Suresh Prasad vs The State of Bihar

Abhijit Sinha, J.—The sole appellant aggrieved by the Judgment dated 21.9.1992 and order dated 24.9.1992 passed by Sri Jiwan Tigga, 1st Additional District and Sessions Judge-cum-Special Judge, Nalanda in G.R. Case No. 1377 of 1986 arising out of Chandi P.S. Case No. 272 of 1986 has preferred this appeal. By the impugned Judgment the appellant on being found guilty of an offence u/s 7 of the Essential Commodities Act (hereinafter referred to as ''the E.C Act'') for violation of the provisions of Bihar Trade Articles (Licences Unification) Order, 1984 (hereinafter referred to as the Unification Order'') has been sentenced to undergo rigorous imprisonment for one year and also to pay a fine of Rs. 20,000/- in default whereof he was to suffer further rigorous imprisonment for three months. The prosecution is based on the written report submitted on 29.10.1986 by one Rama Kant Prasad, Marketing Officer, Chandi, who alleged, inter alia, that in keeping with the directions of the District Magistrate, Nalanda, he intercepted a trekker bearing Registration No. BHY 2473 in which 20 containers of Kerosene Oil. i.e., about 1000 litres were loaded. Since no permit or cash memo could be produced by the appellant and one Arvind Prasad, Driver of the vehicle, it was presumed that the same was being transported for clandestine purposes and accordingly Chandi P.S. Case No. 272 of 1986 was registered u/s 7 of E.C. Act for violation of the provisions of the Unification Order.

The defence plea is one of innocence and false implication.

I have perused the materials available on record and I am firmly of the opinion that this appeal must be allowed, the reasons wherefore are noted hereinbelow.

It will not be out of place to mention here that in the original Unification Order no storage limit has been fixed and in that respect there are a number of decisions of this Court to the effect that in the absence of storage limit, the Unification Order was not workable. It must also be noted that for the first time a notification was issued on 17.10.1988 by which storage limit of certain goods in relation to class of cities were fixed. However, neither in the Unification Order nor in the aforesaid notification was it mentioned as to what is the meaning of a ''B'' Class city or ''C Class city. It was on this basis that it had been held by this Court that the Unification Order was not workable. In this connection reference may gainfully be made to the decision of M/s Banarsilal Jhunjhunwala and Sons Vs. The South Bihar and Chotanagpur Area Electricity Board, Ranchi and Others, and Vijay Kumar Vs. State of Bihar, . It was on this basis that it had been submitted that there cannot be any prosecution unless the same is defined by a notification by the State Government.

There is yet another aspect which requires consideration. From a perusal of the records of the court below it appears that whereas the depositions of the witnesses were recorded by one Officer the Judgment was pronounced by Sri Jiwan Tigga, his successor in office. This is clearly in violation of the provisions of Section 12AA(i)(f) of the E.C. Act which provides that the cases under the E.C. Act are triable in the summary manner as provided under Sections 262 to 265 of the Cr.P.C.

Section 326(1) and (2) of Cr.P.C. provides that evidence recorded by a Judge can be considered by the successor Judge for passing a judgment. However, subsection (3) of Section 326 excludes summary trial from the scope of Section 326. Where a Magistrate or a Judge tries a case summarily and records evidence, his successor cannot proceed from that stage onwards even if consented to by Counsel of both sides. The irregularities is not curable in view of Section 461 of Cr.P.C.

Due regard being had to the facts and circumstances of the case the judgment of conviction and order of sentence, recorded by Sri Jiwan Tigga cannot be sustained in the eye of law. In the result the appeal is allowed and the impugned judgment and order are set aside. The appellant is discharged from the liabilities of his bail bond.