Criminal Appeal (SJ) No.218 of 1996 **** Against the judgment, dated 31.08.1996, passed by Sri Ibrar Hassan, Special Judge, Gaya, in Tr. No. 55 of 1996 **** Babulal Prasad, sonof late Phaguni Mahto, resident of village Juri, P.S. Bakey Bazar, district Gaya .. Appellant Versus The State Of Bihar .. Respondent **** For the Appellant .. Mr. Ashok Priyadarshi, Adv. For the Respondent .. Mr. Sujit Kumar Singh, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard the counsel for the appellant and the State. 2. This appeal has been filed under Section 7 of the Essential Commodities Act (hereinafter referred to as, ‘the Order’) for alleged violation of the Bihar Trade Articles (Licenses Unification) Order, 1984, (hereinafter referred to as, ‘the Order’) and the appellant has been sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.500/- and in default to undergo further rigorous imprisonment for six months. 3. The first information report was lodged on the statement of Sardhari Lal Singh, I/C Block Supply Officer, Amas, 2 alleging therein that the appellant granted licence no. 24 of 1985 with regard to run a fair price shop on plot no. 1106 under khata no. 67 with specific boundaries at village Persawa. It was found that the same shop is not run of the premises for which the licence was granted and it is alleged that without taking the permission of the competent authority the appellant has shifted the shop to village Bankey Bazar for which the licence has not been granted and the shop is at Bankey Bazar and there is violation of Unification Notification. It has, further, been alleged that all the consumers of shop are residents of Persawa, which is at a distance of 5 K.M. from Bankey Bazar and details of commodity supply to appellant given it is not possible for consumers to know about shop and lifting of commodities to the appellant is selling the articles in black marketing at a higher price. 4. There was written report of the Block Development and Supply Officer and after investigation the charge sheet was submitted, cognizance taken after framing of charge trial proceeded. During trial six witness examined by prosecution and two from defence. On trial the order of conviction and sentence recorded on ground that the appellant had shifted his shop to a place in a village Bankey Bazar for which neither licence was granted nor permission was taken, however, the charge for black marketing was not established and, hence, the appellant was exonerated from that charge. 5. The learned counsel for the appellant, however, contended that the order of conviction rests for the violation of change 3 in place of shop for which the licence was not granted though appellant exonerated from charge of selling the goods in black market. It has, further, been contended that the violation of changing the place of business from premises for which the licence granted is not an offence under the Act. Section 3 of the Act provides the violation regarding the supply and distribution of the food grains. The learned counsel for the appellant has placed reliance on a decision reported 2009 (3) P.L.J.R., 800 (Shibu Banka @ Sheonath Banka Vrs. The State of Bihar & Anr.), 2009 (3) P.L.J.R., 831 (Umesh Prasad @ Lichi vrs. The State of Bihar) and A.I.R. 1991 S.C., 515 (Murarilal Jhunjhunwala vrs. The State of Bihar & Ors.). 6. It has, further, been contended that the evidence of the witnesses have been recorded by one Presiding Officer, but, the order has been passed by another Presiding Officer, hence, there is violation of Section 326(3) of the Criminal Procedure Code as the proceeding of the Essential Commodities Act is a summary proceeding and the Presiding Officer is only required to record the gist of the evidence of the witnesses and, hence, the conviction by a Special Judge on the evidence recorded by his predecessor is not sustainable without recalling the witnesses. 7. The learned counsel for the State, however, opposed and submits that the violation of change in the place of business for which the licence granted is a violation in strict sense of the Essential Commodities Act and is violation of Section 3 of the Order enacted under the Act. However, the violation has been established. 4 8. However, taking into consideration the facts and circumstances since the licence for a premise at Parsawan with a specific premises bearing plot no. 1106, hence, the shifting of the shop is an act without specific permission of the authority concerned apparently is the violation of the terms of the licence. 9. The learned counsel for the appellant has taken a plea that due to flood, the Collector has given an oral order for shifting the place of business from the premises to Bankey Bazar, however, the law does not permit any such defence to act on oral order which has been denied and there is no merit in the submission and the decision relied upon are also not relevant. 10. However, so far the second point is concerned, though that Section 12(a)(a) of the Act provides that the proceeding under the Act is required to be a proceeding under a summary trial and, hence, it is to be proceeded in summary manner and, hence, the Presiding Officer of Special Court is required to record the substance of the elements and, hence, in that view of the matter Section 326(3) of the Criminal Procedure Code provides that the order in a summary proceeding is required to be passed by the Presiding Officer, who has recorded the evidence and when Presiding Officer of one Special Judge under the Act succeeds another then the successor Special Judge has no authority to proceed with the trial of the case from stage at which his predecessor has left the trial and, hence, the conviction recorded, on the basis of the evidence by his predecessor, without calling those witnesses, is not sustainable. This view is supported by decisions 5 reported in 1990 (1) P.L.J.R., 477 (Nathmal Kabre vrs. The State of Bihar). 11. Hence, having regard to the fact that when the statement of the witnesses have been recorded by one Presiding Officer, but, the order of conviction has been recorded by another Presiding Officer and, hence, the order of conviction and sentence is not sustainable and the case is required to be heard de novo, however, having regard to the fact that the occurrence is of the year 1993 and the appeal has been filed in the year 1996 and, since, about 19 years have already elapsed of the occurrence and the appellant has suffered a lot, hence, the de novo trial is not in the interest of justice for violation of change in place of shop. 12. Hence, in that view of the matter, the order of conviction and sentence is hereby set aside and the appeal is allowed. Since, the appellant is already on bail, he is discharged from the liability of bail bond. ( Gopal Prasad, J. ) The Patna High Court, The 27th day of June, 2011, N.A.F.R., S.A.