Judgment D.P.S.Choudhary, J. 1. The sole appellant preferred this appeal against the judgment and order dated 26th April, 1989 passed by the Special Judge, E.C. Act (Urban), Patna in Special Case No. 17 of 1987 (arising out of Malsalami P.S. Case No. 90 of 1987, convicting the appellant under Sec. 7 of the E.C. Act, (hereinafter referred to as the Act) and sentencing him to undergo imprisonment for six months. 2. The brief fact of the case is that the Deputy Superintendent of Police (Food) along with other officers of the Supply Department on 19-8-1987 made inspection of the shop of the appellant. It is alleged that in spite the shop of the appellant 48 Tins of Rapseed oil was found meant for sale through the Public Distributionship System and in three opened Tins loose oil was found which was smelling like castor oil. On inquiry no cash-memo or accounts or licence for the said oil was produced on behalf of the appellant or his agent thus the appellant violated the provisions of the Unification Order, 1984. 3. During trial prosecution examined 8 witnesses in between the period 25-1-1981 to 18th of August, 1988 and thereafter the judgment was pronounced on 26-4-1989 and the accused-appellant was convicted accordingly. 4. The defence case is that appellant carries on business in castor oil and for carrying such business on castor oil, no licence is required under the provisions of the Unification Order, 1984. 5. On behalf of the appellant, it was submitted that the trial of the appellant in the Court below was ab initio void and the sentence passed thereunder is not maintainable and fit to be set aside. The learned appellate lawyer submitted that the conviction and sentence as recorded by Sri. N. N. Singh, Special Judge, E.C. Act, Patna is without jurisdiction and conviction is bad in law for the reason that Sri Singh when succeeded the previous Judge simply pronounced the judgment on the basis of the evidence recorded by previous Judge in office. All the evidence in the case were recorded by his predecessor including Sri A.P. Sinha and Sri R. D. Roy, Special Judge. From the lower Court records, it appears that in between period 25-1-1981 to 17-3-1988 the evidence of P.Ws. 1 to 4 were recorded by the then Special Judge, Sri A.P. Sinha. The evidence of P.Ws. All the evidence in the case were recorded by his predecessor including Sri A.P. Sinha and Sri R. D. Roy, Special Judge. From the lower Court records, it appears that in between period 25-1-1981 to 17-3-1988 the evidence of P.Ws. 1 to 4 were recorded by the then Special Judge, Sri A.P. Sinha. The evidence of P.Ws. 5 to 8 were recorded by his successor in office. 17-1-1989, Sri R.D. Roy the then Special Judge, E.C. Act also recorded the statement of the accused-appellant under Sec. 313, Cr. P.C. Thereafter the Special Judge, Sri Roy was transferred and his successor, Sri N.N. Singh, delivered the judgment on 26-4-1989. 6. It was further submitted on behalf of the appellant that admittedly under the E.C. Act, the case is to be tried summarily under the provisions of Section 326(3) Cr. P.C. The successor Court was not competent to use the evidence of P.Ws. 1 to 8 which were recorded earlier by the predecessor Court, nor he was competent to pronounce the judgment on these evidence which were admittedly not recorded by him. There is specific provision under Sub-sec. (3) of Section 326 of Cr. P.C. that the Magistrate or the Judge concerned is not competent to use the evidence recorded by his predecessor. Only course left before the Special Judge, Sri Singh was to again record the evidence of all the P.Ws. by himself and then to pronounce the judgment. Admittedly, this was not done in the instant case. In that view of the matter the conviction order recorded by Sri Singh on the basis of the evidence recorded by his two predecessors is to be treated as without jurisdiction as he was not competent to use the evidence and in view of the matter, the conviction recorded by Sri Singh is apparently is bad in law and liable to be set aside. 7. In support of his contention, the learned appellant lawyer relied on the decisions reported in 1998 (1) B.L.J.R. page 499 (Prafful Pradhan, petitioners. The State of Bihar), 1990 (1) PLJR page 477 (National Kabra and Anr. V/s. The State of Bihar) and 1997 Vol 1 PLJR page 991 (Vyas Sahu V/s. The State of Bihar). 8. The learned appellant lawyer submitted that admittedly the case was tried under the summary procedure a mandatory under the E.C. Act. The State of Bihar), 1990 (1) PLJR page 477 (National Kabra and Anr. V/s. The State of Bihar) and 1997 Vol 1 PLJR page 991 (Vyas Sahu V/s. The State of Bihar). 8. The learned appellant lawyer submitted that admittedly the case was tried under the summary procedure a mandatory under the E.C. Act. The above reported decisions of our awn High Court is based of the earlier decisions of the Supreme Court (Pyare Lal V/s. The State of Punjab) where it was held that when one Special Judge succeeded another, the successor Special Judge had no authority under the law to proceed with the trial of the case from stage at which his predecessor left it, where the successor Judge convicts the accused on the basis of the evidence recorded by his predecessors without recalling the witnesses, the conviction could not be supported as he had not himself recorded the evidence. The proceedings before him were incompetent this is not a case of irregularity for want of competency as enumerated in Clause (3) of Sec. 326, Cr, P.C. This defect is not also quarable because his subsequent trial became ab initio void. Lastly, it was submitted on behalf of the appellant that this case is of the year 1987, the appellant was already suffered a lot by facing the criminal trial, hence, for the ends of justice, it would not be desirable to send back the case for fresh trial. 9. The learned A.P.P. conceded to the above submissions made on behalf of the learned appellant lawyer on the points of law and stated that the conclusion of the trial was not in accordance with the law and there was violation of the provisions as contained in Sub-clause (3) of Sec. 326, Cr. P.C. 10. So far the reasons mentioned above, I am of the opinion that using the evidence of P.Ws. 1 to 8 recorded by the predecessor and on its basis the pronouncement of the judgment of the successor Court was not in accordance with the provisions under Sub-sec. (3) of Sec. 326, Cr. P.C. Therefore, the entire order of conviction and sentences as recorded by Sri Singh is bad in law and is fit to be set aside. 11. Since this case is of the year 1987, it is not safe and desirable to remit the case to the Special Judge again for retrial. 12. (3) of Sec. 326, Cr. P.C. Therefore, the entire order of conviction and sentences as recorded by Sri Singh is bad in law and is fit to be set aside. 11. Since this case is of the year 1987, it is not safe and desirable to remit the case to the Special Judge again for retrial. 12. In the result, the appeal is allowed and the judgment of conviction of the trial Court is hereby set aside and the accused is acquitted and discharged from the liabilities of the bail-bonds.