CRIMINAL APPEAL (S.J) NO. 296 OF 1993 *** Against the judgment and order dated 30.08.1993 passed in Special Case No. 30 of 1989 by the 1st Additional Sessions Judge-cum-Special Judge, Saharsa. *** 1. Chhedi Bhagat, 2. Baldeo Uraon, 3. Abdul Wahab . . . . . . . . . . . Appellants. Versus The State of Bihar . . . . . . . . . . . Respondent. For the Appellants :M/s Bam Bahadur Jha & Gajendra Kumar Jha, Advocates. For the Respondent : Mr. Ali Mozaffar, A.P.P. *** P R E S E N T *** HON’BLE MR. JUSTICE SYED MD. MAHFOOZ ALAM S.M.M.ALAM. J. This Criminal Appeal is directed against the judgment and order dated 30.08.1993 passed by Shri Sashi Kumar Choudhary, 1st Additional Sessions Judge-cum-Special Judge, Saharsa in Special Case No. 30 of 1989, arising out of Chhatapur P.S. Case No. 71 of 1989 whereby he has been pleased to convict all the three appellants under section 7 of the E.C. Act and sentenced each of the appellants to undergo rigorous imprisonment for a period of nine months and to pay a fine of Rs. 500/-each. 2. The prosecution case as per the fardbeyan of constable no. 60 Sohan Das (P.W.6) posted at Rajeshwari O.P. within 2 Chhatapur P.S. recorded by A.S.I. R.K. Sinha of Rajeshwari O.P. on 11.08.1989 at 19.00 hours, in brief is that the informant (constable Sohan Das) along with other constables and Chaukidar were on patrolling duty at Gochar Hatia. In the meantime, he saw one bullock- cart coming from opposite direction on which two persons were sitting but on seeing the informant and other police personnel, one of them fled away. On suspicion, the informant intercepted the bullock- cart and on search he found 9 tins of kerosene oil concealed on the said bullock-cart. On interrogation the bullock-cart driver disclosed his name as Chhedi Bhagat and further disclosed that the man who fled away was Raj Kumar Sah and the kerosene oil belonged to the said Raj Kumar Sah. On demand Chhedi Bhagat (driver of the bullock-cart) failed to produce any paper. At the same time, the informant saw two other persons coming on two different bicycles and each of them was carrying two tins on his respective bicycle containing 30 liters of kerosene oil. On interrogation, both the persons disclosed their names as Abdul Wahab and Baldeo Uraon. They also failed to produce any paper. Thereafter the informant apprehended all the three persons and seized the tins of kerosene oil kept on bullock- cart as well as on two bicycles. After that he produced all the three persons before A.S.I. R.K. Sinha of Rajeshwari O.P., who prepared a seizure-cum-production list (Ext.2) of the seized articles. Thereafter he forwarded the fardbeyan as well as seizure-cum-production list to 3 Officer-in-charge of Chhatapur police station along with the apprehended accused persons. On receipt of the fardbeyan of the informant, Chhatapur P.S. case no. 71 of 1989 under section 7 of the E.C. Act was instituted against the appellants. The investigation of the case was handed over to A.S.I. R.K. Sinha, who investigated the case and submitted charge-sheet against the appellants, on the basis of which cognizance was taken by the Special Judge and vide order dated 12.06.1990 substance of the accusation was explained to the accused persons for violating the provisions of Bihar Kerosene Dealer’s Licensing Order, 1963 and committing an offence punishable under section 7 of E.C.Act. The appellants denied the accusation and they were put on trial and by the impugned order they were convicted and sentenced as stated above. 3. During the course of argument the learned advocate of the appellants raised two legal points: The first contention of the appellants was that under section 12 of the Bihar Kerosene Dealer’s Licensing Order, 1963, a police officer below the rank of Sub- inspector is not empowered to make search and seizure of any place, premises, vehicle or vessel and therefore, the entire search and seizure made by informant, who happens to be a constable, is illegal. His second contention was that the learned Special Judge had adopted summary proceeding and in summary proceeding the successor court is not empowered to act on the evidence recorded by his predecessor. 4 In this regard he has referred section 326(3) of the Code of Criminal Procedure. 4. From perusal of Section 12 of Bihar Kerosene Dealer’s Licensing Order, 1963 it is apparent that a police officer below the rank of Sub-inspector is not entitled to conduct search and seizure of any place, premises, vehicle or vessel in which he has reason to believe that any articles was being carried in contravention of any provisions of Bihar Kerosene Dealer’s Licensing Order. In view of clear provision of law as stated above, I am of the view that the search and seizure made by the informant and the recovery of kerosene oil from the bullock-cart as well as two bicycles was illegal, without jurisdiction and violative of provisions of section 12 of Bihar Kerosene Dealer’s Licensing Order, 1963. 5. As regards the second contention, it appears from the record that the trial had commenced in presence of another Special Judge whereas the judgment was delivered by another Special Judge. The learned advocate of the appellants has relied upon several decisions of this Court in which it has been held that in summary trial final finding recorded by successor Special Judge on the strength of evidence partly recorded by predecessor Judge is not permissible under section 326(3) of the Cr.P.C. The learned advocate has placed reliance upon the following decisions: 5 (1) 2002(2) P.C.C.R. page 29 (Mangal Sah, appellant Vs. The State of Bihar, respondent), (2) 2002(2) P.C.C.R. page 139 (Gayatri Devi and another, appellants Vs. The State of Bihar, respondent), (3) 2002(2) P.C.C.R. page 207 (Jawahar Prasad, appellant Vs. the State of Bihar, respondent), (4) 2002(2) P.C.C.R. page 88 ( Puni Sahu, appellant Vs. the State of Bihar, respondent) and (5) 2008(2) P.L.J.R. page 604 (Dhurun Nath Chaubey, appellant, Vs. The State of Bihar, respondent). 6. I have gone through the above mentioned decisions and I have come to the conclusion that under section 326(3) of Cr.P.C. the summary trial cases had to be concluded by Special Judge who has initiated the trial and the successor Special Judge has no authority under the law to proceed with the trial of the case from the stage at which his predecessor had left it. From perusal of the record it shows that the trial was initiated by another Special Judge whereas the judgment was delivered by another Special Judge. There is no dispute that the Special Judge had adopted the procedure of summary trial by explaining accusation and therefore, as per provision under section 326(3) of Cr.P.C., the successor court was not entitled to proceed with the trial. Under the circumstances mentioned above, I am of the view that the entire trial is against the procedure provided under the law and so the conviction of the appellant under section 7 of the E.C. Act cannot be sustained. 6 6. In the result, I find merit in this appeal and as such, the same is hereby allowed. The conviction and sentence passed against the appellants under section 7 of the E.C. Act are set aside and the appellants are acquitted of the charge of section 7 of the E.C. Act. The appellants are on bail, as such they are discharged from the liabilities of their bail bonds. (Syed Md. Mahfooz Alam) Patna High Court, Patna Dated, the 18th July, 2008 N.A.F.R./Uday/