Secretary Marketing Committee vs Amin Chand

T.R. Handa, J.—The question involved in Cr. Appeals No. 105, 106 and 107 of 1979, begin the same, it is considered expeditious to dispose, of all these three appeals by this common order.

The Appellant is the Secretary, Marketing Committee, Kullu. In that capacity, he had filed separate complaints against each of the Respondents in the above-mentioned three appeals u/s 32(1) of the Himachal Pradesh Agriculture Produce Market Act, 1969 (hereinafter called as the Act), in the Court of the Chief Judicial Magistrate, Kullu.

The common allegations found in all these three complaints was that on 15-10-1977 the Appellant had visited the shops of the Respondents at Dhalpur Kullu and found these Respondents keeping cauliflower, potatoes, onion, garlic, peas, radish and eggs etc. for sale. The Appellant demanded of the Respondents to produce the requisite licence for dealing in such commodities as required u/s 4(3) of the Act. The Respondents, however, were unable to produce any such licence. They, therefore, were alleged to have committed an offence punishable u/s 32(1) of the Act. The learned Chief Judicial Magistrate on a consideration of the evidence adduced in that case as also the relevant provisions of Section 4(3) of the Act and Rule 10 of the rules framed under the Act, came to the conclusion that the Respondents being petty shopkeepers were exempted from obtaining the licence. In view of this exemption, they had not committed any offence and were entitled to acquittal.

In challenging the acquittal of the Respondents in these appeals, the only argument advanced on behalf of the Appellant is that there was no automatic exemption in favour of the Respondents from taking licences under the Act and unless they had applied for and obtained such exemption, they were bound to obtain the licences for dealing in any agriculture produce and in the absence of that licence they had all rendered themselves liable for penalty u/s 32 of the Act. In order to appreciate the arguments advanced by the learned Counsel for the Appellant, it looks expedient to advert to the provisions of Section 4(3) of the Act and Rule 10 of the Rules framed thereunder. Section 4(3) reads as:

Declaration of notified market area-

(1) .. .. .. ..

(2) .. .. .. ..

(3) After the date of issue of such notification or from such later date as may be specified therein, no person, unless exempted by rules framed under this Act, shall either for himself or on behalf of another person, or of the Government within the notified market area, set up, establish or continue or allow to be set up, established or 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 bye-laws made there under and the conditions specified in the licence:

Provided that a licence shall not be required by a producer who sells himself or through a bona fide agent, not being a commission agent, his own agricultural produce or the agricultural produce of his tenants on their behalf or by a person who purchases any agricultural produce for his private use.

(4) .. .. .. ..

According to this provision, a person dealing in agricultural produce is required to obtain a licence in accordance with the provisions of the Act and the Rules and bye-laws made there under unless he is exempted by the rules framed under the Act. This provision, therefore, does contemplate the framing of rules which may exempt certain categories of persons or dealers in agricultural produce from the obligation of obtaining the licence. Rule 7 provides that any person desiring to obtain a licence shall apply to the Secretary or any officer authorized by the Chairman of the Board along with the prescribed fees. Rule 10 which deals with the exemption granted in favour of certain categories of persons from the obligation of taking licence. This rule reads:

Persons exempted from taking licences:

(1) The following persons shall be exempted from taking a licence for the purchase of agricultural produce:

(i) confectioners and other purveyors of parched, fried or cooked food;

(ii) oil pressers using indigenous machines called kohlus;

(iii) hawkers and petty retail shopkeepers who do not engage in any dealing in the agricultural produce other than such hawking or retail sales;

Explanation-For the purpose of this clause and Clause (ii), Sub-rule (2) a dealer whose turnover of the agricultural produce does not exceed Rs. 800.00 (Rupees eight hundred only) in any month of the year or Rs. 6,000 (rupees six thousand only) during the year for which exemption is claimed, shall be treated as a petty shopkeeper. The Secretary of the Himachal Pradesh Marketing Board will be the authority to declare a person as a petty shopkeeper and his decision shall be subject to the appeal to the Board within 60 days from the date of decision of the Secretary.

iv) persons who have been granted by the Government a contract for the purchase and sale of tobacco and deal exclusively in tobacco;

(v) officials of the Himachal Pradesh Government and/or Indian Union when making purchase for the State or the Indian Union,

(2) The following shall be exempted from taking a licence for the sale of agricultural produce:

(i) banks when proceedings against any agricultural produce belonging to a producer or a liensee u/s 8 of the Act, to whom money has been advanced against the security for such agricultural produce;

(ii) hawkers and petty retail shop-keepers who do not engage in any dealing in any agricultural produce other than such hawking or retail sales;

(iii) officials of the State Government and Central Government when making sales on behalf of the Government for the State and Indian Union;

(iv) persons who have been granted a contract by the Government for the purchase and sale of tobacco and deal exclusively in tobacco.

(3) .. .. .. .. ..

These are the only relevant provisions which deal with the licence required to be obtained u/s 4(3) of the Act and for exemption from taking such a licence. Where as a person desiring of obtaining a licence is required to apply to that effect under Rule 7 there is no provision either in the Act or in the rules for a person to apply for exemption from obtaining the licence within the contemplation of Section 4(3) of the Act. The only logical conclusion is that a person who is exempted under Rule 10 need not apply either for grant of licence or for claiming exemption for taking such licence. It is for the person concerned to decide taking into consideration his monthly and annual turnover whether he is required to obtain the licence or his case is covered by the exemption granted under Rule 10. In case he does not fall in the categories of persons exempted under Rule 10 and still engages himself in any dealing in the agricultural produce without obtaining a licence, he would certainly render himself liable for penalty prescribed u/s 32 of the Act. But before he can be found so liable, it has to be established and established by the prosecution only that he was required to obtain a licence under the Act and the rules framed. There under and that his case does not fall within the exemption granted by Rule 10. In the instant case, as rightly recorded by the trial Court, the complainant Appellant did not adduce any evidence to show if the turnover of any of these Respondents exceeded the limits mentioned in Rule 10 and that he was required to obtain a licence. None of the Respondents can, therefore, be said to have violated any provision of the Act or the Rules framed there under by retail-sale of agricultural produce without obtaining, licence. The orders of acquittal recorded by the trial Court are perfectly justified and calls for no interference. All these appeals are dismissed.