Kapil Deo Sahni vs The State of Bihar

I.P. Singh, J.—The sole Appellant has been convicted u/s 7 of the Essential Commodities Act and has been sentenced to undergo rigorous imprisonment for three months.

The prosecution case, in brief, is that on 8.8.1984 Bijay Kumar Sinha, Deputy Collector-cum-Assistant District Supply Officer, Sikrahana at Motihari raided the fair price shop of Appellant, Kapildeo Sahni. It has been stated the consumers complained him at the time of raid that the Appellant did not supply to them sugar though entry was made in the ration card. It was also complained that the Appellant supplied kerosene oil in less quantity but double entry was made in the ration card. Thereafter the Addl. District Supply Officer got the list prepared which revealed that the Appellant entered the supply of the articles in the ration card but actually no supply was made and no cash-memo was issued. In some cases quantity of supply was less than the quantity shown in the cash-memo. A written report was submitted by the Addl. District Supply Officer to the Officer Incharge, Chakiya on the basis of which a formal F.I.R. was drawn up. After completion of investigation the police submitted charge sheet against the Appellant. Thereafter cognizance was taken and the trial concluded with the result as indicated above. Hence this appeal.

The Appellant pleaded not guilty.

The prosecution in support of its case has examined altogether 16 witnesses. P.W. 1 is Pradeep Sahni, P.W. 2 is Mohit Sahni. P.W. 3 is Chulhai Sahni. P.W. 4 is Singesar Sahni. P.W. 5 is Ram Yoti Sahni. P.W. 6 is Hulash Sahni. P.W. 7 is Lagan Sahni. P.W. 8 is Sadhu Sahni. P.W. 9 is Punit Sahni. P.W. 10 is Chandra Sahni. P.W. 11 is Narsing Sahni. P.W. 12 is Faguni Sahni. P.W. 13 is Ramchandra Sahni. P.W. 14 is Bijay Kumar Singh, Executive Magistrate. P.W. 15 is Jawahar Lal Sah. P.W. 16 is Kamod Prasad. Out of 16 witnesses, 11 witnesses i.e. P.Ws. 2, 3, 4, 5, 6, 7, 8, 9, 10, 12 and 16 were declared hostile.

P.W. 14 the informant has fully supported the case of the prosecution. According to him the Addl. District Supply Officer raided the shop of the Appellant under Ahiraulia Gram Panchayat alongwith Uma Nath Singh Supply Inspector. According to him the consumers complained to him that the Appellant supplied articles in less quantity and no cash memo was sued. They also complained that they did not get sugar. He has further stated that he checked the documents of the Appellants and prepared the statements after comparing the documents from the statement of the consumers. He has also proved his signature which has been marked as Ext. 1.

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 office could not have decided the case the evidence recorded by his predecessor In this regard he has relied on a decisional recorded in Vyas Sah Vs. The State of Bihar, . It is obvious that order Section 262 of the Code of Criminal Procedure the procedure specified for the (sic) of summons case has to be followed in summary trials and Section 264 of the Code of Criminal Procedure lays down that Magistrate shall record the substance the evidence. Thus it is evident that in summary trial only substance of evidence it to be recorded which does not record entire statement of the witness instead only records the substance of the statement of the witness what he stated before the Court. Therefore, the judge or the Magnate who has recorded such substance evidence is in a position to appreciate evidence led before him and the scissor Judge or Magistrate cannot appreciate the evidence only on the basis of despondence recorded by his predecessor. As which it appears that why the provisions of Sub-sections (1) and (2) of Section 326 of the Code of Criminal Procedure have not made applicable to summary trials.

In the case in hand the evidence as recorded by the Special Judge, Shri human Jee Jha and the judgment was recovered by another Special Judge Shri (sic) modar Prasad who has not himself receded the evidence of the witnesses. As which he could not have proceeded from stage where his predecessor has left case and could not have recorded credence recorded by his predecessor. Therefore, the judgment and order is visited on account of said illegality and the (sic) is not sustainable in the eye of law.

Accordingly, the conviction and s�ance passed by the court below is set (sic). The Appellant is acquitted of the reared named against him. He is discharged from the liability of the bail bond.

In the result, this appeal is allowed.