State of Rajasthan vs Sukan Raj and Others

J.R. Chopra, J.—These appeals are directed against the judgments of the learned Munsif and Judicial Magistrate, Pali dated 22-9-1978 and relate 10 acquittal of accused-respondents of the offences under Sections 28(1), (2) and (3) of the Rajasthan Agricultural Produce Markets Act, 1961 (for short ''the Act'' hereinafter). They raise a common question and, therefore, I propose to dispose of these appeals by a single judgment.

S.B. Criminal Appeals No. 457/1978, 473/1978 and 474/1978 relate to the cases where on checking, a particular quantity of cotton-seed was found in possession of the accused-respondents and it was brought into the market area Pali after purchasing it outside the mark it area whereas in all the remaining appeals, the accused-respondents are alleged to be dealers in cotton seed doing business as retail Traders in the market area of Pali without obtaining any licence from the Market Committee, Pali inspite of the issue of notices to them. In S.B. Criminal Appeals No. 475/1978, 473/1978 and 474/1978 also, notices were issued to the accused-respondents to obtain the licences from the Market Committee whereas in the remaining cases, on checking no definite quantity was found to have been brought into the market area of Pali. In all the 9 appeals, it has been commonly alleged against the accused-respondents that they bring cotton seed from Gujarat and sell the same as Retailers in the market area of Pali on the ground that the Retailers are exempted from obtaining the licences from the Market Committee. The State has contested that contention of the Retailers and has alleged that in fact, the intention and purpose of the Act is to get the maximum benefit to the producers and the consumers and to avoid the middle man agency and, therefore, the provisions of the Act and the Rajasthan Agricultural Produce Market Rules, 1963 (here in after referred to as ''the Rules'') apply to the Retailers as well. Thus, it is an admitted position on behalf of the appellants that the accused-respondents are retail Traders in cotton seed. The accused-respondents have also admitted in their statements u/s 314 Cr.PC that cotton-seed is not produced in the market committee area of Pali and as such they purchase this produce from Gujarat in wholesale, bring it to the market area of Pali and then sell it as Retailers to the consumers directly. Thus, this fact is not disputed that the cotton seed is purchased in Gujarat and then it is brought to the market area of Pali and is being sold to the consumers in retail sale directly. In view of this admitted position regarding facts, I need not give the details of the facts of each separately.

Section 2(xiv) of the Act defines "retail sale''. It lays down that ''retail sale'' means a sale of any agricultural produce not exceeding such quantity as may be determined by bye-laws u/s 37 or Section 38, to be a retail sale in respect of such agricultural produce. The Krishi Upaj Mandi Samiti, Pali (here in after referred to as ''the Market Committee'') has framed the bye-laws in this respect and in the said bye-laws, the retail-trader has been defined as under:

QqVdj fodzsrk ls rkRi;Z ml O;fDr ls gS tks miHkksDrkvks dks fodz; gsrq e.M+h es izfrfnu dqy feykdj vf/kdre 500 :Ik;s rd dh lhek es d`f"k ftUlh dks dz; djrk gS vkSj mldk iath;u e.M+h lfefr es gqvk gS A

Mr. R K. Soni, learned Public Prosecutor appearing on behalf of the State has submitted that application of the Explanation appended to the provisions of Section 4(2) of the Act came up for consideration before this Court in Firm Multanmal Pukhraj v. Agricultural Produce Market Committee `A'' Class, Paota, Jodhpur S.B. Civil Writ Petition No. 646 of 1980, decided on August 22, 1980), wherein a learned single Judge of this Court observed as follows:

It would, thus, be seen that so far as the business activity, either of wholesale nature or of retail nature is concerned, they are all governed by the prohibition of Sub-clause (2). All that has been exempted is an inter se transaction of sale or purchase between producers of agricultural produce to a consumer directly. Neither the wholesaler nor a retailer can intervene as a middleman in this transaction. The object appears to be that if the sale and purchase is not a business activity for earning profits by the middleman, that is, the whole-seller or a retailer but if it is a simple transaction of sale of an agricultural produce, by the retailer of this to another of his own class or a consumer directly, then it is not necessary to provide for its regulation by the Committee.

It was further observed as follows:

The exemption would only govern the cases of producers who deal with producers inter se or who sell the agricultural produce to the consumers directly in retail sale. It would not cover the cases of thousands of retail sellers who are doing the business of purchasing agricultural produce from the producers and selling it to the consumers. I have, therefore, no hesitation in holding that the explanation to clause (2) of Section 4 of the Act has got no application to the case of the petitioner who as per his own saying is a retail seller.

Against this decision, the petitioner preferred a special appeal before a Division Bench of this Court and while disposing of that appeal, a Division Bench of this Court, (consisting of Hon''ble the Chief Justice Shri J.S. Verma and Hon''ble Milap Chandra, J,) vide its order dated 24-7-1987 in D.B. Special Appeal No. 394 of 1980 held that the opinion of the learned single Judge about the meaning of Sub-section (2) of Section 4 including the Explanation there to is only obiter, since no occasion arose for deciding the same on the conclusion reached by the learned single Judge himself about the seriously disputed question of fact on which this argument of law was based. It was further observed as under:

In our opinion, decision of this question of law being unnecessary, since the question did not arise we should refrain from repeating the same error. Accordingly, we do not express any opinion on the correctness or otherwise of the opinion of the learned single Judge about the meaning of Sub-section (2) of Section 4 of the Act. We should leave this question to be decided in an appropriate case, wherein it properly arises for decision. It is clarified that the opinion of the learned single Judge about the construction of Sub-Section (2) of Section 4 including the proviso therein shall not, therefore, be treated as an authoritative pronouncement on the point.

In view of this Division Bench decision of this Court, the law laid down by a learned single Judge of this Court in Firm Multanmal Pukhraj v. Agricultural Produce Market Committee, ''A'' Class, Paota, Jodhpur S B. Civil Writ Petition No. 646 of 1980, decided on August 22, 1980, which has been relied on by Mr. R.K. Soni, the learned Public Prosecutor for the State does not offer any guidance.

Mr. R.K. Soni, the learned Public Prosecutor appearing for the State next placed reliance on a decision of this Court in Rikhabchand Jain v. State of Rajasthan and Anr. 1987 WLN (UC) 310, wherein the question about the constitutionality of the provisions of Sections 2(vii), (x), (xiii) and (xvii) and Sections 4, 5(1), 9 and 14 of the Act as also of Rule 64 of the Rules was raised and a learned single Judge of this Court (S.C. Agrawal, J.) held that these provisions are not violative of Articles 14 and 19 of the Constitution. In doing so the learned single Judge placed reliance on M.C.V.S. Arunachala Nadar etc. Vs. The State of Madras and Others, and quoted with approval the following passage from the judgment of their lordships:

The Act is conceived and enacted to regulate the buying and selling or agriculture produce by providing suitable and regulated market by eliminating middleman and bringing face to face the producer and the buyer so that they may meet on equal terms, thereby eradicating or at any rate reducing the scope for exploitation in dealings. The Act and the Rules framed thereunder are intended to provide a network of markets wherein facilities for correct weighment are ensured, storage accommodation is provided and equal powers of bargaining ensured, so that producers may bring their agricultural produce to the market and sell them at reasonable prices. The provisions regarding licensing of traders, brokers, weighman, measurers, surveyors, warehouseman all are intended to achieve the same object.

Mr. R.K. Soni, the learned Public Prosecutor has submitted that actually, it this object which prompted the legislature to enact the Act. This is the definite public purpose behind the Act viz., the establishment of regulated markets for purchase and sale of agricultural Produce to protect the agriculturists from being exploited by the middle-man and profiteers, to enable them to secure a fair return for their placed by establishment of regulated markets. In this respect, reliance was placed on Narayan Hari shanker v. State of their of Rajasthan 1977 RLW 485 . He also Placed reliance on a decision of their lordships of the Supreme Court in Kewal Krishan Puri and Others Vs. State of Punjab and Another, , wherein it was observed:

that after all the whole object of the Act is the supervision and control of the transactions of purchase by the traders from the agriculturists in order to prevent exploitation of the latter by the former. The supervision and control can be effective Only in specified localities and places and not thoughout the extensive market area.

In entirely agree with Mr. R.K. Soni, the learned Public Prosecutor for the State, so far as the object of the Act is concerned but this particular decision in Rikhabchand Jain,s case (supra) does not offer any guidelines as to whether the provisions of the Act apply to the retail Traders or not?

The crucial question to be decided by this Court in disposing of theses appeals is the interpretation of the explanation appended to Section 4(2) of the Act, which reads as under:

"Explanation; Nothing in Sub-section (2) shall apply to the purchase or sale of any agricultural produce if the producer of such produces is himself its seller and the purchaser is a person who purchases such produce for his own private use of if such produce is sold to such purchaser by way of a retail sale."

Section 4(2) of the Act is as follows:

(2) On and after the date on which any area is declared to be a market area under Sub-section (1). no place in the said area shall, subject to the provisions of Section 14 be used for the purchase or sale of any agricultural produce specified in the notification issued thereunder.

Section 3 of the Act relates to the notification that may be issued by the State Government disclosing its intention of exercising control over purchase and sale of agricultural produce in specified area. The State Government by notification in the Official Gazette may declare such an intention about a specified area and may invite objections or suggestions from the persons concerned. Section 4(1) of the Act provides that after the expiry of the period specified in the notification issued u/s 3 and after considering such objections and suggestions as may be received before such expiry and after holding such enquiry as may be necessary, the State Government may, by notification in the Official Gazette, declare the area specified in the notification u/s 3 or any portion there of to be a market area for the purposes of this Act in respect of all or any of the kinds of agricultural produce specified in the said notification. In pursuance of Section 4(1) of the Act, the State Government vide its Notification No. F 10(2) Agri/Gr. 2/75 dated 21-4-1977 declared the market area of Pali consisting of Panchayat Samiti, Pali and Rohit as also the Municipal area of Pali.

Mr. R.K. Soni, the learned Public Prosecutor appearing for the State has submitted that similar cases decided by the same Magistrate i.e. Munsif and Judicial Magistrate, Pali vide order dated 22-9-1978 came up for consideration before a learned single Judge of this Court in State v. Mool Chand S.B. Criminal Appeal No. 486/1978 and four other similar appeals, decided on May 20, 1983). wherein it was held that a combined review of Section 4 and Section 14 would show that once a notification is issued u/s 4 and an area is declared as a market area, any agricultural produce bought and sold without licence u/s 14 of the Act will be violative of Section 4(2) of the Act. The explanation to Section 4(2) only exempts the producer of an agriculture produce and none else. The learned Judge further held that in order to avail of such an exemption, the following requirements are mandatory:

[i] that the person claiming exemption must be producer;

[ii] that the producer himself must be the Seller;

[iii] that the purchaser should be the person who should purchase it for his own private use or he must purchase it by way of retail sale.

In that case, the learned Judge further observed that in the instant case, the accused is neither a producer himself nor he claims that he is seller of such a produce as a producer. The first pre-requisite condition being missing, the explanation cannot apply. It was held that even otherwise, it is not the case of the petitioner-accused that he has purchased Kapasia for his own private use. Contrary to it in his statement, he has stated that he has purchased it in wholesale market and therefore, it is surprising how the Magistrate gave benefit to the accused by mis-interpreting this explanation. Neither the accused claimed to be producer of ''Kapasia'' nor he claims to have purchased it for his private use, nor he claims to purchased it by way of retail sale. In this view of the matter according to the the learned Judge, the acquittal of the accused is based onmis-interpretation of explanation to Sub-clause (2) of Section 4 of the Act of 1961.

There is no doubt that the judgment in State v. Mool Chand S.B. Criminal Appeal No. 485 of 1978 and four other similar appeals, decided on May 20, 1983 relates to the similar cases apparently the ratio of this decision must cover these appeals also. Mr. M.M. Singhvi, the learned Counsel appearing for the accused-respondents has, however, submitted that this decision is against the decision of their lordships of the Supreme Court in Kewal Krishan''s case (supra) and, therefore, it is not binding on this Court He has submitted that the acquittal recorded by the learned Munsif and Judicial Magistrate, Pali is correct in law and in fact and, therefore, it deserves to be maintained. He has submitted that the learned Judge in State''s case (supra) although referred to decision of their Lordships of the Supreme Court which was quoted by the learned Munsif and Judl. Magistrate in his impugned judgment i.e. Mohammadbhai Khudabux Chhipa and Another Vs. The State of Gujarat and Another, but without going through this decision critically and without properly construing the laid down by their lordships, the learned Judge observed that para 15 of the law above decision Mohd. Bhai Khuda Bux''s case) considers the question whether the Act is invalid and in that context, it was observed that the Act does not control retail trade. The learned Judge also observed that the observations were confined to particular provisions of the Act and Rules etc The learned Judge further observed:

In the present case, the petitioner himself has admitted that he purchases Kapasia in wholesale and then sells it in retail. In view of this it is not in dispute that the petitioner is a wholesale dealer so far as his purchase is concerned and Kapasia is brought by him in the market area by wholesale purchases.

Mr. M.M. Singhvi, the learned Counsel appearing for the accused-respondents has submitted that neither the learned Judge critically examined the provisions of the Act and the Rules nor he has properly interpreted the explanation appended to Section 4(2) of the Act. The admitted case of the appellants is that cotton is purchased in wholesale by the accused respondents in Gujarat which does not fall in the area of the market committee. When the transactions of purchase Kapasia have taken place in Gujarat, either in wholesale or retail, then it cannot be said that the said transactions took place in the area of the Market Committee. It has only been brought into the area of the Market Committee and bringing of an agricultural produce from outside the area of the Market Committee does not amount to a purchase in the area of the market committee. More over, the explanation appended to Section 4(2) of the Act exempt the retail-sale and not the. purchases made by a retail trader. It is an admitted case of the appellants that the cotton seed is purchased by the accused-respondents from Gujarat and then it is being sold by them in the market area of Pali as retail traders. The State cannot wriggle out of this admission made by them in their memo of appeal and therefore by no stretch of imagination, the accused-respondents can be considered to be wholesale dealer because they never purchased the cotton seed in the area of market committee Pali, in wholesale. They only sell it as retail traders in the area of the market committee. According to Mr. Singhvi, the provisions of the Bombay Agricultural Produce Market Act, 1939 are almost in pari matcria with the provisions of the Act. It appears that the Rajasthan Government has adopted the Bombay Act with slight variations here and there and the provisions of the Bombay Agricultural Produce Market Act came up for consideration before their lordships of the Supreme Court in Mohammad Hussain Gulam Mohammad and Another Vs. The State of Bombay and Another, and Mohd Beat Khuda Bux''s case (supra).

In the Bombay Act of 1939, Section 3 provides for the constitution of market areas and market committees by issuing a notification Section 4(1) of the said Act provides that the Commissioner after holding such inquiry as may be necessary and considering the objections and suggestions if any made after the notification u/s 3 shall declare a particular area as a market area for the purposes of the Act. The consequence of the establishment of the market area is given in Section 4(2) which lays down that after the market area is declared no place in the said area shall subject to the provisions of Section 5A be used for the purchase or sale of any agricultural produce specified in the notification. Thus Sections 4(1) and 4(2) of the Bombay Act are almost in pari materia with the provisions of the Rajasthan Act.

In the Bombay Act, even proviso to Section 4(2) of the Act provides that pending the establishment of a market in a market area, the Commissioner may grant a licence to any person to use any place in the said area for the purpose of purchase and sale of any such agricultural produce. The only difference is that in the Rajasthan Act, the notification and declaration of the market area is done by the State Government whereas this particular power, according to the Bombay Act vests in the Commissioner. In the Rajasthan Act, the proviso confers powers on the State Govt. to grant, pending the establishment of a market in such area subject to such terms and conditions, as may be specified by a general or special order published in the Official Gazette a licence to any person, to use any place in the said area for purchase or sale of any such agricultural produce, whereas the proviso to Section 4(2) of the Bombay Act confers these powers on the Commissioner. There is an explanation appended to Section 4(2) of the Rajasthan Act which is almost in pari materia with Section 4(2A) of the Bombay Act, which provides that the provisions of Section 4(2) of the Act do not apply to the purchase or sale of specified agricultural produce, if the producer of such produce is himself its seller and the purchaser is a person who purchases such produce for his own private use or if such agricultural produce is sold to such person by way of a retail sale. It will be most useful here to reproduce in extenso the explanation appended to Section 4(2) of the Act:

Explanatian-Nothing in Sub-section (2) shall apply to the purchase or sale of any agricutural produce if the producer of such produce is himself its seller and the purchaser is a person who purchases such produce for his own private use or if such produce is sold to such purchaser by way of retail sale.

Their Lordships of the Supreme Court in Mohd. Hussain''s case (supra) while interpreting the provisions of Section 4(2A) of the Bombay Act observed:

Thus, it is clear from this exception that the provisions of the Act do not apply to retail sale and are confined to what may be called wholesale trade in the crops regulated there under.

In Mohd. Hussin''s case (supra), the vires of Sections 4, 4A 5, 5A and 5AA of the Bombay Act were challenged. Their lordships upheld their constitutional validity and in doing so, an earlier decision of lordships of the Supreme Court in Arunachala Nadar''s case AIR 1959 SC 300 was referred to and followed and it was observed that provisions of Section 4(2A) of the Bombay Act make it clear that they do not apply to the retail-sellers. The explanation appended to Section 4(2) of the Rajasthan Act is in pari materia with Section 4(2A) of the Bombay Act.

Section 14 of the Rajasthan Act confers powers on the market Committee to issue licences where as in the Bombay Act, Section 5A confers those powers on the Market Committee. Section 14 of the Rajasthan Act reads as under:

Section 14. Power of market committee to issue licences:- Where a market is established under clause (b) of Sub-section (2) of Section 9 the market committee may issue and renew licences, in accordance with the rules and bye-laws, to traders, brokers, weighmen, measurers surveyors, warehouse men and other persons to operate in the market area on payment of the prescribed fees.

Provided that no such licence shall be necessary in the case of a person to whom a licence has been granted under Sub-section (2) of Section 4.

Section 5A of the Bombay Act is as follows:

"Where a market has been established, the market committee is given the power to issue licences in accordance with the Rules to traders commission agents, brokers, weighmen, measures, surveyors, warehousemen and other persons to operate in the market provided that no such licence shall be necessary in the case of a person to whom a licence has been granted under the proviso to Section 4(2)."

Thus, it is clear that Section 5A of the Bombay Act is also in pari materia with the provisions of Section 14 of the Rajasthan Act and, therefore the interpretation made by their lordships of the S.C. as regards the language of Section 4(2A) of the Bombay Act applies with full force to the explanation to Section 4(2) of the Rajasthan Act, cannot be overlooked. These observations were later reiterated by their Lordships of the Supreme Court in a later decision in Mohd Khuda Bux''s case (supra), which has been referred to by the learned single Judge and the learned trial court in their judgments In Mohd Hassain''s case, their lordships of the Supreme Court although upheld the constitutional validity of the provisions of Sections 4, 4A 5 5A and 5AA of the Bombay Act but Rules 66 and 67 of the Bombay Agricultural Produce Markets Rules were held to be ultra vires because they did not conform to the provisions of Section 5A of the Act. Later some amendments were made in the Act and the Rules and again the constitutional validity of the provisions of the Act and Rules was challenged and their lordships of the Supreme Court in Mohammadbhai Khudabux Chhipa and Another Vs. The State of Gujarat and Another, upheld the constitutional validity of the provisions of the Act and the Rules. According to the Rules, two classes of the traders were provided i.e. A Class Traders Lb Class Traders and separate fees were provided for both of them.

An argument was advanced that the Market Committee is attempting to control retail dealers and requires them also to take out licences and this, it is not authorised to do as this Court has already held in the earlier judgments that retail trade is not within the ambit of the Act The question that was posed by their lordships of the Supreme Court for decision in that case was as follows

Is the market committee acting beyond its power under the Act in requiring retail dealers to take out licences and is Rule 64 bad on account of the manner in which it is being enforced by the marker committee?

While answering this question, their Lordships of the Supreme Court in paras 13 and 14 of their judgment observed that it has already been hald in the earlier judgment that retail trade is not controlled under the Act and, therefore, the fact that the bye-law has added the words "to sell in retail to consumers anywhere in the market area" in the case of B Class Traders is no consequence, for, B Class traders, as they are retailers would be entitled in any case, without being controlled under the Act, to sell to consumers anys where the like. Their lordships further observed that the licences that are to be taken by B Class Traders are not meant to control their business activity in so far as it relates to carry on retail sale by them anywhere in the market area It was held:

As we have said these words are a mere surplusage and the real purpose of the licence granted to B Class traders is to permit them to buy in the market yard and thus control their activity in connection with wholesale trade.

Under the bye-laws, A class traders are those who can both buy and sell agricultural produce in the market yard while B Class Traders can only buy in the market yard but cannot sell there. It appears that in order to avoid the monopoly of A Class Traders, who are a few in number, with the result that prices might be depressed by such traders, B Class Traders are permitted only to buy in the market yard on payment of a small licence fee in order that the producer who brings his produce in the market yard may have a fair price. We see, no reason, therefore, to hold that there is any discrimination in creating the two classes of traders for there is a fair basis of classification of traders into A Class and B Class." Therefore, their lordships felt that the licences that have been provided for B Class traders are not meant to control sale. Retail traders, who are permitted to purchase in wholesale in the market yard were asked to take licences and that was held as proper but it has been categorically reiterated by their lordships of the Supreme Court in para 14 of the judgment that it has already been held in the earlier judgment that retail trade is not controlled under the Act.

In that case, an argument was raised that provisions of the Act also affect transactions between traders and traders and. also affect produce not grown within the market area if it is sold in the market area. While dealing with this-argument, their lordships observed:

That is undoubtedly so. But if control has to be effective in the interest of the agricultural producer such incidental control of produce grown outside the market area and brought into the market yard for sale is necessary as otherwise the provisions of the Act would be evaded by alleging that the particular produce sold in the market yard was not grown in the market area. For the same reasons, transactions between traders and traders have to be controlled if the control in the interest of agricultural producers and the general public has to be effective. We are, therefore, of the opinion that the Act and the Rules and the bye-laws thereunder cannot be struck down on this ground.

The upshot of the above discussions is that any transaction between traders and traders of an agricultural produce not grown within the market area if it is sold in the market area can be controlled by the market committee but this is subject to the condition that this does not control or affect retail-seale.

The market again came up for consideration before their lordships of the Supreme Court in Jan Mohammad Noor Mohammad Begban Vs. State of Gujarat and Another, wherein the vires of Sections 5 and 6 of the Gujarat Agricultural Produce Market Act was under challenge. In that case, the following two contentions were raised:

[1] that the retail sales which were not regulated by the provisions of the earlier Act were sought to be regulated by the Gujarat Act 20 of 1964; and

[2] that the retail trade was competely prohibited by the Act and the prohibition amounted to an unreasonable restriction upon the fundamental rights of the petitioner;

and in this respect, reference was made to Section 6(3) of the Gujarat Agricultural Produce Market Act, which provides that nothing in Sub-section (2) shall apply to the purchase or sale of any such agricultural produce if its producer is himself the seller and the purchaser purchases it for his own private consumption. In the Gujarat Act, the words, "if such agricultural produce is sold to such person by way of retail sale" were omitted. Their lordships observed that in the Bombay Act there was an express provision which excluded from the operation of Sub-section (2) of Section 4 sale of agricultural produce by way of retail sale but under the Act, no such exclusion is expressly prescribed But apart from the generality of the provisions made in the Gujarat Act and the omission of retail sales from the scheme of exclusion, the Act and the Rules clearly indicate that retail sales are not sought to be regulated by the provisions of the Act. Their lordships in this respect observed:

It may be noticed that the State of Gujarat has not framed any new Rules: the Rules framed under the Bombay Act 22 of 1939 remain in operation by virtue of Section 64 and the Rules framed under the Bombay Act 22 of 1939 have been framed on the footing that no retail sale is to be regulated thereby.

...The provisions with regard to information and report to the market committee about the resale of the agricultural produce and the prohibition of sales otherwise than by open auction or by open agreement clearly indicate that Rule 60 deals with retail sales. The learned Solicitor General appearing on behalf of the State of Gujarat has conceded and we think that the concession is rightly made, that the Act read together with the Rules does not purport to place any restriction upon retail transaction in agricultural produce. Therefore, no licence is required under the Act for carrying on retail trade in agricultural produce in the market area and there is no prohibition against the carrying on of retail sale in agricultural produce in the market area.

Rule 64 of the Rajasthan Rules reads as under:

Rule 64. Sale of Agricultural produce--[1] All the notified agricultural brought in the market or produced or processed in the market proper except such quantity for consumption as may be prescribed in theeye laws, shall pass through the principal market yard or sub-market yard or yards and shall not be sold at any other place within the market proper.

Explanation--For the purpose of this Rule, processed agricultural produce shall include all the notified agricultural produce processed in the market but not a manufactured produce.

[2] Such details of all notified agricultural produce resold in the market area shall also be reported to the market committee in accordance with the provisions of the bye-laws.

[3] The price of agricultural produce brought into the market for sale shall be settled by open acution and not by Secret signs and no deductions shall be made from the agreed price of the consignment except for authorised trade allowance:

Provided that the Director, if he deems fit, may permit the system of sale by open Agreement at the market yard. Provided further that the open auction system will not apply to the resale of the notified agricultural produce which had already been brought in the market yard.

[4] Any person who contravenes the provisions of Sub-Rule (2) or (3) shall on conviction be punishable under Sub-section (3) of Section 36 with a fine which may extend to Rs. 200/-

A bare look at Rule 64, Rajasthan Rules will show that it is in pari materia with Rule 60 of the Bombay Rules and, therefore the observations of their Lordships of the Supreme Court that as per the provisions of the retail sale of an agricultural produce in the market area is out of the preview of the supervision of the Market Committee, in my humble view cannot be disputed. It appears that the learned Single Judge in State v. Mool Chand S.B. Criminal Appeal No. 485 of 1978, decided on May 20, 1983 did not deal in detail about the dictum laid down by their lordships of the Supreme Court in Mohd. Bhai Khuda Bux''s case (supra) and more over the other authorities of their Lordships of the Supreme Court were not brought to the notice of the learned Judge in Mool Chand''s case (supra). It has been the consistent view of their Lordships of the Supreme Court that the clause ''if such agricultural produce is sold to such person by way of retail sale'' is an independent clause and it clearly means that this provision does not apply to the retail sale made by a retail trader in the market area and, therefore, no licence is to be taken for effecting retail sale of an agricultural produce in the market area. The words used clearly apply to the persons to whom the agricultural produce is sold in retail sale. The learned single Judge of the Court in Mool Chand''s case (supra) observed that the purchaser should be the person who should purchase it for his own private use or he must purchase it by way of retail sale. Actually, the purchaser should be a person who purchases such produce for his own private use or such produce is sold to him by way of retail-sale, because the purchaser who purchases such agricultural produce in retail sale is not required to obtain any licence. It is only the person, who sells agricultural produce in retail sale can be required to obtain a licence, who according to their lordships of the Supreme Court he is exempted from obtaining a licence for carrying on retail trade. With great deference to the learned Judge who has decided State v. Mool Chand case (supra), I am of the view that their Lordships of the Supreme Court have interpreted this law differently. Of course, they have interpreted Section 4(2A) of the Bombay Act and Section 6(3) of the Gujarat Act but Section 4(2A) of the Bombay Act is in pari-materia with explanation to Section 4(2) of the Rajasthan Act and an explanation has been interpreted as a sort of an exception to the general Rule and when that exception has been created by the framers of the law, that cannot be over looked. The learned Author S.L. Gupta in his treatise Rajasthan Local Laws, Second Edition Revised, Volume I at page 273 observed that Explanation: Generally it is by way of an exception to what is stated in the main Section that an explanation or proviso is added to Section. Sometimes, an explanation stresses upon a particular thing which ordinarily would not appear clearly from the provision in the main Section. State of Bihar v. Mohd. Ismail [AIR 1966 Part-I (FB)].

These appeals are against the acquittal of the accused-respondents. It is a settled law that even if there are two views possible about a particular provision then also the judgment of acquittal should not be disturbed.

For the reasons stated here in above, I find no force in these appeals and they are dismissed. The accused-respondents are on bail. They need not surrender to their bail-bonds.