JAIN, J.—This is an appeal by the State of Rajasthan against the order dated 8th April, 1969 of the Additional Sessions Judge, Jhalawar whereby he set aside the conviction of Radhey Shyam respondent under sec. 7 of the Essential Commodities Act on the ground that the trial by the sub-divisional Magistrate, Jhalawar was illegal and ultra vires on his part. 2. Abdul Rahim, Head Constable of Bhawani Mandi police station found a bullock cart carrying 7 bags of bailey on the Jhalawar road near village Ramnagar. Raghunath respondent No. 2 was driving the bullock cart. On being interrogated he informed the Head Constable that the bags belonged to Seth Kundanmal of Bhawani Mandi. His Munim Ramniwas had sent them to be transported to village Ghatod by his cart on hire. First information report Ex. P. 1 was lodged on 12-4-1967 by the said Head Constable Abdul Rahim at the police station. After investigation Raghunath was prosecuted in the court of sub-divisional Magistrate, Jhalawar, Raghunath took the plea before the learned Magistrate that it was Radhey Shyam respondent No. 1 who sent the barley in question by his bullock cart to Ghatod. During the trial the learned Magistrate ordered of Radhey Shyam to be impleaded as accused. Radhey Shyam in his statement admitted that he was the owner of the 7 bags of barley which were carried by Raghunath in his bullock cart. His plea was that the said barley was sent from village Ghatod to Bhawani Mandi for sale. Since it could not be sold out, it was being transported back to village Ghatod. He admitted that he had no permit. On the basis of this statement alone, the learned Magistrate found both the accused having contravened sec. 3 of the Rajasthan Foodgrains (Restrictions on Border Movement) Order, 1959. He held them guilty under sec 7 of the Essential Commodities Act, 1955. It may as well be mentioned that both the accused were tried summarily under sec. 12-A of the Essential Commodities Act. As a result of his order dated 30-3-1968 Radhey Shyam was sentenced to 3 months rigorous imprisonment and a tine of Rs. 500/-, in default of fine a further imprisonment of 3 months was awarded. Accused Raghunath was sentenced to one months rigorous imprisonment and a fine of Rs. 50/-, in default of the payment of fine 10 days further imprisonment was awarded. 3. 500/-, in default of fine a further imprisonment of 3 months was awarded. Accused Raghunath was sentenced to one months rigorous imprisonment and a fine of Rs. 50/-, in default of the payment of fine 10 days further imprisonment was awarded. 3. Raghunath did not file any appeal but Radhey Shyam preferred an appeal in the court of Additional Sessions Judge, Jhalawar. It was argued before the learned judge in appeal that Shri Chetanya Prakash who tried the case of the accused persons summarily, was not specially empowered under sec. 12-A of the Essential Commodities Act. This submission prevailed with the Judge and he placing reliance on Sabuddin Sheikh Mansur vs. J. S. Thakur(l), held that in the circumstances of the case Shri Chetanya Prakash Sub-divisional Magistrate was not specially empowered and as such the trial of the appellant Radhey Shyam was not legal. He, therefore, quashed the trial and set aside the order of conviction vide his judgment dated 8-4-1969. It is in these circumstances that the State Government has filed this appeal. Ragunath has also been made respondent No. 2 in this case. 4. Mr. Shishodia representing the State submitted before us that Shri Chetanya Prakash Sub-divisional Magistrate, Jhalawar was specially empowered under the relevant Act and the notification published thereunder. He referred to the notification No.F. 3(11) Jud/64/Jaipur dated November 18, 1965. According to him this notification specially empowered the S.D.M. Chittorgarh as the authority to try summarily all offences relating to the contravention of any Order made under sec. 3 of the Essential Commodities Act, 1955. It was admitted that Shri Chetanya Prakash was not the S.D.M., Chittorgarh on the day the said notification was published. He was only one of his successors. His contention, however, is that the S.D.M. who held the office on the date of the notification was legally conferred with the special powers, and that special power is valid to any one who succeeded him and happen to hold the Office of S.D.M. at Chittorgarh. 5. On the other hand Mr. He was only one of his successors. His contention, however, is that the S.D.M. who held the office on the date of the notification was legally conferred with the special powers, and that special power is valid to any one who succeeded him and happen to hold the Office of S.D.M. at Chittorgarh. 5. On the other hand Mr. Kasliwal learned counsel appearing for Radhey Shyam strenuously urged that this conferment of power on the sub-divisional Magistrate, Chittorgarh was not a special conferment of power, it is rather a general conferment of power or at any rate it cannot be held even if the notification specially empowered the holder of the office of S.D.M. Chittorgarh, that his successor or successors successor was also specially empowered. Both the learned counsel referred to various authorities in support of their contentions. 6. We will discuss the various decisions referred to us at the Bar. 7. In Mahomed Kasim vs. Emperor (2); 9 persons were tried and convicted of an offence under the Opium Act and sentenced to various terms of imprisonment by the 2nd Class Magistrate of Negapatam. The said Magistrate purported to act under the authority of a notification dated 12th October, 1880, issued by the Govern ment of Madras empowering all Second Class Magistrates to take cognizance of offences under the Opium Act, 1878. The convictions were confirmed by the Sub-divisional First Class Magistrate of Negapatam on appeal. One of the accused went in revision before the High Court. The High Court took up the case of the other accused as well. Their Lordships held that in sec. 3 of the Opium Act a Magistrate has been defined as a Presidency Magistrate, a Magistrate of the first class or (when specially empowered by the Local Government to try cases under this Act) a Second Class Magistrate It was conceded before the High Court that the particular Second Class Magistrate who tried the case was not empowered by name or by office by any notification issued by the Local Govt. under the Opium Act. The only notification is that published in the Port St. George Gazette, Part I, dated 12-10-1880, whereby the Governor-in-Council empowered all Magistrates of the Second Glass to try cases under the Opium Act, 1878. under the Opium Act. The only notification is that published in the Port St. George Gazette, Part I, dated 12-10-1880, whereby the Governor-in-Council empowered all Magistrates of the Second Glass to try cases under the Opium Act, 1878. Their Lordships took notice of S. 39, Cr.P.C. They hold that where a class of officials is invested with powers to try certain offences, it would appear that they are "generally" empowered. The word "generally" is in contrast to the word "specially" which is used in speaking of individuals. Their, Lordships did not accept the argument of the learned Public Prosecutor that the word specially" in the Opium Act. and in the Code of Criminal Procedure has reference to the extra or special powers conferred by the Government Whether the authority-is given by name to an individual or to a class, in either case, the added power will be special power. The word "special" in sec. 39 is inserted to contrast it with the word "general". Their Lordships held that the Second Glass Magistrate of Negapatam, who tried the case, was not specially empowered. This supports the first part of the submission of Mr. Kasliwal. 8 In Emperor vs. Udho s/o Chandumal (3) a question arose on account of the issue of a special warrant by the Deputy Superintendent of Police, Rohri. According to sec. 6(2) of the Bombay Prevention of Gambling Act, it was necessary that the Deputy Superintendent of Police should be specially empowered by name and not merely by virtue of his office to exercise the power of issuing special warrants, as provided in the sub-section. The question that faced the Bench of the Sind Chief Court was as to whether the conferment of powers to the Deputy Superintendent of Police was the power specially conferred. The District Magistrate, Sukkur who heard the case against the conviction of Udho accused held that the Deputy Superintendent of Police should have been empowered by name and not merely by virtue of his office to exercise the power of issuing special warrants. Davis C.J., who spoke for the Court, held that the wording of sub-sec. (2) of sec 6, Gambling Act, required the conferment of power by name. The Court agreed with the view taken by the District Magistrate and saw no reason to interfere with the order discharging the six accused persons. This case is distinguishable, as sec. Davis C.J., who spoke for the Court, held that the wording of sub-sec. (2) of sec 6, Gambling Act, required the conferment of power by name. The Court agreed with the view taken by the District Magistrate and saw no reason to interfere with the order discharging the six accused persons. This case is distinguishable, as sec. 6(2) of the Gambling Act, required the conferment of power by name. Provisions of sec 39 Cr P.C. and of the General Glauses Act were not taken notice of. 9. In Emperor vs. Savalaram Kashinath Joshi (4), a special search warrant was issued by Mr. Crone, Deputy Superintendent of Police, Poona City Sub Division, under the Bombay Prevention of Gambling Act, 1887. As a result of the raid in pursuance of the search warrant, 12 persons were caught gambling with playing cards. They were arrested and tried by the Additional City Magistrate, First Class, Poona. One accused who was the occupant of the room was charged under sec 4(a) and (b) of the Act whereas other 11 persons were charged under sec. 5 of the Act. The learned Magistrate, trying the case, refused to raise a presumption under sec.7 of the Act on the ground that the warrant issued by Mr. Crone was not legal and valid. The matter went in appeal. One of the objections raised before the Bombay High Court regarding the validity of warrant was that Mr Cone was not specially empowered to issue a warrant under sec. 6. Prior to 1926 a warrant under sec. 6 could be issued only by a Magistrate of the First Class or a District Superintendent or an Assistant Superintendent "empowered by Government in this behalf". By the amending Act 5 of 1926, the words "Assistant or Deputy Superintendent" were substituted for the words "Assistant Superintend dent" By a notification dated 23-8-1928, Assistant Superintendents and Dy. Superincedents at six specified places including the Poona City were by virtue of their office empowered to issue warrants under sec.6. Than the amending Act of 1936 replaced the old section by an entirely new one, and the change with which the Court was concerned in that appeal, was that the word "empowered" was altered to "specially empowered". Notification was dated 23-8-1928, as noticed above, prior to this amending Act of 1936 came into force. Their Lordships of the Bombay High Court took notice of sec. Notification was dated 23-8-1928, as noticed above, prior to this amending Act of 1936 came into force. Their Lordships of the Bombay High Court took notice of sec. 25, Bombay General Clauses Act which provided as follows:— 10. The notification issued under the old section shall— "So far as it is not inconsistent with the provision re-enacted, continue in force, and be deemed to have been made or issued under the provision so re-enacted." 11. The Bombay High Court than observed that the notification of 1928 which contains nothing inconsistent with the new sec. 6 of the Act, was still in force, and Mr. Crone, holding the office of the Deputy Superintendent of Police, Poona City, must be held to have been "specially empowered" to issue warrants under that section, Their Lordships did not agree with the view taken by David C.J. of the Sind High Court. They also referred to sec. 15 of the Bombay General Clauses Act, 1904 which provided:— "Whereby any Bombay Act, a power to appoint any person to fill any office, execute any function is conferred, then, unless it is otherwise expressly provided, any such appointment, if it is made after the commencement of this Act, may be made either by name or by virtue of office." Finally it was held that the warrant issued by Mr. Crone was legal and valid though the appeal was dismissed on merits. The view taken in this case, some what supports the stand point of Mr. Shishodia when he urged that special powers can be conferred by name or by office. 12. None of these cases, resolves the real question of controversy in this case. The main controversy consists in the alternative agreement canvassed by Mr. Kasliwal. It can be formulated as under: — whether a successor in office can validly exercise the special powers conferred upon his predecessor in office by virtue of his office? 13. This question directly arose before the Gujrat High Court in Sabuddin Sheikh Mansur vs. J.S. Thakar (l). This case was under the Bombay Police Act. Kasliwal. It can be formulated as under: — whether a successor in office can validly exercise the special powers conferred upon his predecessor in office by virtue of his office? 13. This question directly arose before the Gujrat High Court in Sabuddin Sheikh Mansur vs. J.S. Thakar (l). This case was under the Bombay Police Act. One Shri Thakar, Sub-Divisional Magistrate, Baroda passed an order of experiment on 21-8-1966 against Sahuddin Sheikh, the petitioner in Gujarat case, directing him to remove himself outside the district of Baroda by a certain route within 3 days from the date of receipt of the order and prohibiting him from entering or returning to the said district for a period of two years from the date of the order without his permission in writing or that of the District Magistrate, Baroda. The experiment proceedings were started as a result of notice dated 21st August, 1965, given to the petitioner by one Shri Dhruv, the Sub-divisional Magistrate in charge of the city of Baroda, on whose transfer subsequently, Thakar probably took charge and passed the order under challenge. One of the grounds on which the petitioner attacked the order was the competence of the Sub Divisional Magistrate to pass the impugned order under sec. 56 of the Bombay Police Act. Sec. 56 of the Act empowered the State Government by notification in the Official Gazette to extend the provisions of this section, to the District Magistrate, or the Sub Divisional Magistrate specially empowered by the State Government in that behalf, with regard to the movements or acts of any person if they are causing or calculated to cause alarm, danger or harm to person or property, or that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence or an offence punishable under Chapter XII, XVI or XVII of the I. P. Code etc. etc. The following question which was found to be important was referred to the Full Bench: — "What is the correct interpretation of the expression the Sub divisional Magistrate specially empowered by the State Government in that behalf as used in section 56 of the Bombay Police Act." 14. Miabhoy C.J. who spoke for the Court laid down that in order that there may be a special conferment of power under sec. Miabhoy C.J. who spoke for the Court laid down that in order that there may be a special conferment of power under sec. 56 of Bombay Police Act in regard to a Sub Divisional Magistrate, power must be conferred upon that officer either by his name or by virtue of his office. In either case, Government must have definitely before its minds eye the particular individual or person who is being selected for the conferment of power. If that is not so, then, the officer is not specially empowered. On the other hind, if power is conferred upon the class of Sub Divisional Magistrates, which will be the case if more than one particular individual is intended by the Government and specilality if the Government intends to empower the successors in office of the Sub Divisional Magistrates concerned then, it is a general conferment of power. Their Lordships took notice of S. 39 Cr.P.C. —as well as the provisions of General Glauses Act and relying upon those provisions it was held that the power is conferred upon the Sub Div. Magistrate by virtue of his office, then, it does not cease to be a special conferment of power. According to that finding their Lordships held that the appointment of Shri Dhruv, Sub Div. Magistrate as the authority specially empowe-red u/s. 56 of the Bombay Police Act, was in order. But the matter did not stop there The question that faced the Full Court was as to whether Mr. Thakar who passed the impugned order of externment could be held to be one as specially empowered under the Act, he being the successive officer. The reasoning adopted by Miabhoy G.J. is that while giving special power the State Government has to satisfy itself that the person concerned has also the special experience and equipment which would ensure it that the power will be enjoyed with propriety and justice. Though the Conferment may be by name or by virtue of his office, the State Government must have the individual in the view. Though the Conferment may be by name or by virtue of his office, the State Government must have the individual in the view. It was observed:— "Whether the officer is selected by name or by virtue of his office, the person who is so selected must be an individual in whom the State Governmeat has faith that he will be able, by virtue of his experience and equipment and similar other considerations, to discharge the responsibility or duty cast upon him by the section." 15 In either case, according to the learned Chief Justice, Government must have definitely before its minds eye the particular individual or person who is being selected for the conferment of power. Madras case (2) referred to above Mohamad Kasim vs. Emperor. Sind case Emperor vs. Udho s/o Chandumal (3) and Bombay case Emperor vs. Savalram Kashinath Joshi (4) and various other cases for and against were considered by the Full Bench. Sindhi Lohana Choithram Parasram vs. The State of Gujarat (5) which was decided by the Supreme Court before the pronounce ment of the judgment by the Gujarat High Court, was also taken notice of. The view that the Gujarat High Court expressed that one can be specially empowered by name or by virtue of office, was confirmed by the Supreme Court decision. The Supreme Court did not express any opinion on the question as to whether the special power conferred on an incumbent can be availed of by his successor. This question was not before the Supreme Court and cannot be said to have been decided. As a matter of fact the Supreme Court left all other questions open. 16. We are in respectful agreement with the view taken by the Full Bench of the Gujarat High Court in the case referred to above. We have rather strong reasons to accept the reasoning of Miabhoy C J. on the facts appearing in the instant case. The notification in our case was issued in 1964. That notification reads as follows:— "NOTIFICATION Jaipur, Nov.18, 1964 No.F 3 (1) Jud /64—In pursuance of sec. 12-A of the Essential Commodities Act, 1955, as amended by the Essential (Amendment) Ordinary ce 964. The Mate Govt. hereby specially empowers the following Magistrates of the First Class to try summarily all offences relating to the contravention of any such order male under sec. 12-A of the Essential Commodities Act, 1955, as amended by the Essential (Amendment) Ordinary ce 964. The Mate Govt. hereby specially empowers the following Magistrates of the First Class to try summarily all offences relating to the contravention of any such order male under sec. 3 of the said Act as may ba specified by the central Government, by a notified order, in this behalf 1. A.D.M. Ajmer 2. A.D.M. Jaipur 3. A.D.M. Sikar 4. A.D.M. Bharatpur 5. A.D.M. Jhunjhunu 6. A.D.M. sawaimadhopur 7. A.D.M. Alwar 8. A.D.M. Jodhpur 9. A.D.M. Nagaur 10. A.D.M. Pali 11. A.D.M. Bikener 12. A D.M. Ganganagar 13. A.D.M. Udaipur 14. A.D.M. Bhilwara 15. A.D.M. Kotha 16. S.D.M. Tonk 17. S.D.M. Barmer 18. S.D.M. Jaisalmer 19. S.D.M Jalore 20. S.D.M. Sirohi 21. S.D.M. Churu 22 S.D.M. Chittor 23. S.D.M Banswara 24 S.D.M. Dungarpur 25. S.D.M. Bundi 26. S.D.M. Jhalawar." 17. According to this notification A. D Ms were appointed for 15 districts. In the remaining 11 districts of the State S.D.Ms were specially empowered to try the offences summarily under sec. 12-A. In these districts there were no posts of Addi-tional District Magistrates. The incumbent on the day the notification was issued was the authority specially empowered to try summarily offences under sec. 3 of the Essential Commodities Act. Shri Chetan Prakash S.D.M Chittorgarh who happened to be the officer concerned in 1967, was not definitely in the mind of the State Government on 18-11-1964 (date of the notification)when this special power was conferred on the various officers in the 26 districts of the State 18. Sec. 12-A which was inserted in the Act by the Essential Commodities Act, 1964 is extracted below— "12. A. Power to try summarily,—(I) If the Central Government is of opinion that a situation has arisen where, in the interest of production, supply or distribution of any essential commodity or trade or commerce therein and other relevant considerations it is necessary that the contravention of any order made under sec. 3 in relation to such essential commodity should be tried su-mmaily, the Central Government may, by notification in the Official Gazette, specify such order to be a special order for purposes of summary trial under this section, and every such notification shall be laid, as soon as may be after it is issued, before both Houses of Parliament. (2) Where any notification issued under sub-sec. (2) Where any notification issued under sub-sec. (1) in relation to a special order is in force, then, notwithstanding any thing contained in the Code of Criminal Procedure, 1898, all offence. relating to the contravention of such special order shall be tried in a summary way and by a magistrate of the first class specivly empowered in this behalf by the state Government or by a Presidency Magistrate, and the provisions of sec. 262 to 265 (both inclusive) of the said Code shall, as for as may be, apply to such trial: Provided that, in the case of any conviction in a summary trial under this section it shall be lawful for the magistrate to pass a sentence of imprisonment for a term not exceeding one year. (3) 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 under sec 517 of the said 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. (4) Where any notification is issued under sub-sec. (1) in relation to a special order, all cases relating to the contravention of such special order and pending on the date of issue of such notification shall, if no witnesses have been examined before the said date, be tried in a summary way under this section, and if any such case is pending before a magistrate who is not competent to try the same in a summary way under this section, it shall be forwarded to a magistrate so competent." 19. Sub-sec. (2) provided that all offences relating to the contravention of such special order should be tried in a summary way and by a magistrate of the first class specially empowered in this behalf by the State Government. It is plain that it is the first class magistrate who has to be specially empowered. Sub-sec. (2) provided that all offences relating to the contravention of such special order should be tried in a summary way and by a magistrate of the first class specially empowered in this behalf by the State Government. It is plain that it is the first class magistrate who has to be specially empowered. According to sec 13 of the Code of Criminal Procedure, 1898 the State Government may place any Magistrate of the first or second class in charge of a subdivision, and relieve him of the charge as occasion requires. Sub-sec. (2) further says that such Magistrate shall be called sub-divisional Magistrate. The same provision has been repeated in sub-sec. (4) of sec. 20 of the new Code which reads as follows— "The State Government may place an Executive Magistrate in charge of a sub-division and may relieve him of the charge as occasion requires; and the Magistrate so placed in charge of a sub-division shall be called the sub-divisional Magistrate." 20. The Executive Magistrate may be a Magistrate of first class or second class. It is open to the State Government to appoint a Magistrate of first class or second class as a Sub divisional Magistrate. By specially empowering a Sub divisional Magistrate in 1964, it cannot be said that special power has been conferred on all the Sub-divisional Magistrates who are likely to succeed the incumbent of the office in 1964. It may be that the incumbent in 1964 was a first class Magistrate and the State Government had him in view. Nothing prevented the State Government to place the Subdivision of Chittorgarh under a second class Magistrate any time thereafter. Thus the power once conferred specially, cannot hold good for all time to come to every successor. In the present case the power could be conferred only on a first class Magistrate by the State Government. We are, therefore, on stronger footings, to hold that the power conferred upon the Sub-divisional Magistrate in 1964 would not be available to his successor. In our judgment, Shri Chetanya Prakash who tried the case was one who was not specially empowered under sec. 12-A of the Essential Commodities Act, 1955. 21. Reference was made to C.V. Madhava Mannadiar vs. District Collector & Addl. District Magistrate, Palghat (6), by Mr. Shishodia. In our opinion the facts of the Kerala case are wholly distinguishable. In our judgment, Shri Chetanya Prakash who tried the case was one who was not specially empowered under sec. 12-A of the Essential Commodities Act, 1955. 21. Reference was made to C.V. Madhava Mannadiar vs. District Collector & Addl. District Magistrate, Palghat (6), by Mr. Shishodia. In our opinion the facts of the Kerala case are wholly distinguishable. The case had arisen out of the Preventive Detention Act, 1950. Mr. G Gopalkrishna Pillai, the District Collector of Palghat issued the impugned order of detention He was the officer who was specially empowered on the date of the notification. It was not a case where detention authority was different than the one who "was specially empowered by notification. That apart, the law provided that the State Government could empower the Addl. District Magistrate as such to pass an order of detention under Preventive Detention Act, 1950. The present case is different. In the first instance it was the First Class Magistrate who could be specially empowered and secondly the First Glass Magistrate empowered in 1964 was not the officer who tried the accused respondent in 1968. It was Shri Chetanya Prakash who succeeded him and tried the case and it is the trial by him which is under challenge. 22. For the reasons mentioned above, we are clearly of the opinion that Shri Chetanya Prakash was not competent to try the accused persons for an offence relating to the contravention of sec. 3 of the Rajasthan Foodgrains (Restrictions on Border Movement) Order, 1959. 23. From the perusal of the record of the trial Magistrate, we find that after recording the statement of the accused persons he proceeded to record the order of conviction. No evidence on behalf of the prosecution was produced and recorded. The accused persons were found to have violated sec. 3. Section 3 of the Order, 1959 reads as follows— "3. Restrictions on the movement of foodgrains to or within the internal border area—No person shall transport, attempt to transport or abet the transport of foodgrains— (a) to any place in the internal border area from any place outside that area; or (b) from any place in the internal border area to any other place in that area, except under and in accordance with a permit issued by the State Government or any officer authorised by that Government in this behalf. Provided that nothing contained herein shall apply to the transport of foodgrains within the district of Sri Ganganagar." 24. Thus the accused have been found to have transported foodgrain namely barley out of the internal border area. Internal border area has been defined in sec. 2(bb) which is extracted below— "(bb) internal border area means the area within the State of Rajasthan lying within a tenmile belt all along the border of the State adjoining the States of Punjab, U.P., & M.P., Maharashtra and Gujarat." 25. No evidence was led on behalf of the prosecution that the place where the bullock cart of Raghunath was checked, was within the ten-mile belt all along the border of this State adjoining the States of Punjab, Uttar Pradesh, Madhya Pradesh, Maharashtra or Gujarat. The observation of the learned trial Magistrate that it was within 2 miles of the border of Rajasthan and Madhya Pradesh is without any evidence on record. No personal knowledge could be imported to record the conviction of the accused. That apart, this matter is pending since 1968, it shall not be in the fitness of things to order retrial of Radhey Shyam after such a long time. As regards Raghunath, he did not prefer an appeal against his conviction and he has also served out the sentence. In the circumstances it shall not be proper to order retrial. 26 Accordingly we dismiss the appeal of the State and we further order that the case is not fit one for retrial.