CRIMINAL APPEAL No.321 OF 1993 Against the Judgement and Order dated 25th September, 1993 passed by Sri Prabhat Kumar Sinha, Additional District & Sessions Judge- cum-Special Judge under Essential Commodities Act, Muzaffarpur in Trial No.50 of 1992 arising out of Sakara P.S.Case No.193 of 1987. AJOY KUMAR PODDAR, son of Sri Ram Deyal Poddar, resident of village Sakra, P.S.Sakra, District- Muzaffarpur --------- (Appellant) Versus THE STATE OF BIHAR------------ (Respondents) ---- For the Appellant:- Sri N.K.Agrawal, Senior Advocate. Sri D.N.Tiwary Sri Saket Tiwary For the State :- Sri Dashrath Mehta, A.P.P. P R E S E N T THE HON'BLE MR. JUSTICE DHARNIDHAR JHA Dharnidhar Jha, J. The sole appellant was put on trial for committing the offence under Section 7 of the Essential Commodities Act by the learned Special Judge(Essential Commodities Act), Muzaffarpur in Tr.No.50 of 1992 arising out of Sakara P.S.Case No.193 of 1987 and was found guilty by the judgement and order of conviction passed on 25.9.1993 - 2 - and was directed to suffer simple imprisonment for a term of three months. The appellant has questioned the legality of the finding and propriety of the sentence through the present appeal. 2. The facts of the case lie in a very narrow compass. There is no denial that the appellant was a licensed retailer under the Public Distribution System. The allegation is that the informant, i.e., Rajeev Verma(P.W.2)inspected the business premises of the appellant on 18.11.1987 and found that there was no display board indicating the stock position and other details nor he could find any register in respect of palm oil and kerosene oil and as such started preparing a memo. It is alleged that the appellant snatched the papers from P.W.2 forcing him to treat back to his office. 3. P.W.2 stated that he again came back on 19.11.1987 with a raiding party and with the help of accompanying police force broke open the doors of the shop of the appellant which was found closed and made - 3 - the seizure and prepared the seizure memo. As may appear from the impugned judgment there was no seizure produced or found on the record of the case. On that very date, i.e., 19.11.1987 the informant lodged a report of the above facts and on that basis the FIR was drawn up. The written report bore the details of the quantity of commodities which were found by P.W.-2 stored in the stock of the appellant and though what could be the stock position after receiving the supply of the commodities. The typed report(Ext-3)was the basis for drawing up Ext-4, the FIR of the case and filing of the final form sending up the appellant for the trial on conclusion of the investigation. 4. The defence of the appellant was that allegations were false and concocted and that nothing was found as was reported by P.W.2 through Ext-3 and that P.W.2 the Supply Inspector never visited the business premises of the appellant and for any reasons best known to him he lodged a report full of concocted facts. - 4 - 5. On trial the appellant was found guilty and sentenced as indicated at the very outset of the present judgement. 6. The learned Counsel, appearing on behalf of the appellant has raised a solitary point. By drawing the attention of the court to the provisions of Section 326 Cr.P.C., it was contended that Section 12AA of the Essential Commodities Act mandated the trial to be taken up by following the summary procedure as per Sections 262 to 265 of the Criminal Procedure Code and it may appear from the very impugned judgement that the accusation to the appellant was explained by the predecessor Judge of the learned Judge who had passed the order of conviction and sentenced the appellant. It was contended that there could not be a de novo trial which also appears from the provisions above said also as may appear from the decision of this Court reported in 2008(2)PLJR 604 Dhurub Nath Chaubey Vrs. State of Bihar which was referring to yet another decision of this Court reported in 1990(1)PLJR 477 Nathmal Kabra and Anr Vrs. - 5 - The State of Bihar. It was contended that the first witness was examined on 9.11.1992 and the last witness was examined on 15.3.1993 and thereafter the judgement was pronounced on 25th September, 1993. It was contended that the trial had commenced as indicated above on 5.7.1990 on which date accusation was explained and it was to be concluded by the Judge who had explained the accusation to the appellant. It was further contended by drawing the attention of the court to clause 31(2) of the Bihar Trade Articles (Licenses Unification)order, 1984 that the storage and trade being for and on behalf of the State of Bihar the very offence was not committed and on this score also the appellant ought not to have been convicted. The learned counsel for the appellant has further drawn the attention of the court to the discussion of evidence made by the learned trial Judge in various paragraphs, specially in paragraphs 15 and onwards, to contend that in the light of the very discussions of evidence made by the learned trial Judge the judgment of - 6 - conviction against the appellant is unjustified. 7. Sri Dashrath Mehta appearing for the State of Bihar has highlighted the seriousness of the accusation against the appellant by submitting that not only the appellant was found not maintaining stock positions as was expected from him, but when a public servant was acting to discharge his duties the appellant interfered with the duties of such public servant so as not to allow him to verify the stock position and compare it with the relevant records required to be maintained by the appellant under law. It was contended further by Sri Dashrath Mehta that the appellant was not found having put up a proper display board nor had he mentioned the stock position or other details over it and the stock was found completely inconsistent with the stock which had been received by the appellant so as to dealing in the commodities. 8. As may appear from the contentions the argument of the appellant is based on the provisions of Section 326 - 7 - Cr.P.C. and that provision reads as under:- Conviction or commitment on evidence partly recorded by one (Judge or Magistrate) and partly by another—(1) Whenever any (Judge or Magistrate), after having heard and recorded the whole or any part of the evidence in an enquiry or a trial, ceases to exercise jurisdiction therein and is succeeded by another (Judge or Magistrate) who has and who exercises such jurisdiction, the (Judge or Magistrate)so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his processor and partly recorded by himself: Provided that if the succeeding (Judge or Magistrate)is of opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interests of justice, he may re-summon any such witness, and after such further examination, cross- examination and re- examination, if any, as he may permit, the witness shall be discharged. (2)When a case is transferred under the provisions of this Code (from one Judge to another Judge or from one Magistrate to another Magistrate) the former shall be deemed to cease to exercise jurisdiction therein, and to be succeeded by the latter, within the mining of sub- - 8 - section(1). (3)Nothing in this Section applies to summary trials or to cases in which proceedings have been stayed under Section 322 or in which proceedings have been submitted to a superior Magistrate under section 325. 9. It may appear from perusal of the above provision that a Judge or a Magistrate who had heard and recorded the whole or any part of the evidence if ceases to exercise his jurisdiction in any such case and is succeeded by another Judge or Magistrate who has to exercise the similar jurisdictions as a successor to the earlier Judge/Magistrate then he may act on the whole evidence recorded by his predecessor or partly recorded by his predecessor and partly recorded by himself. The proviso appended to sub section(1) to Section 326 Cr.P.C. empowers such a Judege/Magistrate to re- summon any of the witnesses who had been heard earlier or whose evidence could have been recorded either by his successor or partly by his successor or partly by him so as to further examining, cross-examining and - 9 - re-examining such witnesses. The relevant provision is contained in sub-section(3) of Section 326 Cr.P.C. which puts a complete bar on application of the provisions of the whole of Section 326 Cr.P.C.to a case to be tried summarily. 10.The above provision has a history. Before the Code of Criminal Procedure, 1973 came into force, the earlier code had the provision that no Judge or Magistrate could act upon the evidence recorded in full or part by his predecessor. As such, during the days when the Cr.P.C. of 1898 was in force the Judges had to take up the trial of an accused de novo and that used to be highly time consuming. It was very difficult to seek the attendance of those witness afresh who had already been examined and discharged during the hearing of a case by his predecessor. So as to obviating the above situation, Section 326 Cr.P.C. was amended and was cast in the form as is presently available to us. 11. The question is as to whether the learned Judge who passed the judgement on - 10 - the appellant was really barred in passing that judgement in the light of Section 326(3)of the Cr.P.C. For answering the question I could simply say that the words “heard and recorded the whole or any part of the evidence in an enquiry or trial” are the deciding words upon which the answer to the above poser is based. The bar is created only in cases tried summarily. It operates only when the evidence is heard and recorded wholly or in part by one Judge and the remaining evidence is recorded by the successor Judge and the judgement is rendered by him by considering the earlier recorded evidence by his predecessor and that part of the evidence which was recorded by him. No bar could be attracted in such cases merely by explaining the accusations to an accused who could be tried by following provisions of Sections 262 to 265 Cr.P.C., as was contended; it operates in reading and acting on evidence fully or partly not recorded by a Judge or a Magistrate. 12.Here in the present case the first witness was examined on 6.9.1990 by Sri - 11 - R.C.Srivastava and thereafter P.Ws.1 to 8 was examined whose evidences were recorded by Sri P.K.Sinha who succeeded Sri R.C.Srivastava as Special Judge, Muzaffarpur. The evidence of all the witnesses including that of P.W.1 was considered and after such consideration the judgement was rendered. Thus, the part of the evidence, i.e., evidence of P.W.1 was recorded by a Judge whom Sri P.K.Sinha who delivered the judgement in the case, had succeeded. As such, the bar created by the provisions of Section 326(3)Cr.P.C. was clearly attracted in proceeding with the trial by Sri P.K.Sinha who ultimately rendered the judgement on the 25th September, 1993. The trial was to be initiated afresh and the evidence of P.W.1 was also required to be recoded by the learned trial Judge who rendered the judgement in the case before he could have proceeded further in the matter. The provision of Section 326(3)Cr.P.C. bars the use of pre-recorded evidence by a successor Judge only when the trial has to be conducted according to the provision of Sections 262 to 265 of the Cr.P.C. It is not - 12 - merely that it is a prohibition rather the provision of Section 326(3)Cr.P.C. creates a complete bar on the jurisdiction of a Judge who proceeds further in a case without starting the trial afresh, if his predecessor had recorded the evidence of any witness of the case. Thus, the learned Judge who rendered the judgement of conviction appears not having the jurisdiction of it as the entire procedure was vitiated by virtue of Section 326(3)Cr.P.C. 13.The learned counsel for the appellant was drawing the attention of the court to the provisions of Section 31 of the Bihar Trade Articles(Licenses Unification)order, 1984. The provision relates to exemption and if one could consider the provision it relates to the storage of different trade articles by a person. It is stated in a general term that the State Government or the Central Government may exempt a person or class of persons or firm or association of persons or any cooperative society from the operation of all or any provisions of the order and may at - 13 - any time suspend or rescind such exemptions. Clause (2) to the above provision exempts the application of the whole of the provisions of the above noted Order if the sale or storage for sale was by or on behalf of the Central Government, the State Government or the officers, departments, institutions or other organizations of the State Government or such agencies as may be approved by the State Government. Thus, the exemptions appear in respect of a particular Section of persons or organizations or firms who are engaged in handling certain articles for or on behalf of the Central or State Government. The Bihar Trade Articles(Licenses Unification)order, 1984 regulates the trade and supply of certain specified trade articles as indicated in schedules 1 to 3 of that particular Order and if one could consider schedule 1 and other schedules attached to that particular order, one could come across that there are provisions for obtaining licence by payment of appropriate fees after making application in prescribed form for dealing in a particular trade article or many trade - 14 - articles. The violation of any of the licensing conditions, which are duly listed in the terms and conditions are part of the licence which appears in Form „C‟ under schedule 3 of the above noted order. Any breach or violation of the licensing condition is duly made cognizable and triable as a defined offence due to being a violation of the provisions of the control order which is ultimately punishable under Section 7 of the Essential Commodities Act by virtue of being violative of the conditions under Section 3 of the said Act. Thus, the exemptions could not be taken as a plea to get away from prosecution and penalty under the Essential Commodities Act. It could be a good defence in appropriate cases that a person could come forward and say that he was not handling a particular trade article and that it was either for or on behalf of either the Central Government or the State Government. 14. It brings me to yet another important consideration as to what ultimately could be the fate of the case. - 15 - The offence was committed on 19th September, 1987. The judgement of conviction was rendered on 25.9.1993. As indicated above it was vitiated on account of lack of jurisdiction in utilizing evidence recorded by a predecessor Judge for rendering the judgement. A couple of decisions by this Court rendered in 2008(2)PLJR 604 Dhurub Nath Chaubey Vrs. State of Bihar and 1990 (1)PLJR 477 Nathmal Kabra and Anr. Vrs. State of Bihar have taken a view that afresh trial in such cases may not be appropriate to be ordered on account of failure of procedure of law. In 1990(1)PLJR 477 the position has not been made so clear as regards stopping the prosecution, but the decision of this Court in 2008(2)PLJR 604 has categorically stated that de novo trial may not be ordered. The rational, in my view, could be that for such an offence in which the appellant was sentenced to three months simple imprisonment long back in September, 1983, it could not be the fault of the appellant that the procedures were not followed fully or were not followed at - 16 - all, it was the fault of the court or the Judge who could have himself failed in reading the provisions of Section 326(3)Cr.P.C. It appears in the ends of justice that the appellant be acquitted by holding that he was convicted on account of wrong application of jurisdiction of the court in reading the evidence against the provisions of Section 326(3)Cr.P.C. 15. Accordingly, the appellant is acquitted. He is on bail. He shall stand discharged from the liabilities of his bond. The appeal is allowed. The judgement and order of conviction is set aside. The Patna High Court Dated the 27th Feburary,2009 AFR/B.Kr. ( Dharnidhar Jha, J. )