Raj Kumar Agrawal and Another vs The State of Bihar

S.N. Pathak, J.—This appeal is directed against the order of conviction and sentence passed by Sri B.R Singh, Special Judge, Purnea in Special Case No. 10 of 1903. The Appellants were convicted u/s 7 of the Essential Commodities Act (hereinafter, in short, referred to as the ''Act'') and were sentence to undergo R.I. for six months each. The judgment was delivered on 17th March 1990.

The Appellants'' lawyer contended before me that the offences under the Act have to be tried by the Special Judge in a summary way and the evidence recorded by the predecessor Judge, cannot be used by the successor Judge to base the conviction of the accused. In the instant case, also same has occurred. So the order of conviction and sentence recorded by Sri B.R Singh is bad in law. Moreover on merit also the charge was not sustainable because the Appellants were found carrying a truck loaded with Mung from Siliguri to Calcutta and when the truck was passing through the State of Bihar on a particular road, the driver was intercepted, and the truck along with consignment was seized. It was alleged that the consignment was being carried for sale in the State of Bihar but there is no allegation that the truck driver or the Appellant No. 1 was selling any part of the consignment in Bihar. So being found just in possession of concerned commodity, the Appellants committed no offence and, in this view of the matter also, their conviction was bad.

Section 326 of the Code of Criminal Procedure (hereinafter to be referred to as the ''Code'') has empowered a Magistrate to record an of conviction on evidence partly recorded by the predecessor. This Section has clearly mentioned in Sub-section (3) that the aforesaid provision under the main Section is not applicable to trials held in a summary manner. u/s 12-AA(f) of the Act, all offences under the Act are to be tried by the Special Judge in a summary way and the provisions of Sections 262 to 265 of the Code shall apply to such trials. That means, when the Special Judge tries such offences like summary trial, any evidence recorded by the predecessor Judge, cannot be used by the successor to hold the accused guilty. In the instant case it does not appear that Sri B.P. Singh who passed the judgment of conviction and sentence has recorded any part of its evidence and it was submitted before me by the Appellants'' lawyer that no evidence at all was recorded by Sri B.P. Singh. So it was submitted that the order of conviction recorded by Sri B.P. Singh was bad in law.

So far this contention of the Appellants'' lawyer is concerned, there is no escape from the legal proposition and especially in view of law laid down u/s 32 of the Code, after its amendment in the year 1978 that any Judge or Magistrate may proceed to pronounce judgment on the evidence partly recorded by the predecessor judge or the Magistrate; but it was Section 326(3) of the Code which has exempted summary trials from the amending Section. In such circumstances, the order of conviction and sentence recorded by Sri B.P. Singh, Special Judge, E.C. Act was certainly bad in law.

Now the question is whether the case should be remanded back to the Special Judge for a fresh trial or not. The case was that the Appellant was carrying goods through the State of Bihar, he had failed to produce his licence for carrying trade in the State of Bihar. The trial court held that the witnesses of the prosecution deposed that the Appellants had their business establishment even in the State of Bihar but the evidence of the prosecution witnesses in view of the licence produced by the accused-Appellants itself was, perhaps, not reliable unless the prosecution could produce licence of the accused for trade in Bihar. If it is assumed that the Appellant No. 1 was carrying trade in Bihar without licence, the point is whether he was found selling or negotiating for, sale of the consignment loaded on his truck. (He had produced licence for business in West Bengal) In this connection, there is no evidence. So the accused-Appellants, in substance, were found to be in possession of essential commodity (Mung) just in transit and loaded on a truck. So perhaps, the accused would not be deemed to have been violating any provision of the Act, except that if it was held that he had no permit to ply any vehicle in the State of Bihar, he shall be prosecuted under some other Act, but certainly not under the E.C. Act.

In the circumstance, I do not think it is expedient to remit the case back to the trial court for a fresh decision/trial.

In the result, it is held that the order of conviction and sentence recorded by Sri B.P. Singh, Special Judge, Purnea was bad in law and there is no alternative but to set aside the impugned order of conviction.

This appeal is accordingly, allowed and the order of conviction and sentence is set aside. The accused-Appellants shall stand acquitted of the liabilities of bail bonds.