D.G.R. Patnaik, J. - (1.) THE appellants were tried and convicted for the offence under Section 7 of the Essential Commodities Act and sentenced for violating Sub -section (2)(d) of Section 3 of the Act. While appellants No. 2 and 3 Rajpati Sahu and Radha Krishna Jaiswal were found guilty for abetment and sentenced to rigorous imprisonment for one year each, appellant No. 1 Sidheshwar Sahu, was convicted for offences under Section 7 of the Essential Commodities Act and sentenced to undergo rigorous imprisonment for two years by the Special judge, Gumla in G.R. No. 35 of 1987.
(2.) BRIEF facts of the case is that on 2.6.1987, the informant police officer on the basis of a confidential information reached Nagar Siskari at 10.30 a.m. and intercepted a truck bearing Registration No. BRV 4971 and found substantial quantity of wheat and other foodgrains loaded thereon. The driver of the truck along with another person, namely Sidheshwar Sahu (Appellant No. 1) who was travelling in the vehicle, were apprehended. On their purported failure to offer any reasonable explanation or produce any document for possession of 45 bags of wheat, both of them were arrested. They are alleged to have stated before the informant police officer that they had lifted the food grains from the public distribution shop of Radhe Krishna Sahu of Basia (PW3) and Rajpati Sahu appellant No. 2. Altogether eight witnesses were examined by the prosecution out of whom three were declared hostile while one of them was a formal witness. Learned trial court placing reliance on the testimony of the informant -cum -investigating officer and by drawing an inference that since no person had come forwarded to claim the ownership of the seized food grains and therefore, the prosecution case that the seized food grains recovered from the possession of the accused persons is correct, had recorded finding of guilt against all the appellants.
(3.) ASSAILING the judgment of conviction and sentence, learned counsel has raised several grounds, prominent amongst which are: (i) that the entire trial against the accused is vitiated on account of the fact that the special judge who had passed the order of conviction has seriously erred by considering and accepting the evidence which he had not recorded himself. Leaned counsel explains that the procedure for trial in respect of offences under Section 7 of the EC Act has been prescribed as a summary trial which essential requires that the magistrate who records statement of witnesses should himself record his finding on the basis of the evidence so recorded and his successor presiding officer cannot proceed to record any finding on the basis of the evidence recorded by the preceding officer (predecessor). Adverting to other grounds, learned counsel explains that the trial court has committed serious error in placing implicit reliance on the evidence of the informant /investigating officer ignoring the fact that the informant who himself is a witness, has taken up the investigation of the case. Learned counsel further argues that the trial court has failed to take into consideration that none of the independent witnesses has supported the prosecution case either on the allegation of seizure of food grains or the presence of the appellant No. 1 at the time of interception of the truck by the informant, nor has any witness confirmed that the food grains were lifted from the shop of PWs 2 and 3. Learned counsel adds further that the trial court has committed a serious error by ignoring the fact that the name of the appellants No. 2 and 3 had allegedly transpired in the statement of the driver who was apprehended and the prosecution has not examined the driver of the vehicle as a witness against the appellant. Learned counsel for the State, though tried to controvert the grounds advanced by the learned counsel for the appellant, but has conceded that the learned special Judge who delivered the judgment of conviction against the appellants in the instant case, has acted upon the substance of statement of witnesses recorded by his predecessor in office.;