JUDGMENT : Panigrahi, C.J. - The two Petitioners have been convicted u/s 7 of Act XXIV of 1947 Essential Supplies (Temporary Powers) Act and each of them has been sentenced to pay a fine of Rs. 100/- in default to undergo rigorous imprisonment for one month each. The cloths seized have also been directed to be forfeited to Government. The case against them was that they had a licence to deal in cloth in Khulna but they were actually carrying on their business at Manjuri Road market. This was discovered on 17-1-1951 by the Supervisor of Supplies and a prosecution report was filed in due course. The plea of the accused was that they were actually holding licenses for dealing in cloth at Manjury Road. In support of that plea they produced a number of documents but the Sub-Divisional Magistrate, Bhadrak who tried the case did not believe that story. 2. In revision Mr. Das Gupta contended that the trial of the Petitioner is illegal since they had been summarily tried by the Sub-Divisional Magistrate without any application on behalf of the prosecution to that effect, Section 12 of the Essential Supplies (Temporary Powers) Act empowers a Magistrate who is competent try in a summary way the offences specified in Sub-section (1) of Section 260 (Code of Criminal Procedure) to try in accordance with the provisions contained in Sections 262 to 265 of the said Code any offence punishable under the Essential Supplies Act on application being made in his behalf by the prosecution. The language of this section does not in any way indicate that the application to be made on behalf of the prosecution is to be in writing. All that is needed some application which may be either written or oral, to be made on behalf of the prosecution in order to give jurisdiction to the Magistrate to try an offence under this Act summarily. The order sheet does not show that any such application was made on behalf of the prosecution. In his order dated 13-12-51 the Magistrate noted: "Case tried summarily" without giving any indication as to whether he adopted this procedure suo motu or on an application made by the prosecution. The order sheet does not show that any such application was made on behalf of the prosecution. In his order dated 13-12-51 the Magistrate noted: "Case tried summarily" without giving any indication as to whether he adopted this procedure suo motu or on an application made by the prosecution. It is of the essence of the jurisdiction to try summarily, that an application should be made and in the absence of anything indicating that such an application was made (either orally or in writing) the trial would be illegal. In support of this contention Mr. Das Gupta has referred me to the case reported in AIR 1949 All 84. That was a case which arose under the Defence of India Rules where a similar provision was made in Rule 130(4) of those Rules. Mr. Dag Gupta also invited my attention to another case reported in 48 Cri.L.J. 56 which was also a case under the Defence of India Rules (Rule No. 130). In both these cases, it was held that a case cannot be tried summarily unless an application has been made by the prosecution in their behalf. My attention has also been drawn to a decision of the Supreme Court in Nounit Rai v. Punjab State which has been referred to in the copy of the Essential Supplies and Control Orders brought out by the Federal Law Depot, Kashmere Gate, Delhi. Unfortunately the publisher does not give any reference to the number of the decision or the year in which it was decided apart from giving the parties names, so as to enable me bo get hold of the report. But at pages 40-41 of the publication, the publisher has quoted the observations of the Supreme Court made in that case which I reproduce below: It appear to us on hearing the learned Counsel on both sides that the trial held by the Sub-Divisional Magistrate has not been in conformity with the provisions of law and on this ground the Appellant is entitled to succeed. Section 7 of the Essential Supplies Act makes the violation of any order made u/s 3 of the Act an offence which is punishable with imprisonment for a term which may extend to three years or with fine or with both. Ordinarily such offences are not triable summarily u/s 260 of the Code of Criminal Procedure. Section 7 of the Essential Supplies Act makes the violation of any order made u/s 3 of the Act an offence which is punishable with imprisonment for a term which may extend to three years or with fine or with both. Ordinarily such offences are not triable summarily u/s 260 of the Code of Criminal Procedure. Section 12 of the Essential Supplies Act however makes a special provision under which any magistrate empowered u/s 260 Sub-section (1) of the Code of Criminal Procedure may try an offence under the Act summarily, provided an application for such trial is made by the prosecution. It is clear, therefore that the magistrate can decide to exercise the power of summer, trial only on an application made to that effect by the prosecution and not otherwise. In the present case, the contention of the Appellant is that no such application was made by the prosecution and this omission has vitiated the entire trial. It is admitted that there is no written application on Record and there is nothing also in the order sheet of the trying magistrate to indicate that any such application as contemplated by Section 12 was made either orally or in writing. The High Court had, in our opinion, no right in holding that it was for the accused to prove that no oral application in this behalf was made by the prosecution or that the rule of presumption regarding the regularly of official business would compel an inference that such an application was in fact made may be conceded that an oral application would satisfy the requirements of Section 12 of the Essential Supplies Act, but it would still be incumbent upon the trying magistrate to Record that fact in his order sheet so as to show that he has applied his mind to it before he assumed jurisdiction to try the case summarily. In view of the statement of law contained in these observations I have no option but to set aside the conviction of the Petitioners on the ground that the summary trial in this case is not warranted as the Records do not show that any application was made on behalf of the prosecution in the behalf. 3. In view of the statement of law contained in these observations I have no option but to set aside the conviction of the Petitioners on the ground that the summary trial in this case is not warranted as the Records do not show that any application was made on behalf of the prosecution in the behalf. 3. I would accordingly direct that the case should go back to the Sub-Divisional Magistrate, Bhadrak, in order that a fresh trial might be held in accordance with the provisions of law and disposed of accordingly. 4. The revision is allowed, the conviction of the Petitioners is set aside. The case will go back to the file of the Sub-Divisional Magistrate, Bhadrak, for retrial according to law in the light of the observations made above.