JUDGMENT P.K. Sarin, J. - The appellant has been convicted and sentenced by the Special Judge (E.C. Act) Samastipur by his judgment and order dated 18-7-1988 passed in T.R. Case No.30/88 to one year's rigorous imprisonment under Section 7 of the Essential Commodities Act and under Section 3 of the Bihar Essential Articles (Display of Prices and• Stock) Order, 1977. 2. The prosecution in brief, was that the Marketing Officer-cum-Supply Officer Incharge. Shri Madhav Jha 'Pankaj' (PW1) inspected the shop of the appellant being run under the name and style as 'M/s Shriram Store' situate at Tajpur on 72-1985 at 3 PM. The appellant is said to be a retail dealer having licence for sale. The complainant Shri Madhav Jha checked different stock of food-grains which were available there and during course of such verification 33 quintals 48 kilograms of wheat contained in 36 bags, 1 quintal 2 kilograms of Urad contained in one bag, 31 quintals 1 kilogram of maize contained in 34 bags and 55 quintals 10 kilograms of rice contained in 34 bags and 55 quintals 10 kilograms of rice contained in 58 bags were found in stock. It was alleged that the appellant did not produce the stock register or any other paper to show the storage of the noted grains, for inspection on demand in the course of the inspection nor any paper was recovered from the business premises of the appellant. It was alleged that the appellant did not have the stock register or receipt showing the purchase of the above noted grains. It was also alleged that the board displaying prices and stock only showed the names of food-grains but the prices and stock of those food grains were not written on the display board although it was required to be displayed under condition 3(a) and 7 of the licence of retail dealers. It was further alleged that in view of the said conditions of the licence the retail dealer of grains has to maintain the stock register of the stock of grains available in his shop and on each date correct entries regarding purchase and sale are to be made in the said register and the cash memo is also to be issued to the customers. The grains found in the business premises of the appellant were seized and seizure list was prepared. The grains found in the business premises of the appellant were seized and seizure list was prepared. After obtaining sanction for prosecution from S.D.M. Samastipur a complaint was filed against the appellant accused in the court of Special Judge, where he had been tried. 3. The appellant pleaded not guilty to the charge. 4. The prosecution examined these witnesses namely Shri Madhav Jha 'Pankaj' (PW1), the complainant, Sita Ram Sah (PW2) and Ram Kishun Bhagat (PW.3). The defence also examined 'three witnesses. The learned Special Judge on appraisal of evidence found the charge against the appellant to be proved beyond all reasonable doubts and accordingly convicted and sentenced him as already noted above. 5. Before I take up the contention raised by the learned counsel for the appellant, it would be proper to refer to the prosecution evidence in short. The complainant Shri Madhav Jha 'Pankaj' reiterated the prosecution case in his deposition. He stated that he inspected the shop of the accused on 7-12-1985 in presence of witnesses, Sita Ram Sail (PW2) and Ram Kishun Bhagat (PW3). He also stated that no stock register was available at the business premises and the display board did not contain the prices and the stook. He has proved the seizure list also. He has further stated that after obtaining sanction order from the S.D.M. complaint was filed against the petitioner. PW2 Sita Ram Sah who is a witness of seizure list has stated that his signature on the seizure list was obtained at a tea stall near police station. Thus in fact he denies his presence at the business premises of the appellant at the time of inspection and seizure. Similar is the statement of PW3 Shri Ram Kishun Bhagat who also state that his signature on the seizure list was taken at a tea stall. Thus remains only the statement of complainant (PW.1) regarding inspection of the business premises of the appellant and the seizure of the food-grains. DW.1, Pramod Thakur is a formal witness who has proved a certificate, Ext. A. D.W.2 Dr. Azahar Khalil has stated that he had treated the mother of the appellant from 7-12-85 to 9-12-85 and had issued the certificate (Ext. A). DW.3 Shri Dhruv Narain Lal is also a formal witness who has proved a document (Ext. B). DW.1, Pramod Thakur is a formal witness who has proved a certificate, Ext. A. D.W.2 Dr. Azahar Khalil has stated that he had treated the mother of the appellant from 7-12-85 to 9-12-85 and had issued the certificate (Ext. A). DW.3 Shri Dhruv Narain Lal is also a formal witness who has proved a document (Ext. B). It is said to be in the writing and signatures of one Mahendra Singh, the assistant in Sub-divisional Supply Office. 6. The learned counsel for the appellant has contended that in the present case the procedure for trial was summary procedure and it was necessary that the same Special Judge who had recorded the entire evidence ought to have decided the case and the successor in office could not have decided the case on the evidence recorded by his predecessor. It is contended that in view of sub-section (3) of Section 326 of the Code of Criminal Procedure, the provision of sub-sections (1) and (2) of Section 326 of the Cr. P.C. empowering the Judge or Magistrate to act on the evidence recorded by his predecessor has been made inapplicable to summary trials. It appears from the perusal of the order sheet of the trial court that the Presiding officer who had recorded the evidence of the witnesses was transferred before hearing argument. It is evident by the order dated 1-3-88 that the arguments appeared to have been heard by the successor Special Judge who has delivered the judgment. 7. Section 12-AA, lays down the procedure for trial by Special Courts. Sub-Section (f) of Section 12-AA of the Essential Commodities Act lays down that all offences under this Act shall be tried in a summary way and the provisions of Sections 262 to 265 of the Code shall, as far as may be, apply to such trial; by proviso it is provided that in case of any conviction in summary trial under this section, the Special Judge may pass a sentence of imprisonment for a term not exceeding two years. The said provision shows that the trial for the offences under Essential Commodities Act has to be done in summary way and the provisions of summary trial contained in Sections 262 to 265 have been made applicable to such trial. The said provision shows that the trial for the offences under Essential Commodities Act has to be done in summary way and the provisions of summary trial contained in Sections 262 to 265 have been made applicable to such trial. Section 326 of the Code of Criminal Procedure provides that the successor Judge or the Magistrate may act on the evidence recorded by his predecessor. This Provision empowers a successor Judge or Magistrate to proceed from the stage where his predecessor has left the case. However, this procedure is not available in case of summary trials in view of sub section (3) of Section 326 of the Code of Criminal Procedure which reads as follows: Sub-section (3) of Section 326 (3) Nothing in this section applies to summary trials or to cases in which proceedings have been stayed under Section 326 or in which proceedings have been submitted to a superior Magistrate under Section 325. 8. The Rajasthan High Court in its decision in the case of Man Singh v. State of Rajasthan (1991 (1) EFR 154) has held that in view of sub-section (3) of Section 326 of the Code of Criminal Procedure the provisions contained in subsections (1) and (2) are not applicable to summary trial and the law is settled that the accused has a right that his case should be heard and decided by the same Magistrate. The effect of the judgment is that if the said provision is not followed, the trial will vitiate. The Andhra Pradesh High Court in the case of Ch. Surya vs. State of Andhra Pradesh (1989 EFR 493) has also held that in the case of summary trial succeeding magistrate cannot proceed from the stage at which trial was left by transferred magistrate. The said case was for the offence punishable under Section 16A of the Prevention of Food Adulteration Act and in the said case the evidence was recorded by one magistrate who was transferred before pronouncing judgment. It was held that the judgment delivered by succeeding magistrate on the basis of evidence recorded by his predecessor was illegal and the trial was vitiated. In both the aforesaid cases the de novo trial was not ordered on account of lapse of long period. 9. The rationale behind the aforesaid view appears to be that under Section 262, Cr.PC. It was held that the judgment delivered by succeeding magistrate on the basis of evidence recorded by his predecessor was illegal and the trial was vitiated. In both the aforesaid cases the de novo trial was not ordered on account of lapse of long period. 9. The rationale behind the aforesaid view appears to be that under Section 262, Cr.PC. the procedure specified for the trial of summons case has to be followed in summary trials and Section 264 of the Code of Criminal Procedure lays down that the magistrate shall record the substance of the evidence. Thus it is evident that in summary trial only substance of evidence has to be recorded which does not record the entire statement of the witness instead it only records the substance of the statement of the witness what he stated before the court. Therefore, the Judge or the Magistrate who has recorded such substance of evidence is in a position to appreciate the evidence led before him and the successor Judge or Magistrate cannot appreciate the evidence only on the basis of evidence recorded by his predecessor. In my opinion, that appears to be the reason why the provisions of sub-sections (1) and (2) of Section 326 of the Code of Criminal Procedure have not been made applicable to summary trials. 10. In the present case the evidence was recorded by the predecessor of the Special Judge who heard arguments and delivered the judgment. The Special Judge, who delivered the judgment had not himself recorded the evidence. He could not have proceeded from the stage where his predecessor had left the case and could not have used the evidence recorded by his predecessor. Therefore, the judgment and order is vitiated on account of said illegality. 11. Now the question arises whether the case should be remanded to the trial court for de novo trial. The offence is said to have been committed in the year 1985. About 11 years have already elapsed. The offence committed is said to be contravention of terms of licence and also the provision of the Bihar Essential Articles (Display of Prices and Stock) Order, 1977. In these circumstances, it does not appear expedient to order for de novo trial so as to compel the appellant to undergo agony of trial again after a lapse of more than 11 years. In these circumstances, it does not appear expedient to order for de novo trial so as to compel the appellant to undergo agony of trial again after a lapse of more than 11 years. He must have suffered mental agony during the period of trial and pendency of his appeal. I agree with the view taken by Rajasthan High Court in the case of Man Singh (supra) and the Andhra Pradesh High Court in the case of Ch. Surya Rao (supra) that on account of lapse of long period do novo trial would not be necessary in the interest of justice. 12. The learned counsel for the appellant has raised many other contentions challenging the judgment under appeal but it does not appear necessary to deal with those contentions when it has been found that trial was vitiated on account of non-delivery of judgment by the judge who had recorded the evidence. Therefore, those contentions are not taken up now. 13. In the result, the appeal succeeds. The judgment and order under appeal is set aside. The appellant is acquitted of the charge. He is on bail. He need not surrender. His liability under bail bond is discharged.