In summary trials, evidence recorded by the predecessor Judge cannot be used to hold the accused guilty, as per Sec. 326 of the Code of Criminal Procedure.

S.N.Pathak, J.

1. This appeal is directed against the order of conviction and sentence passed by Sri, B.P. Singh. Special Judge, Purnea in Special Case No. 10 of 1983. The appellants were convicted under Sec. 7 of the Essential Commodities Act (hereinafter, in short. referred to as the Act) and were sentenced to undergo RI for sixmonths each. The judgment was delivered on 17th March. 1990.

2. The appellants lawyer contended before me that the offences under the Act have to be tried by the Special Judge in a summary way and the evidence recorded by the predecessor Judge cannot be used by the successor Judge to base the conviction of the accused. In the instant case also, the same has occurred to the order of conviction arid sentence recorded by Sri B.P. Singh is bad in law. Moreover, on merit also the charge was not sustainable because the appellants were found carrying a truck loaded with mung from Siliguri to Calcutta and when the truck was passing through the State Of Bihar on a particular Toad, the driver was intercepted, and the truck along with consignment was seized. It was alleged that the assignment was being carried for sale in the State of Bihar but there is no "allegation" that the truck driver or the appellant No 1 was selling any part of the assignment in Bihar. So being found just in possession of concerned community, the appellants committed no offence and, in this view of the matter also, their conviction was bad.

3. Sec. 326 of the Code of Criminal Procedure, (hereinafter to be referred to as the Code) has empowered a Magistrate to record an order of conviction on evidence partly recorded by the predecessor. This section has clearly, mentioned in subsection (3) that the aforesaid provision under, the main section is not applicable to trials held in a, summary manner. Under Sec. 12-AA(f) of the Act, all offences under the Act are to be tried by the Special Judge in a summary way, and the provision of Secs. 262 to 265 of the Code shall apply to such trials. That means, when the Special, Judge fries such offences like, summary trial, any evidence recorded by the predecessor Judge, cannot be used by the successor to hold the accused guilty. In the instant case, it does not appear that Sri B.P. Singh who, passed the Judgment of conviction and sentence his recorded any part of its evidence, and it was submitted before me by the appellants lawyer that no evidence at all was recorded by Sri B.P. Singh. So it was submitted that the order of conviction recorded by Sri B.P. Singh was bad in law.

4. So far this contention of the appellants lawyer is concerned, there is, no escape from the legal propulsion and especially in view of the law laid down under Sec. 326 of the Code, after its amendment in the year 1978 that any Judge or Magistrate may proceed to pronounce judgment on the evidence partly recorded by the predecessor Judge or the Magistrate, but it was Section, 326(3) of the Code which has exempted summary trials from the amending Section. In such a circumstance, the order of conviction and sentence recorded by Sri B.P. Singh, Special Judge, EC Act was certainly bad in law.

5. Now the question is whether the case should be remanded back to the Special Judge for a fresh trial or not. The case was that the appellant was carrying goods through the State of Bihar, he had failed to produce his licence for carrying trade in the State of Bihar. The Trial Court held that the witnesses of the prosecution deposed that the appellants had their business establishment even in the State of Bihar but the evidence of the prosecution witnesses in view of the licence produced by the enclosed appellants itself was, perhaps not reliable unless the prosecution could produce licence of the accused for trade in Bihar. If it is assumed that the appellant No. 1 was carrying trade in Bihar without licence, the point is whether he was found selling or negotiating for sale of the consignment loaded on his truck. (He had produced licen