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2007 DIGILAW 652 (PAT)

Shrikant Singh v. State Of Bihar

2007-03-30

ABHIJIT SINHA

body2007
Judgment Abhijit Sinha, J. 1. Aggrieved by the judgment and Order dated 25.11.1992 passed by Sri Kapileshwar Prasad, Special Judge, (E.C. Act) Rohtas at Sasaram in G.R. No. 3016/75 of 1987/90 arising out of Kochas P.S. case No. 77/87, the sole appellant herein has preferred this appeal. By the impugned judgment and order, the learned trial Court found the accused guilty under Section 7 of the Essential Commodities Act (hereinafter referred to as the "E.C. Act") for violation of the provisions of the Bihar Trade Articles (Licenses Unification) Order, 1984 (hereinafter referred to as "the Unification Order") and has sentenced him to undergo rigorous imprisonment for six months and also pay a fine of Rs. 500.00 in default whereof to suffer simple imprisonment of further two months. 2. The prosecution case is based on the written report submitted by one Surajdeo Tiwary, Supply Inspector, Kargahar (P.W. 1) alleging inter alia, that earlier, that day (17.12.1987) he along with the Marketing Officer, Kargahar (P.W. 2) raided the business premises of the appellant herein and in course of search in the presence of the appellant and others 400 liters of Kerosene oil stored in two drums was found in the business premises for which neither any document or license for dealing in the same could be produced. The recovered oil was seized under a seizure list prepared in the presence of Harbansh Singh (P.W. 3) and Radhika Pal (P.W. 4) and handed over to Harbansh Singh on a jimmanama. The written report requested for taking legal action against the accused under Section 7 E.C. Act for violation of the Provisions of Bihar Kerosene Dealers Licensing Order, 1965. 3. The findings recorded by the Court below was sought to be assailed by the learned counsel for the appellant on more than one ground. However, as I am of the view that this appeal is fit to be allowed on one ground alone as discussed herein below; it would merely be a matter of academic discussion to go into the merits of all the contentions raised by the learned counsel for the appellant. 4. However, as I am of the view that this appeal is fit to be allowed on one ground alone as discussed herein below; it would merely be a matter of academic discussion to go into the merits of all the contentions raised by the learned counsel for the appellant. 4. It appears from perusal of the records of the Court below that the evidence of P.W. 1 (Surajdeo Tiwary) and P.W. 2 (Raj Dayal Choudhary) were recorded by Sri Gauri Shankar Choubey, the then Special Judge on 17.8.1989 and the testimony of the remaining witnesses were recorded by the successor Court of Sri Kapileshwar Prasad, who also delivered the judgment of conviction and sentenced the accused to substantive punishment. It is the stand of the learned counsel for the appellant that in the present case the process of trial was summary proceeding and it was necessary that the same Special Judge who had recorded the 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. This contention has been raised by the learned counsel in view of the provisions of sub Section (3) of Sec.326 Cr.P.C. which specifically makes provision of Sub Section (1) and (2) of Sec.326 Cr.P.C. in applicable in summary trials. 5. Sec.12 AA of the E.C. Act, lays down the procedure for trial by Special Courts and sub Section (f) thereof lays down that all offences under this Act shall be tried in a summary way and the provisions of Sections 262 to 265 Cr.P.C. shall, as far as may be, applied to such trial. 6. As stated earlier the evidence of P.Ws. 1 and 2 was recorded by one Special Judge and the remaining evidence and the judgment and order were pronounced by his successor in office. In that view of the matter the judgment delivered by the succeeding Special Judge on the basis of evidence recorded by his predecessor was illegal and the trial is vitiated on account of the said illegality. 7. Ordinarily such cases are remanded back to the trial court for de novo trial. However, in the instant case the occurrence is of the year 1987and the judgment is of the year 1992. Almost 20 years have already elapsed. 7. Ordinarily such cases are remanded back to the trial court for de novo trial. However, in the instant case the occurrence is of the year 1987and the judgment is of the year 1992. Almost 20 years have already elapsed. In the aforesaid situation it does not appear expedient to order for de novo trial so as to compel the appellant to suffer another agony and ordeal of trial after a lapse of almost 20 years. 8. There is another aspect of the matter. Whereas the Supply Inspector submitting the written report had requested for taking action against the accused under Section 7 of the E.C. Act for violation of the provisions of Bihar Kerosene Dealers Licensing Order, 1965, the conviction is for violation of the provisions of the Unification Order which to my mind is not permissible. 9. In view of the discussion made above the appeal is allowed and the impugned judgment and order are hereby set aside. The appellant is discharged from the liabilities of his bail bond.