JAIN, J.—This is an appeal by the State of Rajasthan against the order dated 8th April, 1969 of the Additional Sessions Judge, Jhalawar whereby he set aside the conviction of Radhey Shyam respondent under sec. 7 of the Essential Commodities Act on the ground that the trial by the sub-divisional Magistrate, Jhalawar was illegal and ultra vires on his part.

2. Abdul Rahim, Head Constable of Bhawani Mandi police station found a bullock cart carrying 7 bags of bailey on the Jhalawar road near village Ramnagar. Raghunath respondent No. 2 was driving the bullock cart. On being interrogated he informed the Head Constable that the bags belonged to Seth Kundanmal of Bhawani Mandi. His Munim Ramniwas had sent them to be transported to village Ghatod by his cart on hire. First information report Ex. P. 1 was lodged on 12-4-1967 by the said Head Constable Abdul Rahim at the police station. After investigation Raghunath was prosecuted in the court of sub-divisional Magistrate, Jhalawar, Raghunath took the plea before the learned Magistrate that it was Radhey Shyam respondent No. 1 who sent the barley in question by his bullock cart to Ghatod. During the trial the learned Magistrate ordered of Radhey Shyam to be impleaded as accused. Radhey Shyam in his statement admitted that he was the owner of the 7 bags of barley which were carried by Raghunath in his bullock cart. His plea was that the said barley was sent from village Ghatod to Bhawani Mandi for sale. Since it could not be sold out, it was being transported back to village Ghatod. He admitted that he had no permit. On the basis of this statement alone, the learned Magistrate found both the accused having contravened sec. 3 of the Rajasthan Foodgrains (Restrictions on Border Movement) Order, 1959. He held them guilty under sec 7 of the Essential Commodities Act, 1955. It may as well be mentioned that both the accused were tried summarily under sec. 12-A of the Essential Commodities Act. As a result of his order dated 30-3-1968 Radhey Shyam was sentenced to 3 months rigorous imprisonment and a tine of Rs. 500/-, in default of fine a further imprisonment of 3 months was awarded. Accused Raghunath was sentenced to one months rigorous imprisonment and a fine of Rs. 50/-, in default of the payment of fine 10 days further imprisonment was awarded.

3. Raghunath did not file any appeal but Radhey Shyam preferred an appeal in the court of Additional Sessions Judge, Jhalawar. It was argued before the learned judge in appeal that Shri Chetanya Prakash who tried the case of the accused persons summarily, was not specially empowered under sec. 12-A of the Essential Commodities Act. This submission prevailed with the Judge and he placing reliance on Sabuddin Sheikh Mansur vs. J. S. Thakur(l), held that in the circumstances of the case Shri Chetanya Prakash Sub-divisional Magistrate was not specially empowered and as such the trial of the appellant Radhey Shyam was not legal. He, therefore, quashed the trial and set aside the order of conviction vide his judgment dated 8-4-1969. It is in these circumstances that the State Government has filed this appeal. Ragunath has also been made respondent No. 2 in this case.

4. Mr. Shishodia representing the State submitted before us that Shri Chetanya Prakash Sub-divisional Magistrate, Jhalawar was specially empowered under the relevant Act and the notification published thereunder. He referred to the notification No.F. 3(11) Jud/64/Jaipur dated November 18, 1965. According to him this notification specially empowered the S.D.M. Chittorgarh as the authority to try summarily all offences relating to the contravention of any Order made under sec. 3 of the Essential Commodities Act, 1955. It was admitted that Shri Chetanya Prakash was not the S.D.M., Chittorgarh on the day the said notification was published. He was only one of his successors. His contention, however, is that the S.D.M. who held the office on the date of the notification was legally conferred with th

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