N.C. Dwivedi, J.
1. This is a complainant's appeal by grant of special leave challenging the order of acquittal dated 21-9-1.967 under Section 17 read with Section 29 of the Madhya Pradesh Agricultural Markets Act, 1960, (hereinafter referred to as the 'Act') recorded toy the Additional District Magistrate (Judicial).
2. It is not disputed that a Mandi area has been established at Lashkar as per notification No. 145/XIII Indore, dated 9th June 1953 by the Commerce & Food Department for notified agricultural produce including Mirchi. Dhani'a and Haldi. It is also not disputed that the respondent Mohanlal is a wholesale dealer in Dal Bazar. Inder Ganj, Lashkar. carrying on business under the the name and style 'Mohanlal Shree-chand.' It is also not disputed that the respondent sells Kirana goods, Mirchi. Dhania and Haldi. The respondent admittedly did not obtain licence from the Mandi Committee Lashkar. The Mandi Committee Lashkar through its Accountant instituted a complaint against the respondent for contravention of Section 17 of the Act for dealing in Mirchi, Dhania and Haldi without obtaining a licence from the Committee.
3. The respondent admitted that he was carrying on trade in Mirchi, Dhania and Haldi in Dal Bazar. Interganj, Lashkar and also admitted that he had not obtained any licence from the Mandi Committee. His contention was that since he was purchasing the above produce from outside Madhya Pradesh, he was not bound to obtain a licence.
4. After scrutiny of the evidence. the Additional District Magistrate (Judicial). Gwalior. acquitted the respondent on the following three grounds-
(1) That no notice was served on the respondent;
(ii) that the respondent purchased agricultural produce from the area outside Madhya Pradesh for sale at Lashkar.
(iii) The copy of the resolution Ex. P. 3 generally authorising the Accountant to lodge complaints in the competent court for contravention of the provisions of the M. P. Agricultural Produce Markets Act, 1960, by-laws and rules framed thereunder was bad in law and hence the prosecution suffered for want of proper sanction.
5. We have heard Shri Swami-saran. Advocate for the appellant and Shri J. P. Sharma for the respondent. We are of the view that the appeal, for the reasons hereinafter stated, deserves to be accepted,
6. It is not disputed that there is a market area and market yard together with a Market Mandi in Gwalior. It is also not in dispute that the respondent is a wholesale dealer. According to the notification No. 145/XIII Indore. dated 9-6-1953, issued by the Commerce & Food Department, the State Government under Section 31 of the Madhya Bharat Krishi Upaj Mandi Act, Samvat 2000 notified the area of Lashkar Mandi and also notified the agricultural produce which included Mirchi, Dhania and Haldi. It is thus established that in Lashkar - Gwalior, a Mandi with defined area exists with notified agricultural produce. The Madhya Pradesh Agricultural Produce Markets Act, 1960. extended to the whole of Madhya Pradesh with effect from J 5-10-1960. This Act was to provide for the establishment of the markets with a view to secure better regulation of buying and selling of agricultural produce in Madhya Pradesh. Under Section 3 of the said Act. the State Government upon a representation made by the local authorities or by the growers of any agricultural produce within the area for which the market is proposed to be established or otherwise, by notification declare its intention to establish a market for regulating the purchase and sale of such agricultural produce and in such area as may be specified in the notification. Thus under Section 3 of the Act. a notification to establish market was for regulating purchase and sale of the agricultural produce.
7. Rule 63 of the M. P. Agricultural Produce Markets Rules, 1962. provided that all notified agricultural produce brought into market proper for sale shall pass through the principal market yard or sub-market yards and shall not, subject to the provisions of Sub-rule (2), be sold at any other place outside such yards. Sub-rule (2) of Rule 63 provided that such notified agricultural produce as may be purchased by the licensed traders from outside the market area in the course of commercial transactions may be sold anywhere in the market proper in accordance with the provisions of the bye-laws. Under Rule G9, any person desiring to practice his calling as a commission agent or trader within the market area in respect of any notified agricultural produce shall obtain a licence in this behalf from the market committee. Under Sub-rule (2) of Rule 69, there shall be two main categories of traders, viz.. wholesale traders and retail traders. It is further clear from Rule 71 that any person desiring to practice his calling as a broker, weighman, hamal. surveyor or warehouseman within the market area in respect of any notified agricultural produce shall obtain a licence in this behalf from the market committee. Rules 69 and 71 show that any person; whether wholesale trader or a retail trader or a broker or weighman etc., desirous of practising his calling within the market area in respect of any notified agricultural produce has to obtain a licence in this behalf from the market Committee. The respondent is admittedly a wholesale trader, and, therefore, if he desired to practise his calling as a 'trader' within the market area in respect of any notified agricultural produce, he had to obtain a licence from the market Committee.
8. The provisions of the Act covered both buying and selling of agricultural produce and the market was to be established for regulating the purchase and sale of notified agricultural produce, Section 3 (5) of the Act, provided that notwithstanding anything contained in any enactment for the time being in force, no local authority or other person shall within the market area or within such distance therefrom as may be notified in the Gazette set up, establish, continue or use or allow to foe set-up, established, continued or used, any place for the purchase or sale of any notified agricultural produce except under a licence granted by the prescribed authority in such manner and upon such conditions including payment of fee as may be prescribed. It is apparent that a licence is required both for purchase or sale. The respondent claimed exemption from obtaining licence on the ground that he had purchased the produce from outside Madhya Pradesh, There is no provision for a wholesale purchaser of agricultural produce from outside the State be exempted from taking a licence. Section 17 of the Act provided that subject to Rules made under Section 38. a Market' Committee may provide by bye-laws for licensing of commission agents, traders, brokers, weighman etc, practising their calling within the market area, in respect of a notified agricultural produce, on payment of a fee not exceeding such amount as may be prescribed. Sub-rule (2) imposed restriction on any person to operate in the market area without obtaining any licence. We are, therefore, of the view that the wholesale trader who purchases or sells any notified agricultural produce within his market area is required to obtain a licence from the Mandi Committee and since the respondent purchases or sells the notified agricultural produce including Mirchi, Dhania and Haldi, he was bound to obtain a licence and since he did not take any licence, he committed breach of Section 17 and became liable for prosecution under Section 29 of the Madhya Pradesh Agricultural Produce Markets Act. 1960.
9. The Additional District Magistrate (Judicial) held that no notice of the intended prosecution was served on the respondent. We find no provision in the Act or Rules or Bye-laws making the issue of notice a condition precedent for the institution of the complaint. The absence of service of notice, therefore, could not invalidate the institution of the complaint.
10. The Additional District Magistrate (Judicial) held that the authorisation to institute the complaint against the respondent granted by the Mandi Committee in favour of Laxman Kumar (P. W. 1) as per resolution No. 40 dated 21-1-1963 was bad in law. The Magistrate felt that the setting of criminal law in motion was an important work and the authority must apply its mind fully to the facts of the case and then decide each particular case on merits and demerits. He was, therefore, of the view that this type of general resolution passed in the year 1963 does not confer any right on the complainant to file the complaint.
11. Section 32 (3) of the M.P. Agricultural Produce Markets Act. 1960, read as under:
No court shall take cognizance of any offence punishable under this Act or any rule or any bye-law made thereunder other than an offence punishable under Section 30. except on the complaint of the Director or of the market Committee or of any person duly authorised in writing by the committee.
The above sub-rule only required that the court could take cognizance of the offence punishable under this Act or any Rule or any Bye-law made thereunder if the complaint was filed by the Director or by any person duly authorised in writing by the Committee. The resolution No. 40 dated 21-1-1963 authorised Shri Laxman Kumar Vijayvargiya (P. W. 1) to institute complaint for the offences arising out of the Act or Rules or Bye-law made thereunder. Sub-rule (3) does not state that the authority concerned should give sanction for the prosecution. The requirement was that a person duly authorised in writing by the Committee was competent to institute a complaint and in this case, we find that Shri Laxman Kumar (P. W. 1) was duly authorised in writing by the Committee.
12. We may refer to Section 20(1) of the Prevention of Food Adulteration Act, 1954. which reads as under:
(i) No prosecution for an offence under this Act shall be instituted except by or with the written consent of. (the Central Government or the State Government or a local authority or a person authorised, in this behalf, by general or special order, by the Central Government or the State Government or a local authority):Provided that a prosecution for an offence under this Act may be instituted by a purchaser referred to in Section 12. if he produces in a court a copy of the report of the public analyst along with the complaint.
In dealing with Section 20 of the Prevention of Food Adulteration Act, 1954, the Supreme Court in Criminal Appeal No. 122 of 1967 : reported in 1970 Cri LJ 492 SC (Dhiansingh v. Municipal Board, Saharanpur) observed as under:
Mr. Garg, learned Counsel for the accused, urged that a permission under Section 20 of the Prevention of Food Adulteration Act, 1954. to file a complaint under the provisions of that Act. was necessary. The fulfilment of that condition must be satisfactorily proved by the complainant before a Court can entertain the complaint. Without such a proof, the court, will have no jurisdiction to try the case. In support of that contention of his he sought to take assistance from the decision of the Judicial Committee in Gokulchand Dwarkadas v. The King (1948) 49 Cri LJ 261 (PC) and Madan Mohansing v. State of U. P. 1954 Cri LJ 1656 (SC). Both those decisions deal with the question of the validity of sanctions given for the institution of certain criminal pro-ceedings. The provisions under which sanction was sought in those cases required the sanctioning authority to apply its mind and find out whether there was any justification for instituting the prosecutions. The Judicial Committee as well as this Court had laid down that in such cases, the court must be satisfied either from the order of sanction or from the other evidence that all the relevant facts had been placed before the sanctioning authority and that authority had granted the sanction after applying its mind to those facts. The ratio of those decisions has no bearing on the facts of this case. Under Section 20 of the Prevention of Food Adulteration Act. 1954. no question of applying one's mind to the facts of the case before the institution of the complaint arises as the authority to toe conferred under that provision can be conferred long before a particular offence has taken place. It is a conferment of an authority to institute a particular case or even a class of cases. That section merely prescribes that persons or authorities designated in that section are alone competent to file complaints under the statute in question.
13. In Public Prosecutor v. Thatha Rao : AIR1968AP17 . while dealing with Section 20(1) of the Prevention of Food Adulteration. Act, the High Court of Andhra Pradesh interpreted the expression 'authorised in this behalf' and held that the expression cannot be given a restricted meaning, viz. authorization must be with respect to specific complaint. In order to relieve Municipal Council of the necessity of passing resolution every time offence under the Act is brought to its notice, it has been authorised to delegate the powers to institute prosecutions to a person and a general authorisation by it therefor is sufficient. The same view has been taken in Subbayyan Muthukomaran v. State of Kerala AIR 1968 Ker 330 : 1968 Cri LJ 1554.
14. In Jagannath v. Municipal Corporation Gwalior 1962 Jab LJ (SN) 350. this Court while dealing with Section 20 of the Prevention of Food Adulteration Act observed as follows:
It was contended on behalf of the applicant that the consent required under Section 20 of Prevention of Food Adulteration Act must be a consent given after due application to the facts of the case. In the first place the words 'consent in writing' as used in Section 20 of the Act cannot be treated as synonymous with a 'sanction' in respect of which it has been held in several cases that it should be given only after due application of the mind of the sanctioning authority to the facts of the case. A consent is necessary only in order to avoid prosecution on insubstantial grounds.
15. In view of the above, the requirement of Section 32 (3) of the M. P Agricultural Produce Markets Act, 1960 is that any person duly authorised in writing by the Committee could institute r complaint and there is a resolution in writing authorising Shri Laxman Kumar (PW-1) to institute complaints. Such a general authorisation, in our opinion is substantial and valid compliance with provisions of Section 32 (3) of the Act. Such authorisation could not be treated on par with the provisions under which sanction is sought which requires the sanctioning authority to apply its mind and find out whether there was justification for instituting the prosecution. In this case as also in the case of the Prevention of Food Adulteration Act. no question of applying one's mind to the facts of the case before institution of the complaint arises because what is required was a conferment of authority to institute a particular case or even a class of cases. We are, therefore, of the view that the Additional District Magistrate was definitely in the wrong in judging the authorisation in favour of Laxman Kumar (PW 1) in the context of sanction to prosecute. Disagreeing with the Additional District Magistrate (Judicial) we hold that the authorisation in Ex. P. 3 duly empowered Shri Laxman Kumar Vijayvargiya to institute the complaint and the prosecution is valid and competent.
16. For the reasons given above, we are of the view that the additional District Magistrate (Judicial) committed an error in interpreting the provisions of the Act, Rules or bye-laws made thereunder and thus recorded acquittal of the respondent on erroneous view of law. The acquittal of the respondent was thus unjustified and the respondent was liable for conviction for contravention of Section 17 read with Section 29 of the M. P. Agricultural Produce Markets Act, 1960. He traded without obtaining any licence and. therefore, deserves substantial punishment.
17. In regard to sentence, on the facts and circumstances of the case, we think that a fine of Rs. 200/- or in default to undergo three months rigorous imprisonment shall be proper punishment to the respondent,
17A. In view of the above, we allow the appeal of the Krishi Upaj Mandi Samiti set aside the order of acquittal and convict the respondent Mohanlal under Section 17 read with Section 29 of the M. P. Agricultural Produce Markets Act, 1960, we sentence him to pay a fine of Rs, 200/- or in default to undergo three months rigorous imprisonment.