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.

3. 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 nalysis. 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. 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.

4. Now, the only question that is left before me is, what is the scope of Section 428 Cr.P.C and whether the lower appellate court is justified in sending the properties for chemical analysis for the purpose of procuring additional evidence to find out whether the contents of the bottles are liquor or not.

5. Before going into this question, it will be useful to cite a few decisions dealing with the burden on the part of the prosecution to scientifically prove that the articles seized come within the definition of the Prohibition Act so as to appreciate the scope of Section 428. In State of Andhra Pradesh v. Madda Rosenna, 1967 Mad LW Cri 193 : (1967 Cri LJ 1528), the Supreme Court, while dealing with a case of an offence under Section. 4(1)(a) of the Andhra Pradesh Prohibtion Act, held that when the accused denied the offence and stated in general terms that no arrack was seized from them, unless the prosecution proved the contravention of the provisions of the Act in question, it could not succeed in establishing the guilt of the accused. Merely trusting the small sense of the Prohibition officers and basing a conviction, on an opinion expressed by those officers under the circumstances, could not justify the conviction of the accused. Better proof, by a technical person, who has considered the matter from a scientific point of view, is not only desirable, but even necessary, to establish that the articles seized is one coming within the definition of liquor.

6. In Vella Pinna Thevar in re (1970 Mad LW Cri 123), K.N Mudaliyar, J. of our High Court held that in a case under Section 4(1)(a) of the Prohibition Act, the prosecution will have to establish that the article seized from the accused was liquor under Section 3(9) of the Act, Where the prosecution has failed to prove that what has been seized from the accused is liquor, the conviction under Section 4(1)(a) is liable to be set asides.

7. In Murugan, In re (1970 Mad LW Cri 233), Somasundram, J. of our High Court has reiterated the same position of law. It is unnecessary, in my opinion to multiply citations of this aspect. From the above decisions it is clear that the bounden duty of the prosecution is to establish the nature of the contents of the articles seized.

8. I find from the records that this case has been conducted by the learned Assistant Public Prosecutor No. II, who was in charge of this case before the trial Court. The trend of the cross examination by the defence Counsel appears that the prosecution has not sent the bottles for chemical analysis and no sufficient evidence on that aspect had been adduced. In spite of that, the prosecution has not chosen to file a memo before the trial court itself to have the contents of the bottles tested by chemical analysis. It is reprehensible on the part of the learned trial Magistrate in overlooking the decisions and holding that:—

“the question whether the prosecution has succeeded in establishing that an article seized in the particular case is liquor or not, must naturally depend on the facts of each case and the evidence adduced. Neither Excise Act prescribes any. particular mode, of proof.”

Further, he has held thus:

“From the mere absence of expert evidence it cannot be concluded that the prosecution has failed to prove that the article is liquor and in cases like this it is no doubt permissible to draw an inference under Section 114 of the Evidence. Act from some external features and circumstances like label, metalling caps with unbroken seals, etc.”

To strengthen his view, he states that the Excise officers can legitimately be considered as experts and their evidence regarding brandy may be accepted as expert testimony. He concludes his order by saying that the prosecution has proved that the bottles contained liquor. But, I find from the evidence of P.W 1 that he did not even open the bottles. So, I am not able to understand the conclusion of the Magistrate when he says that the evidence of the excise officers may be accepted as expert testimony. Therefore, the way in which the prosecution has let in evidence and the attitude in not sending the properties for chemical analysis, would go to show that the prosecution was of the view that it could prove its case even without sending the bottles for chemical analysis. If such attitude had been taken by the prosecution, it is for the prosecution to stand or fall on the evidence adduced by them. In cases of this nature, what the prosecution fails or omits, purposely or inadvertently, to take necessary evidence for the proof of a case, it should not be allowed to blow hot and cold from court to Court. When the prosecution is not vigilant about its own responsibilities, it is not for the Court to allow them to take additional evidence for the purpose of establishing their case in an appellate Court and put the accused to further harassment by protracting the proceedings under the guise of Section 428, Cr.P.C, especially when the defence in a way had at the earliest stage taken the plea that the contents of the bottles were not liquor. Section 428, Cr.P.C reads as follows:—

“(1) In dealing with any appeal under this chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons, and may either take such evidence itself, or direct it to be taken by a Magistrate, or, when the Appellate Court is a High Court, by a Court of Session or a Magistrate.

(2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the Appeal.

(3) Unless the Appellate Court otherwise directs, the accused or. his pleader shall be present when the additional evidence is taken but such evidence shall not be taken in the presence of jurors.

(4) The taking of evidence under this section shall be subject to the provisions of Chapter XXV as if it were an inquiry.” The corresponding provision in the new Code is Section 391. Except a slight change in sub-section (5) of Section 391, there is no difference between the two. In Rajeswar Prasad Misra v. State of West Bengal, AIR 1965 SC 1887 : (1965 (2) Cri LJ 817), while dealing with the scope of Section 428 by the appellate Court in taking additional evidence, the Supreme Court has observed as follows.—

“The power must be exercised sparingly and only in suitable cases, Once such action is justified, there is no restriction on the kind of evidence which may be received. It may be formal or substantial. It must, of course, not be received in such a way as to cause prejudice to the accused, as for example, it should not be received as a disguise for a retrial or to change the nature of the case against him. The order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it unless the requirements of justice dictate otherwise.”

In M.P Narayana Menon, In re (AIR 1925 Mad 106) : (25 Cri LJ 401) it has been held by our High Court that the section may not be enforced where the prosecution has failed to prove its case but supply a defect in formal proof. In the instant case, the prosecution, though it had an opportunity to adduce such evidence in proving the fact that the bottles contained liquor, has not availed of that opportunity in spite of the mode of defence at the trial stage. The object of Section 428 is not for the purpose of enabling the prosecution to produce evidence at a later stage which would have been easily produced at the first trial. It is not intended to enable the prosecution, having failed once, to have an opportunity of trying the case all over again. The above principle has been laid down in Hanumathappa, In re:, AIR 1937 Mad 181 : 38 Cri LJ 257). In that case, the accused was convicted under Section 58 of the Madras Abkari Act. He appealed to the Joint Magistrate, Hospet, who found that it had not been proved that the arrack was illicit. That was shortly the effect of his finding. Certain evidence was given with regard to the arrack; but the Magistrate said that the evidence did not establish that the arrack was illicit. This finding was approved by the High Court. But, the learned Joint Magistrate had also expressed the opinion that it was desirably that there should be fresh inquiry into the case and he therefore, set aside the finding of sentence of the Lower Court and remanded the case under Section 423(b)(i), Criminal Procedure Code, for a fresh enquiry presumably purporting to act under Section 428. On revision, our High Court held that the object of Section 428, Criminal Procedure Code is not ior the purpose of enabling the prosecution to produce evidence which could easily have been produced at the first trial. It was not to enable the prosecution, having failed once, to have an opportunity of trying the case all over again. Therefore, the High Court held that the offence under Section 58 of Madras Abkari Act was not proved by reason of failure to prove an essential evidence in support of it, and that the Magistrate could not make order for fresh evidence to try the case all over again.

9. As I have already discussed elaborately, the prosecution in this case cannot put forward the argument that the defence was unexpected or unforeseen. In Rajeswar Prasad Misra's case (AIR 1965 SC 1887) : (1965 (2) Cri LJ 817), while formulating the guidelines to the Courts in exercising their discretionary power under Section 428, the Supreme Court has stated—

“Since a wide discretion is conferred on appellate Courts, the limits of the Courts' jurisdiction must obviously be dictated by the exigency of the situation and fairplay and good sense appear to be the only safe guides”.

For the foregoing discussions, I am of the view that the order of the District Magistrate (J) in allowing the application filed by the prosecution to take further evidence by sending the properties for chemical analysis is tantamount to allowing the prosecution to re-investigate into the matter and adduce further evidence in support of its case, which it had failed consciously to do at the earliest stage.

10. Therefore, I set aside the order of the Lower Appellate Court and allow this revision petition. The Lower Appellate Court is directed to hear the appeal on its merits on the evidence already available on record, uninfluenced by any observations made by me in justification of this order. Petition allowed.