N. Pandey, J.:— Both the appellants stand convicted under section 12-AA(1)(f) read with section 7 of the Essential Commodities Act, 1955 (hereinafter referred to as the Act) and sentenced to undergo rigorous imprisonment for two years, each by the judgment dated 1.2.1989 passed, in Special Case no. 16/86, be Sri R.D Roy, Special Judge, E.C Act, Urban, Patna. Being aggrieved by the aforesaid judgment, the appellants have preferred this appeal.

2. The case of the prosecution, in short, is that on 22.2.86 at about 3 P.M, a police party of the Department of Food, Government of Bihar, headed by Sri S.N Pandey, conducted the raid of the business premises of Kabra Brothers, dealers in Kerosene oil and Diesel, situated at Patna Ghat within the Malsalami Police Station, District Patna. Appellant no. 1 is the proprietor of Kabra Brothers and holds a licence, granted under the provisions of Bihar Trade Articles (Licences Unification) Order, 1984, whereas appellant no. 2 was at the relevant time Munshi of the firm. During the course of search, the physical verification of the stock was done. The opening balance, as per the stock register was 9420 litres. 3300 litres of K. Oil, had been shown to be sold on 22.2.86 The tank of the K. Oil contained 6246 litre of K. Oil besides 2 drums of K. Oil containing 400 litres were found. Thus, the total stock was found 6646 litres. According to the raiding party, there was excess of 526 litres of K. Oil beyond the stock entries. It is alleged that on one of the drums, the name of one Ajit Kumar Singh and on the other drum, the name of Karmu Sah were written. It has further been alleged that the dealer failed to furnish satisfactory explanation with regard to the aforesaid irregularity. It has been further alleged that the appellants had violated the directions of the Special Officer, Rationing, as contained in Exts. 7 and 7/1 which were issued to the different wholesale dealers of the town dealing with K. Oil. The articles were seized and the seizure list was prepared. The prosecution alleged that the appellants had failed to explain the excess stock of the K. Oil and had further contravened the provisions of the Act in not displaying the correct position of the stock.

3. On the basis of the written report submitted by the raiding party, a formal F.I.R was recorded. The police, after completing investigation, submitted charge-sheet under section 7 of the Essential Commodities Act. Thereafter, the cognizance of the offence was taken and accused persons were put on trial.

4. The defence of the appellants, as it appears from the trend of cross-examination, as also their statements recorded under section 313 of the Code of Criminal Procedure, is total denial of the prosecution allegation. Their further case is that no correct measurement of the K. Oil as also of the tank containing K. Oil had been done by the inspecting party. There was no excess of K. Oil in the stock beyond the entry made in the stock register. There was no proper stock verification nor the measurement of K. Oil was done in accordance with law.

5. The prosecution, in support of its case examined altogether 6 witnesses, P.W 1. Raghubansh Singh, at the relevant time was the Inspector, C.I.D (Food). P.W 2, Remi Liucus and P.W 3, Shiv Shankar Prasad have been tendered. P.W 4, Surendra Nath Pandey, at the relevant time was the Deputy Superintendent of Police (Food). P.W 3, Surendra Kumar Verma was the Stenographer of the Special Officer, Rationing, Patna, P.W 6, Singheswar Prasad Sinha, Police Inspector, C.I.D (Food), is the informant of this case.

6. From the evidence of the informant, it transpires that on 22.2.86 he accompanied with the members of the raiding party, consisting of several police officers headed by Sri S.N Pandey (P.W 4) had conducted the raid at the business premises of Kabra Brothers. From his evidence it further reveals that they had inspected the business premises, where Munshi of the firm was carrying business. The factum of inspection of the premises has been well corroborated by the evidence of other witnesses, namely, P.W 1, Raghubansh Singh and P.W 2, Remi Liucus as well. From the evidence of the witnesses it further reveals that during the course of physical verification of the articles as well as the stock register, the opening balance of K. Oil on 22.2.86 was to the extent of 9420 litres. But in course of physical verification of the tank of the K. Oil, it was found to the extent of 6246 litres and 400 litres in two drums, totalling to the extent of 6646 litres. According to the prosecution, the stock should have been 6120 litres after the deduction of the daily sale, i.e, 3300 litres.

7. The trial court, upon consideration of the facts and the evidence on record, came to the conclusion that although on verification, the stock of k. oil should have been found to the extent of 6120 litres, but on actual verification, it was found 6646 litres. Therefore, according to the trial court, there was excess of 526 litres of K. oil in the stock and the appellants failed to explain the said irregularity.

8. Learned counsel appearing on behalf of the appellants submitted that actually there was no proper verification of the stock by the raiding party. Had there been any proper verification of the stock in accordance with law, no excess, as alleged by the prosecution could have been found. The measurement of the tank, in which k. oil was stored, was done according to the ‘dip rod’ measurement system. The prosecution witnesses have admitted, in their evidence, that they had neither measured the actual capacity of the storage tank nor were they aware of its dimensions. They only measured the depth by putting the rod dip in the Tank. The calculation of the measurement was done on the basis of a calibration chart, supplied by the Indo Burma Petroleum Company Ltd., Ext. 6. According to the learned counsel, the measurement should have been done according to the provisions of Bihar Weights and Measures (Enforcement) Act, 1960. Under Chapter VI of the said Act, for the measurement of the petroleum product, special provision has been laid down. This part deals with a special capacity of measurement which may be used for petroleum products. This special measurement shall be in capacity of litres. The aforesaid provision was added by notification dated 31st March, 1975. The aforesaid Act and Rule does not recognise any other method for the measurement of the petroleum product.

9. Learned counsel for the appellants, while referring to the relevant evidence of P.W 4, Surendra Nath Pandey and P.W 6, Singheshwar Pd. Sinha, who are the most important witnesses for the prosecution, has submitted that even if the evidence of the prosecution is accepted on its face value, it cannot be said that there was any proper stock verification of the k. oil in the business premises of the appellants. He has referred to the evidence of P.W 4, Surendra Nath Pandey, D.S.P (Food), in which he has admitted that the measurement was done according to the dip rod method and 66.1 C.M k. oil deep was found in the tank. This witness has further admitted that the calculation, as to what was the actual measurement in litres of the K. Oil, was done as per the calibration chart, Ext. 6. In the cross-examination, this witness has admitted that on measurement as per the dip rod method 60.1 C.M deep k. oil in the tank was found. From the calibration chart, Ext. 6, it appears that in case 66.040 c.m deep k. oil is found in the tank, it would be equivalent to 7746.313 litres, whereas according to the said chart the equivalent of 60.960 c.m, in deep would come to 6914.804 litres. The case of the prosecution is that on verification 6646 litres of k. oil were found in the stock of the appellants and, therefore, there was excess of 526 litres of K. Oil beyond the stock register maintained by the appellants-wholesalers. Thus while referring to the aforesaid discrepancies in the case of the prosecution itself, learned counsel submitted that, in fact there was no proper physical verification of the stock of k. oil, lying in the business premises of the appellants. According to him, in any case even if the statements of the witnesses are accepted that on the basis of measurement either 66.1 c.m or 60.1 c.n deep of k. oil in the tank found, the prosecution cannot establish that on verification the stock to the extent of 6646 litres were found. According to the prosecution case itself, if the calculation is made by the Calibration chart contained in Ext. 6, the total stock would be either 7746.313 litres or 6914.305 litres. On the other hand, learned counsel appearing on behalf of the State; although vehemently argued that physical verification was correctly done and the calculation was made in accordance with calibration chart, Ext. 6, supplied by the appellants, could not explain as to how on the basis of the evidence of the prosecution, it can be said that excess of 526 litres of k. oil was found in the business premises of the appellants.

10. Upon consideration of the facts and circumstances of the case, as indicated above, so far it relates to the physical verification of the stock of k. oil, I am left with no option, but to accept the argument advanced on behalf of the appellants. From the evidence of P.W 4, S.N Pandey, D.S.P (Food), it is relevant that he was not sure as to whether on the basis of measurement done through the dip rod method, the k. oil in the tank was found 66.1 c.m deep or it was 60.1 c.m deep. In case both the figures referred to above are accepted and calculated on the basis of calibration chart, Ext. 6, in no case it would come to 6646 litres. The moment the case of the prosecution upon the evidence of P.W 4, Sri S.N Pandey becomes doubtful as to whether on measurement it was 66.1 c.m or 60.1 c.m it has to be held that the prosecution failed to prove its case beyond all reaonable doubts. From the evidence of the prosecution witnesses, as indicated above, it is clear that there was no proper and legal physical verification of the stock, therefore, no conviction can be upheld in the facts and circumstances of this case.

11. The case of the prosecution, which has also been supported by the witnesses, is that the measurement was done through dip rod method I have already mentioned, the contention of the learned counsel for the appellants that no physical verification of the stock can be done in the eye of law through the dip rod method. The law enjoins only provision, which has been indicated in Bihar Weights and Measures Act. The Indian Oil Corporation Ltd. itself, has deprecated the procedure for measurement through the dip rod method. Time without numbers, letters were issued to the retail as well as whole-sale dealers by the Corporation, clarifying therein that if at any time any Government authority, desires to know the actual stock of petroleum product, the same will have to be measured physically either through the pump or through litre to establish the correct quantity. The quantity in the tank, if measured through dip rod method it can indicate the approximate quantity. This quantity will be, however, different from the actual stock. It has also been clarified that the storage tanks are not physically calibrated by the Weights and Measures Department and they are only meant for the purpose of storing petroleum product. P.W 4, Sri S.N Pandey, has accepted, in his, cross-examination, that the length and width of the tank was not measured, nor he had any knowledge with regard to the length and width of the tank in question. Further P.W 6, Sri S.P Singh, the informant, has also, in his cross-examination, accepted that the diameter of the tank was not measured. The calculation was only done on the basis of the calibration chart, Ext. 6. This is not the case of the prosecution that the calibration chart, Ext. 6, was with respect to the tank in question. It has also come in evidence that the calibration chart of the tanks differs from tank to tank.

12. Upon consideration of the aforesaid facts, I fail to understand that unless the length and width of the tank in question was measured how, on the basis of the measurement done by, putting rod inside the tank, the prosecution came forward with a case that there was excess of 526 litres of K. Oil in the stock. The case of the prosecution is that although no measurement of the length and width of the tank was done, but the actual calculation was made on the basis of the calibration chart Ext. 6. Unfortunately, this is not the case of the prosecution nor there is any evidence that the chart Ext. 6, was with respect to the tank in question.

13. Reliance has been placed upon a decision of this court in the case of Madan Prasad Choudhary v. State of Bihar, reported in 1981 P.L.J.R 888. In the said case the Inspecting Officer had taken one basket load of coal weighing about 40 K.G as the basis calculating the total stock of coal. It was held that there was no proper physical verification of the stock and the method adopted by the Inspecting Officer was not free from doubt, because it was not a scientific or accurate method. While pointing out the aforesaid discrepancy, the case of the prosecution was quashed. In the present case also I have indicated above that there was no proper, actual and scientific physical verification of the stock.

14. Considering the aforesaid aspect of the matter, I feel myself persuaded to hold that the procedure adopted by the raiding party for taking measurement of the stock of k. oil was not legal and valid nor it was factually correct. The law enjoins only one method for measurement which has been laid down under the provisions of Bihar Weights and Measures Act, 1960.

15. Learned counsel appearing for the State pointed out the finding of the trial court with respect to the stock of k. oil found in the two drums. The trial court has held that from the evidence of the prosecution witnesses, it reveals that the drums belong to one Karmu Sah and Ajit Kumar. The instructions were issued by the Special Rationing Officer, contained in Exts. 7 and 7/1 putting restrictions against Kabra Brothers, the firm of the appellants, from making sale of k. oil. As per the instructions only the men of Ward Nos. 22 to 25 and 29 to 31 were entitled to purchase from the firm and none else. The ‘Thelas’ which were found in the premises of the appellants belong to Ward Nos. 19 and 2. The prosecution suspected that these Thelas belong to Karmu Sah and Ajit Kumar and they had brought the same for carrying those drums. The trial court recorded a finding that as per the instructions issued under Exts. 7 and 7/1 by the Special Rationing Officer, the appellants were not allowed to sell k. oil to any other person other than those indicated in the said instructions.

16. Although, there is no evidence that 400 litres of k. oil, found in the two drums, were sold to Karmu Sah and Ajit Kumar, nor there is any evidence that for those two drums the accused persons had contacted for sale of the said quantity of k. oil, with any other persons. The trial court has recorded a finding that over the Thelas, which were lying in the premises in question, ward nos. 19 and 2 were mentioned. It was obvious these two Thelas were kept by Karmu Sah and Ajit Kumar in the premises in question with some ulterior motive for profiteering in collusion with the accused persons. It has been further held that the accused persons failed to explain to the Raiding Party with regard to the presence of the Thelas. The accused persons also failed to explain as to why 526 litres of k. oil found in excess.

17. The argument of the learned counsel for the appellants in this regard has been that there is no evidence on the record to show that the appellants had sold any quantity of k. oil to any person nor there is any evidence that they had any intention to sell k. oil in black market. It has been further argued that there was no restriction, imposed against the appellants that k. oil should be sold only to the consumers of Ward Nos. 22 to 25 and 29 to 31.

18. The case of the prosecution is that the Special Rationing Officer, Patna vide his office order dated 8th October, 1985, as also 30th November, 1985, had issued direction to the firm in question that it can sell k. oil only to the consumers of Ward Nos. 22 to 25, and further to Ward Nos. 29 to 31. Those instructions have been marked Exts. 7 and 7/1. On the basis of the aforesaid instructions, it has been submitted on behalf of the prosecution that it was not open to the appellants to sell any quantity of k. oil to any other person belonging to other wards. It was obvious that the appellants have contravened the provisions of Bihar Trade Articles (Licensing Unification) Order, 1984, read with sections 3 and 4 of the Essential Commodities Act.

19. In this context, the evidence of P.W 5, S.K Verma, can be referred. This witness is the Stenographer of the Special Rationing Officer, Patna. He has proved the instructions issued by the Special Rationing Officer, marked Exts. 7 and 7/1. He has admitted in his evidence that although directions and instructions were issued under Exts. 7 and 7/1 by the Special Rationing Officer, but there is no record to show that these directions were served on the petitioners. It is true that the Special Rationing Officer, Patna, had passed orders in Exts. 7 and 7/1, while exercising his power under section 3 Sub-section (5) of the Essential Commodities Act. For ready reference, it would be better to quote the aforesaid provision, which reads as follows:

“(5) An order made under this section shall—

(a) in the case of an order of a general nature of effecting a class of persons, notified in the official Gazette; and

(b) in the case of an order directed to a specified individual be served on such individual—

(i) by delivering or tendering it to that individual; or

(ii) if it cannot be so delivered, or tendered, by affixing it on the outer door or some other conspicuous part of the premises in which that individual lives, and a written report thereof shall be prepared and witnessed by two persons living in the neighbourhood.”

20. As it appears from the contents of Exts. 7 and 7/1 that they were issued under section 3 sub-section (5)(b)(i). The case of the defence is that no such direction or instruction was ever served on the appellant. P.W 5, the only competent witness, who could prove as to whether the said directions/instructions were served with the appellants. Contrary to that, this witness has admitted in his evidence that there was no record or proof to show that these orders/directions were served with the Appellants. As per the provisions of section 3 of sub-section 5(b)(i)(ii), it has been made mandatory on the part of the authority issuing such order/direction, to get it served, individually on the person, against whom it is issued. In absence of any evidence led by the prosecution that these orders/directions were served with the appellants, it is difficult to hold that they had knowledge. Therefore, in absence of any evidence on the record that the orders/instructions issued under Exts. 7 and 7/1 regulating or prohibiting, sale of k. oil having been served/communicated individually to the appellants, they cannot be held guilty for the contravention of any such order/direction, if any.

21. Learned counsel for the appellants has further submitted that at one hand the finding of the trial court is that 526 litres of k. oil, in excess, were found beyond the quantity, which were, mentioned in the stock register and at the same time he has held that 400 litres of K. oil, kept, in two drums, were sold to Karmu Sah and. Ajit Kumar. If the first part of finding of the trial court, as aforesaid, to the extent that the stock of 526 Hires of K. oil were found in excess, is accepted then second part of the finding that out of the said quantity, 400 litres of K. oil, were sold to Karmu Sah and Ajit Kumar, becomes redundant and self contradictory.

22. The last submission of the learned counsel is that as per the provisions of section 12AA(i)(f) of the E.C Act, the offence under this Act shall be tried in a summary way and the provisions of section 262 and 285 (both inclusive) of the Code shall, as far as may apply to such trial. In this case, admittedly the procedure for summary trial was adopted. The evidence of the prosecution witnesses recorded by Sri A.P Sinha, Special Judge, E.C Act, Patna, but the case was finally heard and the judgment under appeal was delivered by Sri K.D Roy, Special Judge, E.C Act, Urban, Patna, who had not recorded evidence at any stage and so he could not have perused the evidence recorded by his predecessor, therefore, the trial, thus vitiated rendering the judgment and order of conviction as wholly without jurisdiction and void ab initio. The provisions of section 326 of the Code of Criminal Procedure, so far it relates to the general trial, it has been made clear that whenever any Magistrate after having heard and recorded the whole or any part of the evidence fin an enquiry or a trial, ceases to exercise jurisdiction therein and is succeeded by another Magistrate, the Magistrate so succeeding, may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor or partly recorded by himself. In other words in a case in which the evidence has been recorded the Magistrate, who has been transferred, the Magistrate succeeding him can deliver judgment on the basis of perusing such evidence, whereas sub-section (3) of section 326 shows that nothing in this section applies to summary trials or to cases in which proceedings have been stayed under section 322 or in which proceedings have been submitted to a superior Magistrate under section 325 of the Code of Criminal Procedure. Thus the provision of sub-sections (1), (2), (3) of section 326 does not apply to the cases which are being summarily tried, under the provisions of section 12AA(i)(f) of the Essential Commodities Act. On the basis of the aforesaid facts it has been submitted that Sri R.D Roy, Special Judgs, E.C Act had no jurisdiction to peruse the evidence recorded by his predecessor and, therefore, the finding of conviction recorded by him is ab initio void and illegal for want of jurisdiction. In this context, a reference has also been made to the well-known decision of the Supreme Court in the case of Pyare Lal v. State of Punjab (A.I.R 1962 Supreme Court 690).

23. On the other hand, learned counsel appearing on behalf of the State has contended that the provision of Section 326(3) of the Code of Criminal Procedure is not attracted to the summary trial as incorporated under section 12AA(i)(f) of the Essential Commodities Act because the same is special provision and it has to be dealt with under the provisions mentioned therein. He has further submitted that even if, it is found that the provision of Section 326(3) of the Code of Criminal Procedure is attracted, now at this stage, it is not open to the appellants to challenge the jurisdiction or competency of the trial court. They have submitted to the jurisdiction of the trial court and at this stage, it cannot be challenged. He has referred to a decision of the Full Bench in the case of Fulena Thakur v. Devi Thakur (1978 Patna-23 (Full Bench). True it is in the aforesaid judgment, it was laid down that the petitioners never objected to the case being heard by the Magistrate and took the chance of success, the case having been decided against them, they cannot now be permitted to challenge the final order of the Magistrate, as being without jurisdiction. But it has to be noticed that there was no provision for recording any evidence during the course of enquiry under the aforesaid proceeding. Facts of the aforesaid case are quits different. The law applicable in the present case would be that the officer, who recorded the evidence, was only competent to record finding.

24. There is no controversy that the general principle of law is that a Judge or Magistrate can decide a case only on the basis of the evidence taken by him. The provision as laid down under sub-section (1) of section 326 of the Code of Criminal Procedure, shall not be applicable in the present case because the summary trial of the present case was to be conducted by the Special Judge. The successor, Special Judge had no authority under the law to proceed with the trial of the case from the stage at which his predecessor had left it. Therefore, it has to be held that the conviction recorded by the successor Special Judge against the appellants, upon the evidence recorded by his predecessor, without recalling the witnesses, cannot be upheld as the successor-Special Judge had not himself heard the evidence. The illegality or irregularity cannot be cured because the question arises for the competency of the Special Judge. According to the cardinal principle of law, it is a right of an accused that his case be decided by a Judge, who has heard the whole of it.

25. Considering the entire facts and circumstancss of the case as also the submissions of the learned counsel appearing on behalf of the parties referred to above, I am left with no option, but to hold that the prosecution has failed to prove its case beyond all reasonable doubts. It has already been indicated above that the case of the prosecution that 526 litres of K. oil were found in excess on the basis of physical verification his been held to be doubtful. In that view of the matter, I am left with no option but to hold that the prosecution has miserably failed to prove its case beyond all reasonable doubts.

26. In the result, the appeal succeeds and the appellants are acquitted of the charges. The conviction and sentences awarded against them are set aside. The appellants, who are on bail, are discharged from the liabilities of their bail bonds.