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2007 DIGILAW 683 (PAT)

Rajgrjhi Raut v. State Of Bihar

2007-04-04

ABHIJIT SINHA

body2007
Judgment Abhijit Sinha, J. 1. Aggrieved by the judgment dated 28.7.1992 and order dated 29.7.1992 passed by Sri Moti Lal Hasdah, the then Special Judge, (E.C. Act) West Champaran at Bettiah passed in G.R. No. 1720/86 corresponding to T.R. No. 23 of 1989 arising out of Manjhaulia PS. Case No. 105 of 1986, the sole appellant, Rajgrihi Raut, has preferred this appeal. By the impugned judgment the appellant has been found guilty of the offence under Section 7 of the Essential Commodities Act (hereinafter referred to as the "E.C. Act") for violation of condition nos. 5(1) and 9 of the license issued to him under Bihar Trade Articles (Licenses Unification) Order, 1977 and has been sentenced to undergo simple imprisonment for 3 months. 2. It appears that informant Vidyanand Jha, the Supply Inspector, alongwith the Block Supply Officer inspected the shop premises of the accused on 21.12.1986 at about 8.45 A.M. and found that the shopkeeper, namely, Rajgrihi Raut, a licensee dealer under the Public Distribution System, had not displayed the price and stock on the Board. On verification of the stock in the shop, stock of sugar and kerosene oil was found to be nil and no other material was available in stock. The accused is said to have produced the stock as also sale register of kerosene oil and sale register of sugar. He also produced cash memoes in three volumes which were used upto 28.11.1986. However, he did not produce the stock register of sugar notwithstanding a demand being made therefor and a suspicion arose that the sugar had been sold somewhere. On inquiry the accused is said to have stated that he had not lifted kerosene oil and sugar in the current month i.e. December 1986 on which the informant contacted the wholesale dealer M/s Gupta Trading Company and found that the accused had been supplied 8 quintals of sugar on 17.12.1986. The informant and the Block Supply Officer also inspected the register of M/s Gupta Trading Company and found that the accused had lifted 8 quintals of sugar on 17.12.1986 and in token of the same he had put his signature on the receipt book of the wholesale dealer but his signature appeared to be different from his signature which he made on seizure list etc. It is further said that the description of Rajgrihi Raut as furnished by the wholesale dealer tallied with Maharaj Raut the son of Rajgrihi Raut and accordingly it was concluded that Maharaj Raut had lifted sugar in the name of his father and had assisted his father in selling the sugar in black market. The informant is said to have seized the registers and the papers produced by the accused under a seizure list. 3. It appears that the substance of accusation was explained to the accused persons regarding violation of the provisions of the Bihar Essential Articles (Display of Price and Stock) Order, 1977 and for violation of conditions 5 and 9 of the license issued to Rajgrihi Raut under the Bihar Trade Articles (Licenses Unification) Order, 1984 (hereinafter referred to as "the Unification Order"). 4. The learned Special Judge having considered the materials available on record and on hearing the submission advanced by the learned counsel for the parties came to the conclusion that the charge of violating the Bihar Essential Articles (Display of Price and Stock) Order, 1977 had failed as no sanction of concerned authority for prosecution as required under Clause (6) of the said Order had been obtained. The Special Judge further found Maharaj Raut not guilty of the offence under the E.C. Act as also the Unification Order and acquitted him of the same. However, the appellant herein was held to be guilty as stated above and sentenced accordingly. 5. The findings recorded by the Court below was sought to be assailed by the learned counsel for the appellant on several grounds. However, as I am of the view that this appeal must succeed on the grounds mentioned hereinbelow; 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. 6. Sec.12A of the E.C. Act provides for the constitution of Special Courts for the purpose of providing speedy trial of the offences under this Act by notification in the official gazette and Sec.12AA reads as follows:- "12AA. 6. Sec.12A of the E.C. Act provides for the constitution of Special Courts for the purpose of providing speedy trial of the offences under this Act by notification in the official gazette and Sec.12AA reads as follows:- "12AA. Offences triable by Special Courts-(1) Notwithstanding any- thing contained in the Code, (a) all offences under this Act shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the High Court;" (f) all offences under this Act shall be tried in a summary way and the provisions of Sections 262 to 265 (both inclusive) of the Code, shall as far as may be, apply to such trial: Provided that in the case of any conviction in a summary trial under this Section, it shall be lawful for the Special Court to pass a sentence of imprisonment for a term not exceeding two years." 7. It, thus, follows that Special Courts have been constituted for the purpose of summary trial of offender and for that special procedure has been provided for in place of the procedure laid down under the Code of Criminal Procedure. Thus, Sec.12AA of the E.C. Act is a special provision and for taking recourse to the said provision conditions prescribed therein must be followed. 8. It appears from the perusal of the records of the Court below that the deposition of RWs. 1 to 5 were recorded by Sri S.K. Gupta, the then Special Judge, E.C. Act cases, who also recorded the statement of the accused under Sec.313 Cr.P.C. and the testimony of D.W. 1 in between the period 26.7.1989 to 28.7.1990. Thereafter the order-sheet of the Court dated 6.9.1990 reveals that the Presiding Officer had been transferred and the judgment and order as stated above were passed by Sri Moti Lal Hasdah which would mean that the special procedure of summary trial had not been followed. Sub- section (3) of Sec.326 Cr.P.C. specifically makes inapplicable the provisions of sub-sections (1) and (2) of Sec.326 Cr.RC. in summary trials. Sub- section (3) of Sec.326 Cr.P.C. specifically makes inapplicable the provisions of sub-sections (1) and (2) of Sec.326 Cr.RC. in summary trials. Summary procedure insists 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. 9. Obviously the rationale behind the aforesaid view appears to be that under Sec.262 Cr.P.C. the procedure specified for the trial of summons cases has to be followed in summary trials and Sec.264 Cr.RC. 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 of what he stated before the Court. Therefore, the Judge or the Magistrate, who has recorded the substance of statement is the only person in a position to appreciate the evidence led before him and the successor Judge or Magistrate who has not had the opportunity of recording substance of statement of the witnesses cannot appreciate the evidence only on the basis of the substance of statement recorded by his predecessor. 10. In the present case the evidence was recorded by the predecessor of the Special Judge who heard the arguments and delivered the judgment. As the Special Judge who delivered the judgment had not recorded the evidence himself 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 passed by the succeeding Special Judge on the basis of the evidence recorded by his predecessor was illegal which apparently vitiates the trial. 11. Ordinarily such cases are remanded back to the trial court for de novo trial. But in the instant case the occurrence is of the year 1986 and the impugned judgment and order is of the year 1992. Almost 20 years have already passed. In the aforesaid circumstances it would not be expedient to order for de novo trial so as to compei the appellant to suffer another round of protracted litigation and indelible trial. 12. The whole trial having been vitiated as stated above the appeal succeeds. Almost 20 years have already passed. In the aforesaid circumstances it would not be expedient to order for de novo trial so as to compei the appellant to suffer another round of protracted litigation and indelible trial. 12. The whole trial having been vitiated as stated above the appeal succeeds. Accordingly the impugned judgment and order passed in G.R. No. 1720/86 corresponding to T.R. No. 23 of 1989 arising out of Manjhaulia RS. Case No. 105 of 1986 are hereby set aside. The appellant is discharged from the liability of his bail bonds.