1. This is a Rule against an order of conviction for contravention of cls. 4, 10 and 11 of Ordinance 35 of 19-13 read with certain notificatibns and is made under Clause 13 (1) and (2) of the said Ordinance. The accused was sentenced to two months' rigorous imprisonment and to pay a fine of Rs. 1000, in default to suffer rigorous imprisonment for one month.
2. The prosecution case was that on 9th January 1945 the accused sold vegetable ghee to the Sub-Inspector at the rate of Rs. 2-3-0 per seer, a price much above the controlled rate. A first information was lodged and eventually a charge-sheet was submitted in which the offence committed was stated to be selling ghee at above the controlled rate, refusal to give a cash memo and failure to hang up the price list. The conviction was upheld on appeal by the learned Sessions Judge of Jessore.
3. The case was tried summarily. The accused came before the Court on 15th January and this summary trial took 18 months, the conviction eventually being held on 3rd August 1946. Various objections have been taken to the trial most of which do not appear to us to be of substance. Although the case took 18 months, the Court did not find time properly to exhibit the necessary orders and sanctions, but they are in fact either on the record or matters of record in the gazette such that the absence of formal marking as exhibits is not serious.
4. The record however shows two defects which the learned advocate on behalf of the Crown is unable to dispose of. Although the case is tried summarily, the case is a warrant case and it is necessary that the accused should be charged. There is nothing on the record to show clearly that the accused was in fact charged. We have examined the record and the order-sheet. There is no mention of the process of charging the accused having been gone through unless we are to guess that this was done from the record in the summary form of the accused's plea. This plea incidentally is not dated. The second defect is that there is nothing whatever to show that the accused was examined under Section 342, Criminal P.C. There is no record of this in the order sheet. On the contrary, the order of 8th July 1946 which specifically mentions the examination and cross-examination of the remaining witnesses, and where we would expect specific reference to the fact that the accused had been examined contains no such reference. The ground was taken when the Rule was issued and the learned Magistrate has offered an explanation. He there contends that the accused made a certain plea and this refers apparently to what appears on the record under the heading 'the plea of the accused and his examination, if any', but the same plea cannot do duty both to show that the accused was charged and also to show that the accused was examined under Section 342, Criminal P.C. This summary form under Section 263, Criminal P.C., as used is defective and has often caused trouble as it does not clearly supply a separate space or cage for the plea of the accused when charged as well as for his examination under Section 342, Criminal P.C. In our opinion, there is nothing to show, and we do not accept that the accused was ever examined in this case under Section 342, Criminal P.C. The conviction in the circumstances cannot be sustained; having regard to the enormous length of time taken over this ease we see no reason to order a retrial or why the accused should be further harassed.
5. We accordingly make the Rule absolute, and set aside the conviction and sentence passed on the accused. The fine, if paid, will be refunded. The accused-petitioner is directed to be discharged from his bail.
6. I agree.