Judgment:
Abhijit Sinha, J.
1. The sole appellant has preferred this appeal impugning the judgment and order dated 23.6.1992 passed by Sri Kunjal Sai Miru Toppo, the then Special Judge (Essential Commodities Act), Darbhanga, in T.R. No. 15 of 1988 (arising out of Biraul P.S. Case No. 28 of 1988). By the impugned judgment and order the appellant on being convicted for an offence under Section 7 of the Essential Commodities Act (hereinafter referred to as the 'E.C. Act') for violation of the provisions of Bihar Trade Articles (Licenses Unification) Order, 1984 (hereinafter referred to as the Unification Order) has been imposed a sentence to undergo R.I. for one year.
2. The prosecution case briefly stated is that the informant R.K. Jain, Magistrate Incharge of Flying Squad, Benipur Subdivision along with Supply Inspector Bal Govind Jha and Sub-Election Officer Mahaweer Prasad visited the shop and godown premises of accused Shiv Shankar Chaudhary on 20.4.1988. Although the shopkeeper was found absent, his brother Ramsudist Chaudhary was found transacting business in the shop but as the godown premises was found locked, the raiding party could not inspect the shop and godown premises and, therefore, sealed both of them. On the following day the seals were broken open and upon inspection of the shop and godown premises in the presence of Ramsudist Chaudhary 17.85 quintals of food grains and 64 tins of 'Mala' Brand mustard oil weighing 9.60 quintals were seized from the godown premises under a seizure list (Ext. 1) and the same were handed over to Ramsudist Chaudhary under a Jimanama (Ext. 4). It was stated that although the food grains seized were within the permissible limit for a retail dealer but the mustard oil was found beyond the permissible limit of 5 quintals. On the basis of the same Biraul P.S. Case No. 28 of 1988 was registered and after submission of chargesheet against the accused the substance of accusation was explained to the accused to which he pleaded not guilty and claimed to be tried.
3. The further defence plea is one of innocence and false implication in this case due to the personal grudge due to non payment of the illegal demand made by the inspecting officials.
4. I have perused the materials available on record and I am firmly of the opinion that this appeal must be allowed the reasons wherefor are stated herein below.
5. The allegations relate to a retail dealer storing mustard oil worth 9.60 quintals, which was far beyond permissible limit of 5 quintals. 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 catena 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 for the stock of edible oil in relation to 'B' Class and 'C' Class cities were fixed. It must also be noted that neither in the Unification Order nor in the aforesaid notification it has been mentioned as to what is the meaning of a 'B' Class city or 'C' Class city.
6. It was on this basis that it had been held by the decisions of this Court that the Unification Order was not workable in relation to edible oil. In this connection reference may gainfully be made to the decision of Shambhu Nath Agrawal v. State of Bihar reported in 1991(1) PLJR 462 and Vijay Kumar v. State of Bihar reported in 1992(1) PLJR 605. It will not be out of place to mention here that although the notification regarding fixing of storage limit under the Unification Order was issued in October 1988, the raid in the instant case was conducted on 22.4.1988, which was much prior to the issuance of notification. And as such the alleged excess storage of edible oil was beyond the ambit of a prosecution under the E.C. Act for violation of the provisions of the Unification Order.
7. There is yet another aspect which requires consideration. From perusal of the records of the Court below, it appears that whereas the deposition of the prosecution witnesses were recorded by Sri P.B. Jha, erstwhile Special Judge, E.C. Act cases, Darbhanga, the judgment was delivered by Sri Kunjlal Sai Miru Toppo, 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 Code of Criminal Procedure.
8. Section 326(1) & (2) of the Code of Criminal Procedure provides that evidence recorded by a Judge can be considered by the successor Judge for passing a judgment. However, Sub-section (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 Code of Criminal Procedure.
9. In that view of the matter the impugned judgment and sentence awarded in this case is vitiated due to the reason that the judgment and order was not passed by the same Judge, who had recorded the entire evidence at the trial.
10. Due regard being had to the facts and circumstances of the case I am firmly of the opinion that for the reasons stated in the foregoing paragraphs the impugned judgment and order cannot be sustained in the eye of law and have to be set aside.
11. In the result the appeal is allowed and the impugned judgment and order are hereby set aside. The appellant is discharged from the liabilities of his bail bond.
12. Before I part I must record my anxiety and dis-approval of the manner adopted by the Magistrate Incharge Flying Squad and Supply Inspector appointed by the State Government to force parties into vexatious litigation. In the instant case although there was no storage limit fixed under the Unification Order till the notification came on 17.10.1988 yet the Magistrate Incharge and Supply Inspector on 21.4.1988, which was much prior to the date of notification had forced the appellant herein into vexatious litigation. In the instant case the appellant had to face the trauma and ordeal of vexatious litigation for about 19 years, only because, as the defence plea stand he had not satisfied the illegal demand of the officer. Accordingly the State Government in the Department of Food and Civil Supply is imposed an exemplary cost of Rs. 5,000/- for entering into a vexatious litigation and such cost must be deposited in the office of the Bihar State Legal Services Authority, Budha Marg, Patna within a period of two months from the date of receipt of this order. Let a copy each of this order be sent to the Secretary cum Commissioner, the Govt. of Bihar in the Department of Food and Civil Supplies as also to the Secretary, Govt. of Bihar in the Department of Law.