Jawahar Prasad Vs. the State of Bihar - Court Judgment

Excerpt:
essential commodities act, 1955 - section 7(1)(a)(i) - bihar essential articles (display of prices and stocks) order, 1977--code of criminal procedure, 1973--sections 264 and 326--discrepancy in actual stock-appellant's shop was inspected by inspected party--notice board found displaying the price and stock hunged but no register was produced in connection with sale and purchase of the foodgrains on demand--on physical verification there was discrepancy in the actual stock and stock shown in the notice board--fir was lodged--witnesses examined and supported the case of the prosecution--appellant contended that procedure for trial was summary procedure and it was necessary that same judge, who recorded the entire evidence would decide the entire case--his successor not to have decided the case recorded by the predecessor--evidence was recorded by different presiding officer and finally the judgment recorded by the special judge on the basis of evidence recorded by his predecessor--not sustainable in the eye of law--held : appellant would be entitled to acquittal of charge--conviction and sentence passed by court below liable to be set aside. - indu prabha singh, j.1. the sole appellant has been convicted under section 7(i)(a)(i) of the e.c. act. he was sentenced to undergo r.i. for six months and to pay a fine of rs. 500/- in default to undergo simple imprisonment for two months.2. the prosecution case in short is that on 12-5-1983 at about 1.30 p.m. the supply inspector alongwith the assistant district supply officer and other officers inspected the business premises of the appellant jawahar prasad which was situated at karmnasha bazar, p.s. durgawati, district-rohtas. it has been stated that the appellant was wholesale licensee holding licence no. 750/81 and his firm was named and styled as m/s parvati bhandar. at the time of inspection, the appellant jawahar prasad was not present there. however, his two agents were present who were conducting the business. the inspecting party found the notice board displaying the price and stock hunged but his employees did not produce the relevant registers in connection with sale and purchase of the foodgrains on demand. thereafter, the informant jagdish singh made a physical verification of the stock. he found that there was discrepancy in the actual stock and the stock shown in the notice board. it was found that 87 quintals 67 kilograms and 500 grams paddy was displayed whereas 93 quintals 75 kilograms paddy was actually in the stock. similarly 100 quintals khasari was displayed on the notice board whereas 118 quintals was found in the stock. similarly 75 quintals masur was displayed on the notice board whereas 77 quintals masur was found in the stock. no stock of tisi was displayed on the notice board but 2 quintals 40 kilograms tisi was also found in the stock.3. it has been stated that two agents who were conducting the business fled away and the stock was seized in presence of uma prasad gupta (p.w. 1) and rampati (not examined) and the seized stock was handed over on a jimanama to p.w. 1 uma prasad gupta. it was alleged that the agents of the firm present there had deliberately not displayed the actual stock and thereby violated the provisions of bihar essential articles (display of prices and stocks) order, 1977 and they also violated the terms and conditions of licence by deliberately not producing relevant documents at the time of inspection which is an offence punishable under section 7 of the essential commodities act. thereafter a written report (ext.-4) was submitted before the officer-in-charge durgawati police station and on the basis of the written report the fir was registered/after completion of investigation charge-sheet was submitted against the appellant under section 7 of the e.c. act. accordingly, cognizance was taken and the case was conducted by the special judge and the trial concluded with the result as indicated above. the appellant pleaded not guilty.4. the prosecution in support of its case examined four witnesses. p.w. 1 uma prasad gupta, p.w. 2 harihar chaudhary p.w. 3 jaganath ram and p-w. 4 jagdish singh. p.ws. 1, 2, 3 and 4 all have supported the case of the prosecution.5. learned counsel appearing on behalf of the appellant submitted that in the present case the procedure for trial was summary procedure and it was necessary that the same special judge, who had recorded the entire evidence would have decided the entire case and his successor could not have decided the case recorded by the predecessor. in this case, the evidence of p.ws. 1 to 4 were recorded by the special judge, vidyanand and the judgment was dictated by the special judge, kapileshwar prasad.6. the rational behind the aforesaid view appears to be that under section 362 of the cr.p.c. the procedure specified for the trial of summary as to be followed in summary trial and section 264 of the cr.p.c lays down that the magistrate shall record the substance of the evidence. thus it is evident that in summary trial only substance of evidence is to be recorded and it does not record the entire statement of the witnesses. therefore, the judge or the magistrate who had recorded the substance of evidence is in position to appreciate the evidence led before him and the successor judge or the magistrate cannot appreciate the evidence on the basis of evidence recorded by his predecessor. therefore, it appears, that why the provision of sub-sections (1) and (2) of section 326 of the cr.p.c. have not been applicable to summary trial.7. as stated above in the present case the evidence was recorded by different presiding officers and finally the judgment was delivered by the special judge the basis of the evidence recorded by his predecessor. the special judge who delivered the judgment had not recorded the evidence of the witnesses, as such he could not have proceeded from the stage where his predecessor had left the case and would not had used the evidence recorded by his predecessor. therefore, the judgment and order is vitiated on the ground of the said illegality and the same is not sustainable in the eye of law.8. accordingly, the conviction and sentence passed by the court below is set aside and the appellant is acquitted of the charge framed against him. he is discharged from the liabilities of his bail bond. in the result, this appeal is allowed.

Judgment:

Indu Prabha Singh, J.

1. The sole appellant has been convicted under Section 7(i)(a)(i) of the E.C. Act. He was sentenced to undergo R.I. for six months and to pay a fine of Rs. 500/- in default to undergo simple imprisonment for two months.

2. The prosecution case in short is that on 12-5-1983 at about 1.30 p.m. the Supply Inspector alongwith the Assistant District Supply Officer and other officers inspected the business premises of the appellant Jawahar Prasad which was situated at Karmnasha Bazar, P.S. Durgawati, District-Rohtas. It has been stated that the appellant was wholesale licensee holding licence No. 750/81 and his firm was named and styled as M/s Parvati Bhandar. At the time of inspection, the appellant Jawahar Prasad was not present there. However, his two agents were present who were conducting the business. The inspecting party found the notice board displaying the price and stock hunged but his employees did not produce the relevant registers in connection with sale and purchase of the foodgrains on demand. Thereafter, the informant Jagdish Singh made a physical verification of the stock. He found that there was discrepancy in the actual stock and the stock shown in the notice board. It was found that 87 quintals 67 kilograms and 500 grams paddy was displayed whereas 93 quintals 75 kilograms paddy was actually in the stock. Similarly 100 quintals Khasari was displayed on the notice board whereas 118 quintals was found in the stock. Similarly 75 quintals Masur was displayed on the notice board whereas 77 quintals Masur was found in the stock. No stock of Tisi was displayed on the notice board but 2 quintals 40 kilograms Tisi was also found in the stock.

3. It has been stated that two agents who were conducting the business fled away and the stock was seized in presence of Uma Prasad Gupta (P.W. 1) and Rampati (not examined) and the seized stock was handed over on a Jimanama to P.W. 1 Uma Prasad Gupta. It was alleged that the agents of the firm present there had deliberately not displayed the actual stock and thereby violated the provisions of Bihar Essential Articles (Display of Prices and Stocks) Order, 1977 and they also violated the terms and conditions of licence by deliberately not producing relevant documents at the time of inspection which is an offence punishable under Section 7 of the Essential Commodities Act. Thereafter a written report (Ext.-4) was submitted before the officer-in-charge Durgawati Police Station and on the basis of the written report the FIR was registered/After completion of investigation charge-sheet was submitted against the appellant under Section 7 of the E.C. Act. Accordingly, cognizance was taken and the case was conducted by the Special Judge and the trial concluded with the result as indicated above. The appellant pleaded not guilty.

4. The prosecution in support of its case examined four witnesses. P.W. 1 Uma Prasad Gupta, P.W. 2 Harihar Chaudhary P.W. 3 Jaganath Ram and P-W. 4 Jagdish Singh. P.Ws. 1, 2, 3 and 4 all have supported the case of the prosecution.

5. Learned Counsel appearing on behalf of the appellant submitted that in the present case the procedure for trial was summary procedure and it was necessary that the same Special Judge, who had recorded the entire evidence would have decided the entire case and his successor could not have decided the case recorded by the predecessor. In this case, the evidence of P.Ws. 1 to 4 were recorded by the Special Judge, Vidyanand and the judgment was dictated by the Special Judge, Kapileshwar Prasad.

6. The rational behind the aforesaid view appears to be that under Section 362 of the Cr.P.C. the procedure specified for the trial of summary as to be followed in summary trial and Section 264 of the Cr.P.C lays down that the Magistrate shall record the substance of the evidence. Thus it is evident that in summary trial only substance of evidence is to be recorded and it does not record the entire statement of the witnesses. Therefore, the Judge or the Magistrate who had recorded the substance of evidence is in position to appreciate the evidence led before him and the successor Judge or the Magistrate cannot appreciate the evidence on the basis of evidence recorded by his predecessor. Therefore, it appears, that why the provision of Sub-sections (1) and (2) of Section 326 of the Cr.P.C. have not been applicable to summary trial.

7. As stated above in the present case the evidence was recorded by different presiding officers and finally the judgment was delivered by the Special Judge the basis of the evidence recorded by his predecessor. The Special Judge who delivered the judgment had not recorded the evidence of the witnesses, As such he could not have proceeded from the stage where his predecessor had left the case and would not had used the evidence recorded by his predecessor. Therefore, the judgment and order is vitiated on the ground of the said illegality and the same is not sustainable in the eye of law.

8. Accordingly, the conviction and sentence passed by the Court below is set aside and the appellant is acquitted of the charge framed against him. He is discharged from the liabilities of his bail bond. In the result, this appeal is allowed.