Criminal Appeal (SJ) No.75 of 1999 ~~~~~~ Against the judgment of conviction and order of sentence dated 31.03.1999 respectively passed by Sri Kali Dayal Mishra, learned Special Judge, E. C. Act, Aurangabad in G. R. No. 08 of 1989. ~~~~~~ Dasarath Sao, Son of Late Gope Sao, Resident of village Sheoganj, Police Station – Madanpur, District – Aurangabad. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. ~~~~~~ Appearance : For the Appellant : Mrs. Rina Sinha, Amicus Curiae. For the Respondent : Mr. Parmeshwar Mehta, A.P.P. ~~~~~~ P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD GOPAL PRASAD, J. Heard learned amicus curiae and learned counsel for the State. 2. The appellant has been convicted under Section 7 of the Essential Commodities Act and sentenced to undergo simple imprisonment for one year with a fine of Rs.1,000/- and in default of payment of fine to undergo simple imprisonment for two months. 3. From perusal of the records, it appears that the case was initiated on the report of Sri Kailash Prasad Sao, Senior Marketing Officer about the recovery of 40 bags of wheat and 17 bags of rice containing 40 quintals of wheat and 17 quintals of rice found in the shop of the accused person while 70 bags of wheat containing 70 quintals of wheat was found from the godown of the accused and it appears that after lodging of the First Information Report, charge-sheet submitted, cognizance taken and the case proceeded after framing of the charge. 4. However, during the trial nine witnesses were examined between a period 18th July, 1990 to 26th September, 1991. However, the order of conviction was recorded by order dated 31.03.1999 apparently by a Presiding Officer of the Special Judge who has not recorded the evidence in the said trial. 5. However, it is pertinent to mention that Section 12AA of the Essential Commodities Act confers that a proceeding under the Essential Commodities Act is a summary proceeding and Section 326 of the Code of Criminal Procedure provides that in a summary trial an evidence recorded by the Presiding Officer of the Court shall not be considered by the predecessor unless the witnesses who have deposed in the case or whose evidence has been recorded is re-examined or re- summoned as in summary proceeding the Presiding Officer is only required to record the substance of the evidence. 6. However, having regard to the facts and circumstances the order of conviction has been recorded by the Special Judge on the evidence of the witnesses whose evidence was recorded by his predecessor and the said evidence have been considered without re-summoning or calling the witnesses. Hence, the order of conviction and sentence recorded by the Presiding Officer on the basis of the evidence recorded by his predecessor is not sustainable and it is hereby set aside. 7. However, having regard to the fact that the occurrence is of the year 1989 and more than 20 years have already elapsed and hence in the interest of justice, it is not proper to order for de novo trial and hence the impugned order is hereby set aside. This appeal is allowed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 15th December, 2011. N.A.F.R./Kundan.