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2001 DIGILAW 114 (PAT)

Ashok Kumar Singh @ Pankaj v. State Of Bihar

2001-02-08

INDU PRABHA SINGH

body2001
Judgment I.P.Singh, J. 1. Mr. Rajesh Kumar assisted the Court as amicus curiae. Therefore, Patna Legal Aid Committee is directed to pay his fee in accordance with law. 2. The sole appellant has been convicted under Section 7 of the Essential Commodities Act (in short the Act) and has been sentenced to undergo rigorous imprisonment for one year. 3. The prosecution case, in brief, is that the appellant Ashok Kumar Singh alias Pankaj was a licensed coal dealer vide Licence No. 1/81 in Ward No. 7 of Deshrajpur village. It has been alleged that he lifted the soft coal from different collieries on different dates from October, 1981 upto September, 1983 against sanction allotments but he did not bring the aforesaid coal to his licensed premises and sold the same in black market at some other places. It has been further alleged that he did not enter the lifting of coal in the relevant registers and could not get verified the entries in the registers except for dates in between 26.11.1982 and 16.11.1983. Thus, he violated term No. 7 of the licence and contravened the provisions of Coal Control Order, 1956 and was liable for punishment under Section 7 of the Act. The written report also contains so many dates on which the appellant was sanctioned allotment of coal and which he lifted from collieries as alleged and for which this case has been filed. The written report also contained reference to different quantities of allotment on various dates to the appellant as also the dates on which the appellant allegedly lifted coal from collieries. The relevant dates of lifting are 14.9.1983, 24.10.1983 and 8.10.1983, 11.10.1983, 15.10.1983 and 19.10.1983. Accordingly, the appellants has been prosecuted for lifting of the 300 MT coal on aforesaid dates. 4. The appellant pleaded not guilty and has stated that he has been falsely implicated in this case at the instance of his enemy. 5. The prosecution in order to prove its case has examined altogether four witnesses. PW 1, Bankey Prasad, is an Executive Officer, PW 2, Dhrub Prasad is a formal witness, PW 3, Ram Naresh Singh, is also a formal witness, PW 4, Rajiv Bhaba, is also an Executive Officer. 6. 5. The prosecution in order to prove its case has examined altogether four witnesses. PW 1, Bankey Prasad, is an Executive Officer, PW 2, Dhrub Prasad is a formal witness, PW 3, Ram Naresh Singh, is also a formal witness, PW 4, Rajiv Bhaba, is also an Executive Officer. 6. The learned counsel appearing on behalf of 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. He has also 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 PC empowering the Judge or Magistrate to act on the evidence recorded by his predecessor has been made inapplicable to summary trials. He has placed reliance on the case of Vyas Sah v. The State of Bihar, 1997 (1) PLJR 991. 7. Section 12-AA of the Act lays down the procedure for trial by the Special Judge for cases under Section 7 of the Act. For a summary trial the provisions laid down under sub-section (3) of Section 326 of the Code of Criminal Procedure is very clear 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. In the present case the deposition of PW 2 was recorded by a Special Judge whereas the deposition of PW 3 was recorded by another Special Judge. It also appears that the deposition of PW 4 was recorded by other Special Judge and the judgment was delivered by another Special Judge which is clear violation of Section 326 of the Code of Criminal Procedure. 9. 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. His liability under bail bond is discharged.