In a summary trial under the Essential Commodities Act, the provision of Section 326(3) Cr. P.C. is applicable, and the succeeding Judge must pronounce the judgment. Continuation of the trial by a succeeding Judge without completing the trial de novo vitiates the entire trial.

DEBIPRASAD SENGUPTA, J.

1. The present appeal has been preferred against the judgment and Order of Conviction and sentence passed by the learned Judge, Special Court (E.C. Act), Asansol in T.R. No. 34 of 1986 (D.E.B.- G.R. No. 44/185) thereby convicting the accused appellants under section 7(1) (a) (ii) of the Essential Commodities Act for violation of para 19(1)(a) of W.B. Rice and Paddy (Licensing & Control) Order, 1967 and sentencing each of them to suffer rigorous imprisonment for a period of 6 months and to pay a fine of Rs. 1,000/-

2. The prosecution case in short is that on 26.7.1985 the D.E.O., Ranigunge along with force visited the shop-cum-godown of Mahabir Prasad Agarwal at Jamuria bazar, when the other accused Suresh Kumar Mittal, a salesman, was found conducting business in rice. On checking it was found that 580 bags of rice weighing 495 quintals 35 kgs. were in stock, but the stock register and the rate board showed 555 bags of rice weighing 485 quintals 28 kgs. and 900 grams. So there was an excess stock of rice weighing 10 quintals 6 kgs and 100 grams. The accused failed to account for such shortage in the stock.

3. On completion of investigation charge sheet was submitted by the police. The case was taken up for Summary Trial. To prove its case the prosecution examined three witnesses including the complainant who is also the investigating officer of the case. Two witnesses were examined on behalf of the defence. P.Ws. 1 & 2 are two watcher constables and the P.W. 3 is the complainant of the case.

4. Mr. Balai Chandra Roy, learned Advocate appearing for the accused appellants submits that no proper weighment was made in the present case. Calculation was made on the basis of assumptions. P.W.1 a watcher constable, who was present with the raiding party stated in his evidence that he could not say the total weight of the rice stock. He also stated that there were rice bags of different weight. In his cross-examination he stated that all the bags were not weighed and only 2/3 bags from the stocks were weighed. He further stated that in total 10/12 bags were weighed and the D.E.O made calculation of weighment on assumption. This witness further stated that he becomes witness in all cases and he always accompanies the superior officers in raids. P.W. 2 is also a member of the raiding party. He deposed that he could not say what the D.E.O. did inside the showroom. P.W.3 is the D.E.O, who conducted the raid and also investigated the case. He seized all the rice bags found in the shop including the excess quantity of rice by preparing a seizure list. He called two public witnesses at the time of seizure. This witness seized rice bags from the shop room as also from other two rooms. He did not take any note how many bags were seized from each room. He further deposed that he did not prepare any weighment chart. He also could not remember whether separate search list was prepared for each room. He made a rough calculation which he did not note in the C.D.

5. Mr. Roy submits that although two persons were named in the charge-sheet as witnesses to the seizure, those two persons were not examined in this case and the prosecution also failed to give any satisfactory explanation for such non-examination of those witnesses.

6. The next noticeable feature in the present case is that the P.W.3 DEO, who is the informant and conducted the search and seizure, investigated the case himself. Such procedure adopted by the investigating agency has always been deprecated by the Hon'ble Supreme Court as also by other High Courts. In support of his contention Mr. Roy relies on a judgment of the Hon'ble Apex Court reported in Bhagwan Singh vs. State of Rajasthan, AIR 1976 SC 985. In the said case investigation of the case was undertaken by the informant himself. It was held by the Hon'ble Supreme Court that this is an infirmity which is bound to reflect on the credibility of the prosecution case.

7. Mr. Roy next argues that in the prese