P L D 1960 Dacca 129 (PLP)

K. M. Sobhan for Respondents. SATTAR, J.‑The petitioner was prosecuted for being in posses sion of 20 maunds of rice in contravention of Government Notification No. 2348‑FD, dated 9‑3‑57.

2. The prosecution case is that, on a search being made on 14‑5‑57, the petitioner was found in possession in his house of 20 maunds of rice and, as he was a non‑producer and could not keep more than 2 maunds and 10 seers of rice for the six members which consisted of his family, there was an excess of 17 maunds and 30 seers of rice in his possession and, as such, he contravened Government Notification No. 2348‑FD, dated 9‑3‑57, and com mitted an offence punishable under section 6 of Act I of 1956 (East Pakistan Control of Essential Commodities Act, 1956).

3. The petitioner was tried by Mr. M. Zaman, a Magistrate of the first Class, Nilphamari, under Act X of 1956. The learned Magistrate found that the stock of rice that was‑ found in his possession was kept by him for consumption of his family and, therefore, he was guilty under section 6 of Act I of 1956. The learned Magistrate negatived the defence of the accused that the rice was kept by him as a dealer in food‑grains.

4. In support of the Rule issued in this case, Mr. Hamidul Haq Chaudhury, the learned Advocate for the petitioner, has raised two points. He has firstly contended that the finding of the learned Magistrate that the stock in question was kept by the petitioner for consumption of his family members is based on no evidence. In view of the order that we propose to make in this case, it is not necessary for us to go into this question. The second point that has been urged before us is that in view of the provisions of section 6 of Act I of 1956 the procedure that should have been followed in this case is the warrant procedure and, as the learned Magistrate has followed the summons procedure, the whole trial must be held to have been void. Section 6 of Act I of 1956 pro vides that if any person contravenes any order made under sec tion 3, he shall be punishable with imprisonment for a term which may extend to three years or with fine or with both. It is con tended that in view of the maximum punishment provided in this section and in view of the provisions of section 7, subsection (2) of Act X of 1956, which provides that a Special Magistrate trying an offence under this Act shall have power to try such offences sum marily and in trying such offences such Magistrate shall follow the procedure laid down in the Code of Criminal Procedure, 1898, for summary trials, the procedure in this case that should have been followed is the warrant procedure. The Second Schedule to the Criminal Procedure Code lays down that in cases of offences against laws other than the Pakistan Penal Code if an offence is punishable with imprisonment for three years and upwards the procedure that is to be followed is the warrant procedure. Mr. Subhan, the learned counsel who appears for the respondents, concedes that in view of the above provisions the procedure in this case that should be followed is the warrant` procedure. Mr. Subhan, however, contends that in this case the learned Magistrate did actually follow the warrant procedure. It appears from the records of this case that the three prosecution witnesses who were examined on behalf of the prosecution were so examined on 31‑8‑57 and they were also cross‑examined on that date. On a perusal of the records, we are convinced that the procedure that was followed by the learned Magistrate was the summons procedure and not the warrant proce dure. After this being pointed out, the learned counsel also seriously did not dispute it.

5. Having regard to this fact we must hold that, as a wrong procedure was followed at the trial, the conviction of the accused cannot be sustained.

6. We, therefore, set aside the conviction and sentence of the petitioner and direct that he be re‑tried in accordance with law. Let a writ of certiorari issue to the above effect. The rule is made absolute without any order as to costs. ISPAHANI, J.‑I agree. K. B. A. Rule made absolute.