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2002 DIGILAW 696 (JHR)

Puni Sahu v. State Of Bihar

2002-07-01

VISHNUDEO NARAYAN

body2002
JUDGMENT Vishnudeo Narayan, J. 1. This appeal has been directed by the appellant against the judgment and order dated 24.4.1996 passed by Sri R.P. Verma, Special Judge, Essential Commodities, Ranchi in G.R. No. 14 of 1991 whereby the appellant has been found guilty for the offence punishable under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 (in short E.G. Act) and he was convicted and sentenced to undergo R.I. for two years and also to pay a fine of Rs. 500/- and in default thereof to further undergo R.I. for one month. 2. The prosecution case has arisen on the basis of the written report of informant. PW 3, Vakar Ahmad, Supply Inspector of Basta and Kamdara Circle in the district of Gumla lodged before the Kamdara P.S. on 23.9.1991 at 17.00 hours regarding the occurrence which is said to have taken place on 23.9.1991 at 10.50, hours in the fair price shop situated at village Titihi, district Gumla. 3. The prosecution case, in brief, is that the appellant is a licensee of a fair price shop at village Titihi and PW 3, the informant, inspected the fair price shop of the appellant and he found that the stock and price list were displayed on the board at the said shop indicating the stock position of sugar, wheat and kerosene oil being 2 quintals, 190 kg and 70 ltrs respectively but on verification of the sale register and the cash memo it was found that no item aforesaid was distributed among the card holders till the time of inspection. The prosecution case further is that there was nothing found on physical verification of the stock whereas according to the stock position there should have been a stock of 2 quintals of sugar, 70 ltrs, of kerosene oil and 190 kg. of wheat. Accordingly stock registers regarding the aforesaid articles, cash memos etc. were seized and seizure list was prepared. It is also alleged that the appellant has sold the aforesaid essential quantities in the black market which were meant for distribution among the card holders. 3-A. In course of the investigation, however, the I.O. seized 150 kg of sugar, 95 kg of wheat and 50 ltrs. were seized and seizure list was prepared. It is also alleged that the appellant has sold the aforesaid essential quantities in the black market which were meant for distribution among the card holders. 3-A. In course of the investigation, however, the I.O. seized 150 kg of sugar, 95 kg of wheat and 50 ltrs. of kerosene oil along with different measures for measuring kerosene oil besides container of tin from the residential house of the appellant situated at village Turundu, P.S. Kamdara, district Gumla and these recovered articles were also seized and a seizure list was prepared. 4. The substance of accusation under Section 9(ii) of the E.C. Act was explained to the appellant on 31.3.1992 to which he has pleaded not guilty and claims himself to be innocent and to have committed no offence. It has also been contended that he has stored the aforesaid essential commodities in his residential house as per the written permission of the C.O. Kamdara and the entire stock, as mentioned on the display board, has been found and recovered from his residential house at Turundu. 5. The prosecution has examined seven witnesses to substantiate the prosecution case. PW 3 is the informant of this case. PWs 1 and 2 are the witnesses of seizure in respect of the sale register and cash memos recovered from the fair price shop of the appellant and their signatures are Ext. 1 series on the seizure list Ext. 2, PW 5 is the witness of seizure regarding the recovery of the aforesaid articles from the residential house of the appellant and his signature as well as the signatures of other witnesses of the seizure on the seizure list is Ext. 3. 3/2 and 3/3, PWs 1 and 6 have been tendered by the prosecution. PW 7 is the investigating officer of this case. The appellant has himself taken oath as DW 1 to prove the written permission of the Circle Officer, Kamdara for storage of the essential commodities aforesaid in his house and the said written permission is Ext. A in this case. 6. In view of the evidence, oral and documentary, on the record the learned Court below has found the appellant guilty for the offence punishable under Section 7(1)(a)(ii) of the E.C. Act and convicted and sentenced him as stated above. 7. A in this case. 6. In view of the evidence, oral and documentary, on the record the learned Court below has found the appellant guilty for the offence punishable under Section 7(1)(a)(ii) of the E.C. Act and convicted and sentenced him as stated above. 7. Assailing the impugned judgment and order of the learned Court below it has been submitted by the learned counsel for the appellant that there is no legal evidence on the record at all to substantiate the prosecution case under Section 7(1)(a)(ii) of the E.C. Act, whereas substance of accusation was explained to the appellant for the offence under Section 9(ii) of the E.c. Act. It has also been contended that there is no evidence at all even to substantiate the allegation under Section 9(ii) of the said Act. The learned counsel for the appellant has also challenged the impugned judgment on the basis that there is total absence of mens rea on the part of the appellant in storing the aforesaid articles in his residence at Village Turundu as per the order of the Circle Officer, Kamdara from where the entire articles, as stated in the written report of the informant, were recovered. It has also been submitted that there is distance of about 9 kms between fair price shop at village Titihi and the residence of the appellant in village Turundu and there is no mode of communication at all from village Turundu to village Titihi especially in the rainy season as there are two rivulets between them and the food grains are delivered to the appellants at the circle head quarter at Kamdara and kerosene oil is delivered at village Turundu by the authorities and since it was rainy season the appellant had stored the aforesaid articles in his house in good faith as per the written permission of the Circle Officer and in the facts and circumstances of this case there is total absence of any mens rea on the part of the appellant and no offence at all is made out against the appellant in the facts and circumstances of this case. Elaborating his contention further it has been submitted for the appellant that the I.O. has to measured and weight the recovered articles from the residence of the appellant at village Turundu at the time of the seizure from there and no copy of the seizure lists was made over to the appellant for the reasons best known to the prosecution and the false implication of the appellant cannot be totally ruled out in this case. Lastly, it has been contended that Section 12-AA of the said Act provides that all offences under the said Act shall be tried in a summary way and provisions of Section 262 and 265 (both inclusive) of the Cr PC shall as far as may be applied to such trial and Section 326(3) Cr PC provides that nothing in Section 326 (1) and (2) of the Cr PC applies to summary trials. Section 326(1) of the Cr PC provides that whenever any Judge or Magistrate after having heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein and is succeeded by another Judge or Magistrate who has and who exercises such jurisdiction, the Judge or Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself. But this section does not apply to the summary trials. Admittedly, the procedure for summary trial has been adopted in this case and the evidence of the prosecution witnesses was recorded by Sri Satyendra Singh, the then Special Judge, E.C. Act and Sri RP. Verma, Special Judge, E.C. Act who has delivered the judgment of conviction in this case has only recorded the statement of the appellant under Section 313 Cr PC and has pronounced the judgment and thereby he has violated the provisions of Section 326 Cr PC and as such the impugned judgment and order rendered by him is ab initio illegal and void. In support of his contention reliance has been placed on the case law reported at 1990(1) PLJR 477 (Nathmal Kabra v. State of Bihar). 8. In support of his contention reliance has been placed on the case law reported at 1990(1) PLJR 477 (Nathmal Kabra v. State of Bihar). 8. The learned APP has submitted that the appellant has stored essential commodities in his residential house at village Turundu instead of village Titihi, where his fair price shop is located as per terms of the licence, only with a view to sell in black market and in fact some of the commodities have been sold by him in black market as lesser quantities of commodity has been recovered as per the seizure list (Ext. 3). It has also been submitted that Ext. A, the alleged order of the C.O., Kamdara is a forged and fabricated order as the Circle Officer, Kamdara is not at all competent to vary the terms of the licence as he is not the licensing authority and in this connection he has referred Clause (2) (i) of the Bihar Trade Article (Licences Unification) Order, 1984 which provides that the licensing authority means an officer not below the rank of SDO appointed by the State Government to exercise the powers and perform the duties of the Licensing Authority for different areas and under the different provisions of this Order. Lastly, it has been contended that the mens rea on the part of the appellant is very much apparent from the facts and circumstances of this case regarding the storage of the essential commodities at his house in village Turundu from where lesser quantity of the essential commodities as per the stock register has been recovered. 9. It will admit of no doubt that the fair price shop of the appellant is located at village Titihi in terms of the licence granted to him by the competent authority and the present stock position was displayed at the board at the said fair price shop which disclosed the existence of 2 quintals of sugar, 190 kg of wheat and 70 ltrs. of kerosene oil. At the time of search of the said fair price shop nothing was sold by then which is evident from the evidence of PW 3, the Informant on the basis of the cash memo and the sale register and on search no essential commodity was at all found in the said fair price shop. In course of investigation, however, 150, kg. of sugar, 95 kg. of wheat and 50 ltrs. In course of investigation, however, 150, kg. of sugar, 95 kg. of wheat and 50 ltrs. of kerosene oil were recovered from the residential house of the appellant as per seizure list (Ext. 3). It is relevant to mention at this stage that the copy of the seizure list was not delivered to the appellant when admittedly he was present at the time of the search and seizure for the reasons best known to the prosecution PW 3, the informant, in para 4 of his testimony, has deposed that sugar, wheat and rice are supplied to the licensee of fair price shop from Basia godown and kerosene oil is supplied to them either at Kamdara or in Turundu Village. His evidence is further to the effect that house of the appellant is in Village Turnudu on the side of macadamised road where any article can be carried conveniently by vehicle but there is no communication between village Turundu and village Titihi and there are two rivulets between them which normally overflow in rainy season and village Titihi situated at a distance of 9 kms. from Village Turundu. PW 3 has also deposed in para 9 of his evidence that a copy of the seizure list was neither handed over to the appellant nor his signature was obtained thereon though he was present there. He has also deposed that the I.O. has weighed /measured the commodities recovered from the house of the appellant. PW 5, the witness of the seizure, has deposed that the aforesaid recovered commodities were taken away by the I.O. to the police station and it was weighed there and seizure list was also prepared there. PW 7, the I.O., in para 4 of his evidence, has deposed that he has not weighed/measured the aforesaid commodities rather he has described the weight/measurement by guess. In view of the evidence referred to above the very search and recovery of the aforesaid commodities becomes questionable and doubtful from the house of the appellant as stated in the seizure list (Ext. 3). The evidence of the prosecution in respect thereof referred to above does not conclusively and beyond all shadows of doubt prove the fact that the commodities recovered from the house of the appellant was in lesser quantity and against the stock position. 3). The evidence of the prosecution in respect thereof referred to above does not conclusively and beyond all shadows of doubt prove the fact that the commodities recovered from the house of the appellant was in lesser quantity and against the stock position. The appellant, who has himself taken oath as DW 1, has deposed that he has stored the commodities aforesaid in his house as per written permission of the C.O. in view of the fact that it was rainy season and there was no communication for carrying the commodities from village Turundu to the fair price shop at Titihi. Ext. A is the application of the appellant on which C.Q., Kamdara has accorded permission in respect thereof. It is true that C.O. is not the competent authority to permit the appellant to store the essential commodities at his house in contravention of the terms of the licence but it is equally crystal clear that the appellant has stored the aforesaid essential commodities in his house in good faith in pursuance of the written permission of the C.O., Kamdara. It, therefore, means that there was total absence of mens rea in storing the aforesaid commodities in his house at village Turundu. The Apex Court while interpreting Section 7(1) of the E.C. Act which contains the expression "if any person contravenes any order made under Section 3" held that mens rea which is an essential ingredient of an offence was required to be proved and before an accused can be held to be guilty for having contravened any provisions of the Act or Order it must be established that he had the necessary mens rea and if on the other hand it is found that the contravention was unintentional and unknowingly made he cannot be held guilty for the contravention. The Apex Court has also held that if the contravention of Section 3 or any order framed thereunder was unintentional and the person concerned had taken all reasonable care and was carrying on business in a bona fide manner then in the eyes of law there has been no contravention so as to visit the person with consequences thereof. The Apex Court has also held that if the contravention of Section 3 or any order framed thereunder was unintentional and the person concerned had taken all reasonable care and was carrying on business in a bona fide manner then in the eyes of law there has been no contravention so as to visit the person with consequences thereof. In view of the evidence referred to above and absence of mens rea on the part of the appellant in storing the essential commodities at his house in village Turundu and not in his fair price shop under the facts and circumstances of this case coupled with absence of measurement of the aforesaid articles at the place of the recovery by the I.O., the prosecution case does not at all stand substantiated. 10. There is no denying the fact that the procedure for summary trial has been adopted in this case and the evidence of the prosecution witnesses was recorded by Sri Satyendra Singh, the then Special Judge, E.C. Act but the impugned Judgment of conviction has been pronounced by his successor Court i.e., Sri R,P. Verma, Special Judge, E.C. Act. Now a pertinent question arises as to whether the impugned judgment stands vitiated being contrary to the provisions laid down in Section 326(3) Cr PC or not. Section 12-AA of the Essential Commodities Act, 1955 provides that notwithstanding anything contained in the Cr PC all offences in this Act shall be triable by the Special Court constituted for the area in which the offence has been committed and shall be tried in a summary way and the provisions of Sections 262 to 265 (both inclusive) of the Cr PC shall as far as may be applied to such Act. Section 326 of the Cr PC is relevant In this connection which is quoted below:-- "Conviction or commitment on evidence partly recorded by one Magistrate and partly by another,--(1) Whenever any (Judge or Magistrate), after having heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein and is succeeded by another (Judge or Magistrate) who has and who exercises such jurisdiction, the (Judge or Magistrate) so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself: Provided that if the succeeding Magistrate is of opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the Interests of justice, he may resummon any such witness, and after such further examination, cross-examination and re-examination, if any, as he may permit, the witness shall be discharged. (2) When a case is transferred under the provisions of this Code (from one Judge to another Judge or from one Magistrate to another Magistrate), the former shall be deemed to cease to exercise jurisdiction therein, and to be succeeded by the latter, within the meaning of Sub-section (1). (3) Nothing in this section applies to summary trials or to cases in which proceedings have been stayed under Section 322 or in which proceedings have been submitted to a superior Magistrate under Section 325." 11. There is no controversy that the general principle of law Is that a Judge or Magistrate can decide a case only on the basis of the evidence taken by him. The provisions as laid down under Sub-section (1) of Section 326 of the Code of Criminal Procedure, shall not be applicable in the present case because the summary trial of the present case was to be conducted by the Special Judge. The successor, Special Judge had no authority under the law to proceed with the trial of the case from the stage at which his predecessor had left It. Therefore, it has to be held that the conviction recorded by the successor Special Judge against the appellant, upon the evidence recorded by his predecessor, without recalling the witnesses, cannot be upheld as the successor- Special Judge had not himself heard the evidence. The illegality or irregularity cannot be cured because the question arises for the competency of the Special Judge. The illegality or irregularity cannot be cured because the question arises for the competency of the Special Judge. According to the cardinal principle of law, it is a right of an accused that his case be decided by a Judge, who has heard the whole of it. Therefore, the impugned judgment stands vitiated and is equally ab initio illegal and void. 12. The learned Court below failed to meticulously consider the facts, circumstances and the materials on the record as well as the application of Section 326, Cr PC read with Section 12-AA of E.C. Act and has, accordingly, erred in coming to the finding of the guilt of the appellant. 13. There is merit in the appeal and it succeeds. The appeal is hereby allowed. The impugned judgment and order is hereby set aside. The appellant is not found guilty and he Is, accordingly, acquitted and discharged from the liability of his bail bond.