JUDGMENT : G.K. Misra, J. - The Petitioner has been convicted u/s 7(1)(a)(ii) of the Essential Commodities Act, 1955 (hereinafter referred to as the Act) and sentenced to undergo R.I. for ten days. 2. Prosecution case is that on 28-10-1905 the Petitioner sold 7 Kg. of superfine II rice at the rate of 88 paise per Kg. although the controlled price for the same was fixed at 77 paise. The Petitioner violated the provisions of the Orissa Rice Maximum Prices) Order, 1964 (hereinafter referred to as the Order). The defence plea was that the Petitioner sold the aforesaid class of rice to p.w.2 at the rate of 75 per Kg. The learned (Magistrate accepted the prosecution version. Against the order of conviction the criminal revision has been filed as the sentence of imprisonment being for 10 days no appeal lies u/s 12-A (3) of the Act. 3. The only point raised by Mr. Rao is that an offence punishable under the aforesaid section is (triable as) a warrant-case. In the summary trial, the procedure prescribed for the trial of summons-case and not for warrant-case was followed. The trial was vitiated add accordingly the order of conviction is illegal and must be set aside. The contention requires careful examination. 4. Section 3, Sub-section (1) of the Act lays down that if the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies' 'of any essential commodity or for securing their equitable distribution and availability at fair prices, it may, by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein. Sub-section (2)(c) prescribes that without prejudice to the generality of the powers conferred by Sub-section (1), an order made thereunder may provide for controlling the price at which any essential commodity may be bought or sold. 5. It is under the aforesaid provision the order was made. Clause (1) of the Order is to the effect that the maximum wholesale and retail prices of rice of fair average quality sold at any of the places specified in column (1) of schedule I for the, varieties specified in Schedule II shall not exceed the price specified in column (3) or column (4), as the case may be, of Schedule I. In column (1) of schedule I the names of places have been given. The Petitioner is alleged to have sold the rice in village Padwa. It is the common case of the parties that the village does not come within item (J) of column (1). 'It must therefor come under item (2) in column (1) of Schedule I which has prescribed the price for "any place" other than the places specified in item (1). Reference to column (4) shows that retail price for superfine II rice is fixed at 74 paise per Kg. (See Supply Department Notification No. 25424-S. dated 21-11-1964 published in Orissa Extraordinary Gazette No. 1689, Cuttack, dated 23-11-1964). The learned trial Court in its judgment wrongly referred to the maximum retail price of 77 paise mentioned against item (1) in column (1). This aspect of the matter should have been kept in view by the trial Magistrate. If the Petitioner was selling at a higher price than the one prescribed in the order, he would be clearly guilty of an offence u/s 7(1)(a)(ii) of the not which enacts that if any person contravences any order made u/s 3, he shall be punishable in the case of any other, not referred to in (1), with imprisonment for a term which may extend to three years and shall also be liable to fine. 6. Section 4(1)(w) of the Code of Criminal Procedure (hereinafter referred to as the Code) defines "warrant-case". It means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding one year. An offence u/s 7(1)(a)(ii) is punishable with a sentence of imprisonment for a term of three years and thus relates to a warrant-case. 7. The procedure for summary trial is prescribed in Chapter XXII of the Code. Section 262 of the Code runs thus- Sub-section (1)-In trials under this Chapter, the procedure prescribed for summons-cases shall be followed in summons-cases, and the procedure prescribed for warrant-case shall be followed in warrant-cases, except as hereinafter mentioned. The exceptions are provided in Section 262(2), Section 263 and Section 264 of the Code. Section 262(2) lays down that no sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under this Chapter. The exceptions are provided in Section 262(2), Section 263 and Section 264 of the Code. Section 262(2) lays down that no sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under this Chapter. Thus though u/s 7 of the Act the maximum substantive sentence is three years imprisonment, a sentence of imprisonment for a term exceeding three months cannot be imposed in case of a conviction if the case is tried under Chapter XXII. Similar provision has been made in Section 12-A (2) Proviso of the Act. It says that in the case of any conviction in a summary trial u/s 12-A, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year and this would be notwithstanding anything contained in the Code. Thus in summary trial, the maximum sentence that can be imposed by a Magistrate u/s 7(1)(a)(ii) of the Act is one year though the maximum sentence prescribed is three years with fine. 8. Section 263 of the Code runs thus- In cases where no appeal lies, the Magistrate or Bench of Magistrates need not record the evidence of the witnesses or frame a formal charge, but he or they shall enter in such form as the State Government may direct the following particulars: (a) the serial number; (b) the date of the commission of the offence; (c) the date of the report or complaint; (d) the name of the complainant (if any); (e) the name, percentage and residence of the accused; (f) the offence complained of and the offence (if any) proved, and in cases coming under Clause (d), Clause (e), Clause (f) or Clause (g) of Sub-section (1) of Section 260 the value of the property in respect of which the offence has been committed; (g) the plea of the accused and his examination (if any); (h) the finding, and, in the case of a conviction, a brief statement of the reasons therefore; (i) the sentence or other final order; and (j) the date on which the proceedings terminated. Section 414 of the Code prescribes that notwithstanding anything hereinbefore contained, there shall be no appeal by a convicted person in any case tried summarily in which a Magistrate empowered to act u/s 260 of the Code passes a sentence of fine not exceeding two hundred rupees only. Section 414 of the Code prescribes that notwithstanding anything hereinbefore contained, there shall be no appeal by a convicted person in any case tried summarily in which a Magistrate empowered to act u/s 260 of the Code passes a sentence of fine not exceeding two hundred rupees only. This is, however, subject to Section 12-A (3) of the Act prescribing that no appeal lies against a sentence of imprisonment not exceeding one month. 9. It was accordingly contended by the learned Standing Counsel at one stage that an offence u/s 7 of the Act, when tried summarily, is a summons-case. The very definition of a warrant-ease in Section 4(1)(w) of the Code repels such a contention. The character whether it is a warrant-case or a summons-case does not depend upon the ultimate sentence actually passed on conviction. The criterion, is with what sentence it is punishable. Even in a warrant case, where the maximum sentence is three years, the punishment by a Magistrate Fist Class may be for fifty rupees which is not appealable. On that basis it cannot be said that the offence does not relate to a warrant-case. As was observed in State Vs. C.K. Joseph the the applicability of Section 263 of the Code would not depend upon the eventual decisions in the case. Before the Magistrate proceeds to record evidence in the case, he must decide whether the case is one in which no appeal can possibly lie on conviction. It is to be noted that the expression "where no appeal lies" relates to cases of appeal from an order of conviction and not from an order of acquittal. 10. Section 12-A, Sub-section (3) of the Act runs thus- Notwithstanding anything to the contrary contained in the Code of Criminal Procedure, 1898, there shall be no appeal by a convicted person in any case tried summarily under this section in which the Magistrate passes a sentence of imprisonment not exceeding one month, or of fine not exceeding two thousand rupees, or both, whether or not any order of forfeiture of property or an order u/s 517 of the Code is made in addition to such sentence, but an appeal shall lie where any sentence of imprisonment or fine in excess of the aforesaid limits is passed by the Magistrate. Thus offences u/s 7 of the Act are appealable if a sentence of imprisonment exceeding one month is passed. Even though the offence u/s 7(1)(a)(ii) is a summons-case as the maximum sentence prescribed thereunder is imprisonment for a term which may extend to one year, the procedure prescribed u/s 263 of the Code is not applicable to it. In view of the special provisions of the Act, the offence u/s 7(1)(a)(i) is triable by warrant procedure though it is It summons-case. 11. Cases relating to offence u/s 7(1)(80) of the Act must accordingly be tried under the procedure prescribed in Section 264 of the Code which prescribes that in every case tried summarily by a Magistrate or Bench in which appeal lies, each Magistrate or Bench shall record the substance of the evidence and also the particulars mentioned in Section 263 of the Code and shall, before passing any sentence, record a judgment in the case. A There is an essential difference in the procedures prescribed in Sections 263 and 264 of the Code. While u/s 263 the Magistrate need not record the evidence of the witnesses or frame a formal charge, he is, however, bound to record the substance of the evidence and frame charge u/s 264. The present case must, therefore, be tried by the procedure prescribed u/s 264 of the Code. The particulars mentioned in Section 263 are also to be followed in observing the procedure u/s 264 12. It is the common case that no charge was framed and necessarily the Petitioner was not given opportunity for cross-examination of the prosecution witnesses for the second time after charge. The Petitioner contends that the trial is accordingly vitiated and the order of conviction must be set aside. The learned standing Counsel, however, contends that the non-framing of the charge and the absence of opportunity for cross-examination for the second time after charge has not caused any prejudice and that the omission to follow the procedure prescribed in Section 264 of the Code is a mere irregularity but not an illegality. Reliance is placed on Mohanlal Nandlal Sharma and Another Vs. State which supports his contention. I am unable to accept this decision as laying down good law. It has been consistently laid down that trial of warrant-case by summons procedure is an illegality and vitiates the trial. Reliance is placed on Mohanlal Nandlal Sharma and Another Vs. State which supports his contention. I am unable to accept this decision as laying down good law. It has been consistently laid down that trial of warrant-case by summons procedure is an illegality and vitiates the trial. In such cases it is not necessary to probe into the question whether prejudice was caused. Prejudice is apparent in such cases. In certain cases where charge is not framed, it may be inferred that, there was no prejudice if the case is a simple one and the accused was defended by a lawyer. But the right to cross-examine for the second" time is a valuable right and non-exercise of such right cannot be said not to have caused any prejudice to the accused-See Gopichand v. Delhi Administration A.LR. 1959 S.C. 609. In para 28 it was observed thus- It is not at all easy to accept Respondent's contention that the double opportunity to cross-examine the prosecution witnesses, which is available to an accused person under the warrant procedure, is not a matter of substantive and valuable benefit to him. In support of the proposition that trial of cases in which an appeal lies under the procedure laid down in Section 263 and not u/s 264 of the Code amounts to an illegality and not a mere irregularity, reference may be made to Bandulal Balaprasad Vs. The State, and M. Khivraj v. State of Mysore AIR 1955 Mys. 129. The contention of the learned Standing Counsel that no prejudice has been caused and the trial is not vitiated is accordingly rejected. 13. For clarity the position of law may be summed (i) In a summary trial, summons-case is to be tried by summons procedure and warrant-case by warrant procedure subject to the exceptions in Sections 262, 263 and 264 of the Code; (ii) In a summons-case where no appeal lies, the summary trial must be under the summons procedure in accordance with the procedure laid down in Section 263 of the Code; (iii) In a summons-case where an appeal lies, the summary trial would be in accordance with the summons procedure subject to the procedure prescribed in Section 254 of the Code; and (iv) In a warrant-case, the summary trial is to be done in accordance with the warrant procedure subject to that prescribed in Section 264 of the Code. 14. 14. This case should have been remanded as it has already been held that the procedure u/s 264: of the Code has not been followed. After remand, there would have been no necessity for framing a formal charge as the case is a simple one and the entire case is known to the Petitioner. The Magistrate would have, however, been directed to give further opportunity to the Petitioner to cross-examine for the second time. Due to a special feature noticed in the case, such a course is not necessary. As has already been stated, the statutory price of the particular variety of paddy was 74 paise per Kg. The Petitioner himself admitted that he sold it to p.w.2 at the rate of 75 paise per Kg. On his own admission, the offence is made out. 15. Section 7(1)(a), Proviso lays down that if the Court is of opinion that a sentence of fine only will meet the ends of justice, it may for reasons to be recorded refrain from imposing a sentence of imprisonment. It has already been stated that in this case summons procedure was followed and the provisions of Section 264 of the Code were not kept in view. Moreover the prosecution came forward with a wrong statement that the controlled price was 77 paise per Kg, though it was 74 paise. The Petitioner is also a petty dealer. Taking into consideration of these circumstances I am of opinion that a sentence of fine only would meet the ends of justice. I accordingly sentence the Petitioner to pay a fine of Rs. 200/ - (Rupees two hundred only), in default, to undergo R.I. for ten days. 16. Subject to the aforesaid modification on the question of sentence, the revision is dismissed. Revision dismissed and sentence modified. Final Result : Dismissed