SUBRAMANIAM GOUNDER Vs. STATE

JUDGEMENT

(1.) THE revision petitioner herein and another were accused of offences punishable under Section 61 (a) of the Tamil Nadu Excise Act (in C. C, No. 1911/1973 on the file of the Sub-Magistrate, Villupuram. The trial Court, after taking evidence in this case, found the petitioner and the other accused viz. , one Lakshmanasha guilty of the offences with which they were charged and sentenced them each to undergo rigorous imprisonment for four months.

(2.) THE prosecution case is that on 8-8-1973, at about 4. 30 P. M. Shanmugam (P. W. 1), the Inspector of Police (Excise), Valavanur, checked the car bearing Registration No. MEQ 3051 at Kandamangalam check-post and found accused 1 sitting on the Driver's seat. The other accused viz. Lakshmanasha was by his side. The other persons viz. , one Krishnaraju and one Shankar, who were also found sitting on the rear seats, were juveniles and therefore the case as against them was split up and tried separately in C. C. 2844 of 1973. On search, P. W. 1 noticed one case containing 48 bottles (quartersize) as Mc Dowell Brandy with the Company's seals intact at the foot of accused 2 between the dash board and the front seat. He also found four cases each containing 48 quartersize Mc Dowell brandy bottles with the company's seal intact on the rear seat Five more cases, each containing 48 Quarter-size Mc Dowell brandy bottles with company's seal intact, were found in the dicky. Exs. P-1 to P. 7, the cash bills, cinema tickets and other records, were seized under the mahazar Ex. P. 8. The accused were arrested and finally charge-sheet was filed by the police after investigation. The prosecution has examined three witnesses on their side to prove their case. As already pointed out, the lower Court, accepting their evidence, found the charges to have been proved and convicted them thereunder. Against their conviction both the accused 1 and 2 preferred C. A. 7 of 1974 before the District Magistrate (J) Cuddalore. On 11-2-1974 the learned Assistant Public Prosecutor No. II, Cuddalore, has filed a memo under Section 428, Cr. P. C. , praying that M. O. 2 series (ten cases containing 480 quarter-size Mc Dowell brandy bottles) in the instant case might be sent for chemical analysis, since it was challenged by the defence that the contents of the said bottles were not liquor. The learned District Magistrate (J), after hearing both the parties has passed an order in the abovesaid petition Cri. M. P. No. 93 of 1974, allowing it and directing M. O. 2 series to be sent for chemical analysis. As against the said order passed by the learned District Magistrate in Cr. M. P. No. 93 of 1974, this revision petition has been filed by the petitioner on the ground that the lower appellate Court has seriously erred in the law in allowing the application filed by the prosecution.

(3.) MR. G. Krishnan, appearing for the petitioner, placing his reliance on a series of decisions, very emphatically argues that taking additional evidence in the instant case amounts to a re-investigation into the case and that any evidence procured after such re-investigation would enable the prosecution to fill up the lacuna already left by the prosecution. Mr. Chandrasekharan, appearing for the Public Prosecutor, contends that under Section 428 Cr. P. C. , the Court is given a wide power to take additional evidence in the interests of justice and as such the impugned order cannot be challenged.