Om Parkash vs State of Punjab

Dr. Sarojnei Saksena, J.

Petitioneraccused has challenged his conviction under Section 37 of the Punjab Agricultural Produce Markets ACt, 1961 (for short the Act) whereby he is sentenced to pay a fine of Rs. 200/ and in default of payment of fine to undergo Simple imprisonment for 7 days.

Adumbrated facts of the case are that a complaint was filed by the Secretary, Market Committee, Sangrur on the allegation that petitioner is running a Flour Grinding Mill (Atta Chakki) in the area of Chhota Chowk Sangrur. He is engaged in the business of grinding maize, wheat etc. He also sells wheat flour and is running a flourishing business. Under the law he is required to obtain a licence from the Market Committee, Sangrur and is also supposed to pay the requisite market fee. Notice dated 20.5.1992 was given to the petitioneraccused calling upon him to obtain a licence from the Market Committee, Sangrur but he failed to apply for the licence. Subsequently notices dated 8.6.1992 and 7.11.1992 were also given to the accused but still he failed to obtain the requisite licence. Thus he is liable to be punished under Section 37 of the Act.

When the accused appeared before the learned Magistrate notice under Section 39 of the Act was given to him incorporating the substance of the accusations. He pleaded not guilty.

During trial, complainant examined Surinder Singh Peon, AW1, Mohinder Kumar, Mandi Supervisor AW2. After being examined under Section 313 Cr.P.C. petitioneraccused examined Balwinder Singh, Mandi Supervisor, Market Committee as DW1.

On close scrutiny of the evidence, the learned Magistrate holding the petitioneraccused guilty of the said offence convicted him as stated at the outset.

Petitioneraccused preferred an appeal which was also dismissed on 13.1.1997.

Learned counsel appearing for the petitioneraccused vehemently argued that this complaint was filed by the Secretary of the Market Committee, Sangrur though Section 39(2) of the Act provides that the prosecution under this Act may be instituted by any person duly authorised by a resolution passed by the Board or Committee in this behalf. He also pointed out that under Section 2(b) of the Act `Board'' is defined and its subclause (d) defines `committee''. No such resolution was appended with the complaint. Therefore, the very institution of the complaint was without any authority of law. He also submitted the prosecution has failed to prove that the area where the petitioneraccused is running the Flour Mill falls within the notified market area. He also submitted that its explanation provides that for the purposes of this clause and clause (b) of subrule (2) of Rule 18 of the Punjab Agricultural Produce Markets (General) Rules, 1962 (for short the Rules) a person whose turnover of sales and purchases of agricultural produce does not exceed rupees one lac during a year shall be treated as a petty shop keeper provided that a dealer importing agricultural produce from outside the State of Punjab shall not be treated as a Hawker or petty retail shop keeper.

According to the learned counsel under Rule 18(1)(e) of the Punjab Agricultural Produce Markets (General) Rules, 1962 (for short the Rules), Hawkers and petty retail shop keepers who do not engage in any dealing in agricultural produce other than such hawking or retail purchases, are exempt from taking the licence for the purchase of agricultural produce under sub clause (3) of section 6 of the Act. He also drew attention to subclause (a) of Rule 2A of the Rules which runs as under :

"(2A) The following shall be exempt from taking a licence for processing of agricultural produce, namely :

"(a) Chakkiwalas and Arewalas who do not make any sale or purchases of agricultural produce but have installed their chakkis and Aras (Saw Mills) only for grinding of agricultural produce or for sawing of timber for using it as a fire wood, as the case may be."

He argued that since the petitioneraccused is only a Ghakkiwala and he is not making any sale or purchase of agricultural produce, he was not liable to obtain any licence. Referring to Rule 31 of the Rules, he pointed out that this rule provides that every licenced dealer and every dealer exempted under Rule 18 from obtaining a licence, shall submit to the Committee a return in Form `M'' showing his purchase and sale of each transaction of agricultural produce within 7 days of the date of the transaction.

Lastly, learned counsel contended that along with Criminal Misc. No. 15656 of 1997 he submitted the Trading account, profit and loss account and balance sheet for the years 198889 to 199596 as Annexures A1 to Annexure A8 to show that his annual turn over does not exceed one lakh. In this connection, he also vehemently argued that it was the duty of the prosecution to prove that the petitioneraccused is dealing in any sale or purchase of agricultural produce and his annual turn over is beyond one lakh and therefore he was liable to take licence from the Market Committee and to pay the requisite market fee.

Learned counsel appearing for the complainant submitted that in this case the Committee was superseded and an Administrator was appointed. Under the orders of the Administrator, the Secretary submitted a complaint under his signatures. Therefore, it cannot be said that the complaint was not filed by a competent person. He also pointed out that the defence witness himself admitted that the area where the petitioner is running his Chakki falls within the notified market area. This witness also admitted that when the Secretary checked the premises of the accused he was present. At that time 14 bags of wheat, one bag of maize without bills and six quintals of wheat flour were lying therein. Rate list was also displayed outside the shop showing the sale price of wheat flour. Therefore, even though the prosecution has not adduced evidence to that effect, from the evidence adduced by the accused it was duly proved that he was running a business of selling wheat and wheat flour and was not only running Atta Chaki for grinding grain of others. If really he was not selling the wheat flour or wheat from his Chakki, there was no necessity of keeping 14 bags of wheat, one bag of maize without bills and 6 quintals of wheat flour. He also pointed out that when notice was given to the petitioneraccused to take licence it was his duty to submit his account books before the competent authority to show that his annual turnover is not beyond Rs. one lakh, therefore, he is not liable to take the licence. Despite service of three notices, accusedpetitioner failed to submit his account books, therefore, now this plea is not open to him to say that his annual turn over for the years 198889 to 199596 does not exceed rupees one lakh. If he would have submitted his account books before the competent authority when notices were given to him that authority would have checked his account books to arrive at a conclusion as to whether his annual turn over exceeds rupees one lakh or not. Simply, if he has submitted these account books in the High Court at the time when the revision is under consideration this cannot be treated as an evidence in the case and on that count petitioneraccused cannot take any advantage.

After hearing the rival contentions, in my considered view, there is no merit in this revision petition.

Admittedly when the accused was prosecuted, no Committee was in existence. This fact is proved by Mohinder Kumar, AW2. Ex. P.8 is the copy of the order of the Administrator for initiating legal proceedings against the petitioneraccused. Sections 35 and 36 of the Act give power to the Government to supersede any committee if it is incompetent to perform its functions and the effect of the supersession would be that the Members including the Chairman, Vice Chairman of the committee would be deemed to have ceased to be Members of the Committee. Subsection 2(c) further provides that the State Government may in its discretion by an order constitute other new committee as provided under section 12 of the Act or such other authority for carrying out of the functions of the committee and of its Chairman and other Members, as the State Government may deem fit. It is not disputed that when the petitioner was prosecuted, the committee was superseded and an Administrator was appointed by the Government to look after the affairs of the committee.

Section 2(r) defines `Secretary'' as an Executive Officer of a Committee and includes an Assistant Secretary or a person officiating or acting as Secretary.

Rule 21(2) of the Punjab Market Committees Byelaws provides that unless otherwise provided for in the Act, the Rules and these Byelaws, all letters, applications, notices and complaints on behalf of the committee may be given, issued and lodged by the Secretary under his hand and seal of his office. Thus it is apparent that if the complaint was lodged by the Secretary under his own signature it cannot be said that it is lodged by an incompetent person or not by a duly authorised officer.

Therefore, the objection raised with regard to the competence of the complaint lodged by the Secretary is not tenable.

Learned counsel argued that the area where the petitioner is running Chakki does not fall within the notified market area. Learned appellate Court has noted that Balwinder Singh DW1 has stated on oath that the entire area of city Sangrur has been notified as market area. During arguments, learned counsel could not say that the lower appellate court has wrongly quoted this statement of DW1. If the accused himself has adduced this evidence, he cannot raise such an objection that his Chakki does not fall within the notified market area.

Section 6(3) of the Act enjoins upon a person to obtain a regular licence for purchase, sale, storage and processing of the agricultural produce which may be notified. It also provides that after such a notification, no person unless exempted by rules made under this Act, shall, either for himself or on behalf of another person or of the State Government within the notified market area, set up, establish or continue or allow to be continued any place for the purchase, sale, storage and processing of the agricultural produce so notified, or purchase, sell, store or process such agricultural produce except under a licence granted in accordance with the provisions of this Act, the rules and byelaws made thereunder and the conditions specified in the licence. Wheat and Maize are among the articles so notified as mentioned in the schedule referred to in section 2(a) and Section 38 of the Act.

`Dealer'' is defined in Section 2(f) of the Act which means any person who within the notified market area sets up, establishes or continues or allows to be continued any place for the purchase, sale, storage or processing of agricultural produce notified under subsection (1) of section 6 or purchases, sells, stores or processes such agricultural produce. Thus it is apparent that every dealer as defined in section 2(f) of the Act has to obtain a licence from the Market Committee.

Rules 18(1)(c) and 18(2)(b) of the Rules exempt Hawkers and petty retail shopkeepers, who do not engage in any dealing in agricultural produce other than such hawking or retail sale and purchase. Its explanation provides that a person whose turn over of sales and purchases of agricultural produce does not exceed one lakh rupees during a year, shall be treated as a petty retail shopkeeper. Petitioneraccused has filed Crl. Misc. 15656 of 1997, along with it he has filed Annexures A1 to A8 showing his trading account, profit and loss and balance sheets for the financial years 198889 to 199596. On the basis of these documents, the learned counsel for the petitioner argued that as the annual turn over of the petitioner does not exceed beyond Rs. one lakh, in these years, he was not liable to take any licence from the licensing authority under the Act. Even this argument is not available to the petitioneraccused. When before filing of the complaint three notices were given to him under section 37 of the Act and he was asked to take a licence at that time he ought to have produced his account books before the licensing authority to satisfy him that as his annual turn over is below rupees one lakh, he is not liable to take any licence. If the petitioner is filing these documents in the High Court that will not exonerate him from the criminal liability which he has already incurred by his own inaction.

Even the last contention of the learned counsel for the petitioner does not help the petitioner. Petitioner''s own witness Balwinder Singh, DW1 stated before the lower court that when petitioner''s premises was checked by the Secretary he was also present. At that time in the petitioner''s premises 14 bags of wheat, one bag of maize without bills and 6 quintals of wheat flour were lying therein. Even the rate list showing the sale price of wheat flour was displayed outside the shop. Petitioner ought to have explained the circumstances appearing against him in his own evidence. If he was not selling the wheat, maize and wheat flour from his chakki what for rate list was exhibited at the outer portion of the shop ? If he was only grinding the grain brought by the customers in his chakki what for he was keeping in his chakki 14 bags of wheat and one bag of maize and 6 qtls. of wheat flour ?

Petitioner''s learned counsel strongly stressed that it was the duty of the prosecution to prove that the annual turn over of the petitioner was beyond rupees one lakh or that he was dealing in the sale, purchase of the wheat, maize and wheat flour. Simply, because Balwinder Singh stated so, petitioner cannot be held guilty for the said offence.

Under Rule 31 of the Rules every licensed dealer and every dealer exempted under Rule 18 is duty bound to submit to the committee a return in Form M showing his purchase and sale of each transaction of agricultural produce within 7 days of the date of the transaction. Hence, if accused wanted to take shelter of this defence plea he was required to prove it. Its initial burden of proof was on him.

Admittedly, in criminal case initial burden is always on the prosecution to prove its case beyond a shadow of doubt. If the accused in his statement recorded under section 313 Cr.P.C. or in the evidence adduced by him admits/proves certain facts which can be used against him to prove the offence for which he is charged with, the prosecution is entitled to use that material against the accused. In his statement under section 313 Cr.P.C. accused can deny or repudiate the circumstances appearing against him in the prosecution evidence. But if he admits certain facts, adduces some evidence, thereby admitting certain facts and circumstances proving the offence against him, he cannot say that this evidence since it has come from the mouth of the defence witness cannot be used against him. For holding this view, I take assistance from a judgment of the Apex Court in State of U.P. v. Lakhmi, JT 1998(1) SC 679 wherein the Apex Court has considered the effect of answers given by the accused when he is examined under section 313 of the Code. The Apex Court observed :

"The need of law for examining the accused with reference to incriminating circumstances appearing against him in prosecution evidence is not for observance of a ritual in a trial, nor is it a mere formality. It has a salutary purpose. It enables the Court to be appraised of what the indicted person has to say about the circumstances pitted against him by the prosecution. Answers to the questions may sometimes be flat denial or outright repudiation of those circumstances. In certain cases accused would offer some explanations to incriminative circumstances. In very rare instances accused may even admit or own incriminating circumstances adduced against him, perhaps for the purpose of adopting legally recognised defences. In all such cases the Court gets the advantage of knowing his version about those aspects and it helps the court to effectively appreciate and evaluate the evidence in the case. If an accused admits any incriminating circumstances appearing in evidence against him there is no warrant that those admissions should altogether be ignored merely on the ground that such admissions were advanced as a defence strategy.

Answers of the accused, when the contain admission of circumstances against him are by themselves, delinked from the evidence be used for arriving at a finding that the accused had committed the offence."

The learned counsel for the petitioner has relied on Market Committee, Ambala Cantt. v. M/s Khukrain Bros, 1992(1) CLJ (C.Cr. & Rev.) 97. Even this judgment does not help the petitioneraccused. In this judgment it is held unless it is made out that articles were sold and weighed in the area of notified market committee, respondent was not required to obtain any licence or pay market fee. But in this case as I have held above, Balwinder Singh, DW1 admitted that the entire area of city Sangrur has been notified as market area.

Thus finding no merit in the revision petition, it is hereby dismissed.