RAJPATI SAHU Vs. THE STATE OF BIHAR (JHARKHAND)

JUDGEMENT

(1.) THE appellant has challenged the judgment of conviction and sentenced dated 20.12.1999 passed by the Special judge, Gumla in G.R. No. 36 of 1987 whereby the appellant was convicted for offences under Section 7(i) of the Essential Commodities Act and sentenced to undergo rigorous imprisonment for two years and also to pay fine of rupees one thousand and in default of payment of fine, to undergo rigorous imprisonment for one month.

(2.) THE prosecution case was registered on the basis of a written report submitted by the marketing officer (PW2) who had alleged while claiming that on receipt of a confidential information that a truck loaded with fifty bags of wheat was intercepted and it was found that the wheat was disposed of by the present appellant who was licence holder in respect of a Government public distribution system (PDS) shop and the bags of wheat which the appellant had lifted from the government godown were meant to be sold in black market. The marketing officer (PW2), along with other witnesses went to the shop of the appellant but found the shop closed. A display board was found outside the shop the contents of which were noted down and thereafter in presence of the witnesses, the shop was opened and an inventory of food grains and other, materials found inside the shop was prepared. It was found that though about six days earlier, the appellant had lifted fifty quintals of wheat and ten quintals of rice from the godown of the food corporation of India, but no such quantity of wheat was found in the shop, nor was any stock register or sale register found at the shop. The seized bags of wheat were handed over in zimma to one of the witnesses namely Sukhnu Singh. The trial against the appellant was initiated on the basis of the charge sheet submitted by the investigating officer for the aforesaid offence. The appellant has assailed the order of conviction primarily on the ground that the entire judgment of conviction and sentence of the appellant is vitiated and not maintainable in law on account of the fact that the same is against the provision of Section 326(3) of the Code of Criminal Procedure.

(3.) ON scrutiny of the lower court records, I find that the prosecution had examined altogether five witnesses, but the substance of evidence of these witnesses were not recorded by a single presiding officer. Rather, the evidences were recorded by two different presiding officers and the special Judge who had recorded the impugned judgment of conviction against the appellant is the third presiding officer who had merely acted upon the evidence recorded by his two predecessors in office. The ground taken by the learned counsel for the appellant that the procedure adopted by the learned court below is contrary to the provisions of Section 326(3) of the Cr. P.C. bears substance. The procedure prescribed for trial in respect of offence for which the accused is charged is procedure for summary trial which lays down that only substance of evidence has to be recorded by the trial court and not the entire statement of witnesses. This implies that the Presiding Officer who records the evidence, being in a position to appreciate the evidence adduced before him, is suitably positioned to act upon the evidence and record his findings on the same. The officer who succeeds him as the trial Judge being not in a position to appreciate the evidence recorded by his predecessor, cannot record any finding on the basis of such evidence. The provisions of Section 326 (1) and ( 2) of the Code of Criminal Procedure do not therefore apply to the cases tried by way of summary trial. The impugned judgment of conviction and sentence passed by the trial court therefore suffers from an illegality, which is not curable, and renders the impugned judgment vitiated in law. The impugned judgment is therefore not sustainable in law. Since this ground alone is sufficient to dispose of the appeal, it is not necessary to discuss the other grounds urged on behalf of the appellant.