate court comes to the conclusion that the 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 this revision cannot be termed as one passed only to given an opportunity to the prosecution to fill in the lacunas in its case to the disadvantage of the accused.
8. The learned counsel for the petitioners relied on the following decisions to substantiate his contention that retrial should not be ordered only to fill in lacunas in the prosecution case :
1. Ukha Kilhe v. State of Maharashtra (1) AIR 1963 SC 1531 : (1963 (1) Cri LJ 418.
2. Akalu Ahir v. Ramdeo Ram (2) : 1973CriLJ1404 .
3. Bir Singh v. State of U.P. (3) : 1978CriLJ177a .
4. Sailendra Nath v. State (4) 1984 Crl. LJ 1096 and
5. Nemai Adak v. State (5) : AIR1965Cal89 .
9. In the above decisions, the principle laid down is that retrial cannot be ordered merely to enable the prosecution to adduce evidence or to fill in lacunas its case. The said decisions are inapplicable to the facts of this case though there is no quarrel with the proposition laid down in those judgments. The case on hand is a different one. Here in spite of the request by the prosecution to summon some witnesses the trial court failed to consider the same. It is well settled proposition that only in order to fill in lacunae in prosecution case or to give an opportunity to the prosecution to adduce evidence (in cases where the prosecution failed to adduce such evidence despite affording a reasonable and sufficient opportunity at the first opportunity), retrial cannot be ordered. Here the prosecution was not given the opportunity to prove its case. This is a case where the offences of adulteration and misbranding of fertilizer which concerns with the human lives are involved. The trial court did not give sufficient opportunity to the prosecution, Moreover the prosecution was diligent before the trial court and sought for issue of summons to certain witnesses. When due opportunity was not given to the prosecution to establish its case and when the same was noticed by the appellate court, it is the duty of the appellate Court to take into consideration that aspect and pass appropriate orders. It is the duty of the court to render assistance to the prosecution to prove its case and to see that case should not suffer on mere technical grounds. Each case has to be decided on its own facts and circumstances. When an appellate court passes an order taking into consideration all the aspects of the matter, ordinarily the High Court will not interfere with the same while exercising its revisional powers. Therefore, the above cited decisions are inapplicable to the facts of this particular case. The order of retrial in this case cannot be termed as one passed only to fill in lacunae in the prosecution case, or to allow the prosecution to adduce additional evidence. Merely because the prosecution was allowed to examine the material witness 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 lacunae its case.
10. For the aforesaid reasons, the order under revision is perfectly justified. The revision fails and is accordingly dismissed.
11. Revision dismissed.