1. The petitioner was tried under S. 15, Act 8 of 1899. It is a summons case but a charge was framed that petitioner had either sold 31 cans of dangerous petroleum to an unlicensed person, or had transported the same cans through that person without a pass, and therefore, he had committed an offence under S. 15(c) of the Act.
2. The offence under S. 15(c) is breaking any condition contained in a license under the Act. The lower Court found the accused guilty under S. 15(c) of having sold 31 cans to an unlicensed person, which must mean that selling to an unlicensed person contravenes some condition of his license.
3. The license was never proved, and, assuming that could be a remediable omission, this Court has been unable to discover from the rules what condition in what license would have been contravened.
4. The prosecution, therefore, entirely failed to make out its case in the Court of trial.
5. The learned Sessions Judge came to the same conclusion, observing quite correctly that upon the essential points of the case there is neither evidence nor finding, and he could not uphold the conviction. He considered, however, that the proper course was to order a retrial. Here it must be found that the learned Judge exceeded his proper function. In certain circumstances he can no doubt order a retrial under Section 423 of the Cr PC, but hardly where the prosecution has hopelessly broken down in every respect, so as to enable the prosecutor to substantiate some new charge against the accused or to produce evidence which might easily have been produced at the first trial. It is rather for supplying formal defects that an appellate Court orders retrial: see P. Varadarajulu Naidu…(Accused) v. King-Emperor* . [1919] 42 Mad. 885. The petition is allowed and the petitioner acquitted. The fine will be refunded if that has not been done. [Ed the case adds nothing to 42 Mad. 885.]
P.R.S/V.S
6. Petition allowed.