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Dhari Agricultural Produce Market Committee, Dhari and anr. Vs. Chavda Rajaballi Valiblial and anr. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtGujarat High Court
Decided On
Case NumberCriminal Appeal No. 83 of 1981
Judge
Reported inAIR1990Guj149; 1990CriLJ1758; (1990)1GLR529
ActsGujarat Agricultural Produce Markets Act, 1964 - Sections 2 and 8; Gujarat Agricultural Produce Markets Rules, 1965 - Rule 56; Essential Commodities Act, 1955 - Sections 3; Fair Price Shop Scheme and Markets Act
AppellantDhari Agricultural Produce Market Committee, Dhari and anr.
RespondentChavda Rajaballi Valiblial and anr.
Appellant Advocate S.K. Zaveri, Adv.; R.R. Tripathi, Addl. Public Prosecutor
Respondent Advocate S.J. Joshi, Adv.
Cases ReferredM. C. V. S. Arunachala Nadar v. State of Madras
Excerpt:
commercial - licence - sections 2 and 8 of gujarat agricultural produce markets act, 1964, rule 56 of gujarat agricultural produce market rules, 1965, section 3 of essential commodities act, 1955 and fair price shop scheme and markets act - whether it is compulsory for dealer in fair price shop having his shop situated in market area to obtain licence under act of 1963 - dealer in fair price shop not 'trader' like any other trader while purchasing agricultural produce - dealer in fair price shop merely serving as distributing channel or supply line between government and weaker section of society - not obligatory for dealer to obtain licence under marketing act even though shop is situated within market area. - - whether, when any person (i) who is strictly and exclusively a dealer.....(1) is it compulsory for a dealer in the fair price shop having his shop situated in the market area to obtain a licence under the gujarat agricultural produce markets act, 1963 (for short hereafter referred to as the market act)? thus, an impertinent question that arises for consideration in this appeal is regarding the interpretation of section 8 and words (i) 'general commission agent', and (10 'trader' as defined in sections 2(vii) and 2(xxiii) respectively of the said markets act. (2) the material facts constituting the context and the background out of which the above question emerges are briefly stated as under: 'whether, when any person (i) who is strictly and exclusively a dealer in the fair price shop, and (ii) is so authorised by the government intending to distribute the.....
Judgment:

(1) Is it compulsory for a dealer in the fair price shop having his shop situated in the market area to obtain a licence under the Gujarat Agricultural Produce Markets Act, 1963 (for short hereafter referred to as the Market Act)?

Thus, an impertinent question that arises for consideration in this appeal is regarding the interpretation of Section 8 and words (i) 'general commission agent', and (10 'trader' as defined in Sections 2(vii) and 2(xxiii) respectively of the said Markets Act.

(2) The material facts constituting the context and the background out of which the above question emerges are briefly stated as under:

'Whether, when any person (i) who is strictly and exclusively a dealer in the fair price shop, and (ii) is so authorised by the Government intending to distribute the essential commodities like good-grains, sugar, rice, millet, etc. (for short, hereafter referred to as the agricultural produce) to the weaker sections of the society at a fair and reasonable price, and (iii) is accordingly supplied with the same, and (iv) when such fair price shop dealer in his turn distributes the same to specifically allotted and so named card holders, residents of so named specific areas only, (v)at stipulated, fixed and reasonable price, and (vi) further when the relationship between the Government on the one hand and the dealer of the fair price shop on the other hand is purely of a contractual nature being subject to the overall control and supervision under the terms and conditions of the Rules and Regulations under the statute, and (vii) further when such fair price shop dealer has nothing to do with any other deal or transaction which directly or otherwise adversely affects the interest of the poor, illiterate and ignorant agriculturist for whose ultimate benefit and protection the said

Market Act has been specially enacted, and (viii) when the said dealer in the fair price shop is merely a conduit-pipe serving as a passage of essential supplies between Government and the recipient weaker sections of the society - can he under such circumstances be said to be a 'person operating in the 'market-area' within the scope and meaning of Section 8 of the said Market Act? and further therefore can he be under the statutory obligation to obtain the licence from the market committee? Merely and incidentally because (a) his shop is situated within 'market area' and (b) he deals with the food-grains which is also an 'agricultural produce' within the definition meaning of Sections 2(xii) and 2(ii) respectively of the said Market Act?

(3) In order to appreciate and understand the parameters of this question and to have correct legal answer to it, it is necessary, first of all to understand brief facts of the case, the evidence brought on the record and then aims and objects underlying the scheme of the fair price shop and the said Marketing Act.

(4) Briefly, according to the prosecution, one PW 1 Dhirajlal Revashankar, Ex. 6, who was working as an Inspector in Dhari Agricultural Produce Market Committee, filed a complaint Ex. I against the accused viz. Chavda Rajabhai Valibhai, a fair price shop dealer at Dhari, before the learned J.M.F.C. Dhari, for the alleged offence punishable under Section 36(1) of the said Market Act, alleging therein that since the Act in question was made applicable to the entire area of Dhari, it was incumbent upon every such persons dealing in business of purchase and sale of agricultural produce to obtain a licence from Dhari Agricultural Produce Market Committee. Accordingly, it was further alleged that the accused who was also having a fair price shop at Dhari (as being approved and authorised by the Government) was a 'trader' of the agricultural produce like wheat, rice, millet, etc. as well as other agricultural produces. Since during the period from 1-7-1979 till 30-9-1980, the accused had carried on his aforesaid activity of distributing wheat, rice and millet, it was not only compulsory for him to obtain the licence but was also required to maintain certain registers as per the rules and regulations under the said Marketing Act. Thus, the accused having not obtained the required licence, had committed a breach of Section 8 of the said Market Act and therefore consequently was liable to be punished under Section 36(1) of the said Marketing Act.

(5) On receipt of the above complaint, the trial court directed the same to be registered as a Criminal Case No. 196/80 and further ordered issuance of summons against the accused for the alleged offence under Section 8 read with Section 36(1) of the said Marketing Act.

(6) At the trial, accused not only not pleaded guilty, and claimed to be tried, but he raised a specific defence to the effect that he was merely an exclusive dealer in fair price shop and was distributing essential commodities like wheat, rice, millet, sugar, etc. at fair and reasonable price as supplied to him by Mamlatdar and that he was neither purchasing nor selling any other agricultural produces from any other persons and accordingly it was not obligatory for a person like him to have a licence under the said Act.

(7) The prosecution in order to bring home the charge against the accused, have mainly relied upon two witnesses, viz. (i) PW 1, Dhirajlal Revashanker Joshi, Ex. 6, Inspector in Dhari Agricultural Produce Market Committee, and (ii) PW 2, Rameshchandra Bhanushanker Bhatt, Ex. 11, Deputy Mamlatdar, Civil Supply Department, Dhari.

(8) The trial court after duly appreciating the evidence and considering the rival contentions of the parties, by judgment and order dated 30th August, 1980, was pleased to acquit the accused and hence, aggrieved by the same, the original complainant has filed this acquittal appeal.

(9) Mr. S. K. Zaveri, the learned counsel appearing for the appellant-complainant has made the following submissions:

That the impugned judgment and order of acquittal is patently illegal in as much as the trial court has not correctly interpreted Section 8 and other relevant provisions of the said Market Act vis-a-vis facts of this case.

Developing this Point further, Mr. Zaveri submitted that since the accused as a dealer of the fair price shop, has purchased the agricultural produce viz. wheat, millet, rice, etc. from the Mamlatdar Office and thereafter he sold the same to the customers by charging the price from them and was gaining the profit, he was a person operating within the market area and therefore it was compulsory for him to have a licence for the same. According to Mr. Zaveri, thus, the trial court committed a serious error in treating the entire transaction of the purchase of the agricultural produce from the Mamlatdar Office and selling it to the customers, as merely a distribution work. According to Mr. Zaveri, the accused who was a dealer in the fair price shop was in fact 'trader' and was carrying on his activities of purchase and sale within the market area which squarely fall within the scope and ambit of the said Market Act. It was further submitted by Mr. Zaveri that the fair price shop was run by accused as a 'trader' on his own sole responsibility and the Government had no concern except to supervise and regularise the sale price of the agricultural produces or any other item purchased by the said dealer and sold by him to the card holders. Mr Zaveri finally submitted that the accused fair price shop dealer must be held to be operating in the market area dealing with the agricultural produce regulated under the said Market Act and therefore was liable to be punished under Section 36(1) for the breach of Section 8 of the said Market Act.

(10) As against the above submissions of Mr. Zaveri, Mr. S. J. Joshi,4earned advocate for the accused has supported the judgment and order of acquittal and has adopted the very reasoning of the trial court by way of his arguments in this appeal.

(11) Mr. R. R. Tripathi, the learned Addl. 1P. P. appearing for the State has submitted that the view taken by the trial court appears to be just, legal and proper and there is no reason for this court to interfere with the same.

(12) Now in our quest for the just interpretation of the relevant provisions of the said Marketing Act, let us first of all advert to the evidence brought on the record by the prosecution.

(A) To start with the first witness examined in this case is PW I Dhirajlal Revashanker ' Ex. 6, who is a complainant. According to this witness, the accused was a dealer in the fair price shop and was also selling other agricultural produce and has not obtained required licence for the period in between lst September, 1979 and 30th September, 1980, and as a result of this, he was constrained to file the complaint against him for an offence punishable under Section 36(1) of the said Act. The cross-examination of this witness makes an interesting reading. In substance, it has been admitted by this witness in his cross-examination that the accused was running a fair price shop since many years in Station Plot area in Dhari. He has also admitted that though in compound of the market area, auction of the agricultural produce does take place where merchants participate, however, the accused has never before purchased or sold any agricultural produce. He has also specifically admitted that the accused was selling these commodities only which was being supplied by the Mamlatdar to him. Surprisingly, this witness in his further cross-examination has made a convenient somersault to quote the same -'It is not true that the accused was not selling other commodities except those received from the Mamlatdar Office. He did not know from where other commodities come'. He also admitted that he did not know as to whom, the said commodities were sold. He also admitted,that at no point of time, he has made any efforts to make a panchnama about other commodities, at his fair price shop. According to him, he had merely orally conveyed to the President of the Committee that the accused was keeping in his shop other agricultural produces also. He has also admitted that the accused has to account for and re-deposit commodities supplied to him by the Mamlatdar. He further deposed that to quote - 'It is true that the accused is distributing those agricultural produce only which is received by him from the Mamlatdar and that he was not doing any other business'. He has also denied the suggestion of the learned advocate for the accused that the accused was shown a letter addressed to him by the Mamlatdar wherein it was suggested that it was not necessary to have a licence for him. It could be seen that the evidence of this witness ultimately favourable leans in favour of the accused.

(B) The next witness is PW 2 Rameshchandra Bhanushanker Bhatt, whose evidence in substance is that even the office of the Mamlatdar has to take a licence from Marketing Yard Committee and accordingly the fair price shop dealer also had to obtain the said licence. Like the first witness, the admissions elicited in cross-examination of this witness also throws a flood of light on the real facts and circumstances which is ultimately going to decide which way Section 8 of the said Act, deserves to be interpreted. This witness has admitted that the Mamlatdar Office is giving food-grains, sugar etc. at the controlled rates to the dealers of the fair price shop and the said dealers in turn has to distribute the said commodities at fixed price. He also admitted that the customers of the fair price shop are issued cards and every fair price shop dealer is allotted a specific area and specified and named card holders to whom agricultural produce supplied by the Mamlatdar is to be distributed. He- also admitted that a dealer in fair price shop can not sell agricultural produce to any other person except to the card holders of the specified area. He has also admitted that the office of the Mamlatdar also specifies the quantity of all the agricultural produce to be given to each card holding customer In any given month, if the supplied agricultural produce is found to be in excess as a result of the card holl3ars not purchasing the same, then such stock is to be accounted for etc. He also admitted that one Mr. Korant was serving as a clerk in the office the Mamlatdar.

He also admitted that a circular dated 14th April, 1978, issued by the Mamlatdar Office at Dhari and produced at Ex. 12, was also given to the accused. The said circular is produced at Ex. 12 and which in substance reads as under:

'That all the dealers of the fair price shop in Dhari are hereby informed that any of them who are dealing in other agricultural produce, it is necessary to obtain a licence under the provisions of the Gujarat Agricultural Produce Market Act, 1963. However, if the said fair price shop dealers are merely distributing Government food-grains, not selling any other agricultural produce, then for them it is not compulsory to pay every year licence fees. The fair price shop dealers only distributing Government food-grains, if they have paid any market fee, they are entitled to get it refunded on an application being made in this regard to the Collector'.

(C) The conjoint appreciation of the evidence of aforesaid two witnesses coupled with reading the purport of the circular dated 14th April, 1978 at Ex. 12, makes it abundantly clear that - (i) the accused is admittedly an exclusive fair price shop dealer, (ii) that he is receiving agricultural produce at the controlled rates from the Government, (iii) that he distributes the said agricultural produce to the named card holders of a specified area, (iv) at a fixed and reasonable price, (v) that there is no evidence on record that the accused was ever found in possession of agricultural produce other than the one supplied by the Government, (vi) that he had never participated in auction sale in market yard, (vii) that he was never found to have sold any other agricultural produce except one supplied by the Government, (viii) that the fair price shop dealer was a sort of a conduit-pipe channelising the supplies of the essential commodities and thereby implementing the Government's intention to distribute the agricultural produce to the specified and named card holders at a fair and reasonable price; and (ix) that he is controlled under certain statutory rules and regulations and terms and conditions thereunder as -per the ,agreement between the fair price shop dealer and the Government; (x) that there is not an iota of an evidence on record to show that the transaction regarding the 'supply' and the 'distribution' of the agricultural produce had any element which was working to the prejudice and contrary to the interest of the poor, illiterate cultivators, ignorant of market prices subjecting them to exploitation out of helpless situation; (xi) that two terms 'purchase' and 'sale' in the context of facts and circumstances of the case cannot be termed as 'purchase' and 'sale'. The whole transaction broadly speaking, is that of a 'supply' of aft agricultural produce by Government through the fair price shop dealer to be for 'distribution' to card holders, (xii) that the dealer in fair price shop is not a free-lance trader as the word 'trader' is commonly understood. Thus, how in view of such glaring facts and circumstances of the case, the accused can ever be said to 'operate' in the market area within the meaning of Section 8 of the said l Marketing Act so as to make obligatory upon him to obtain the licence under the said Marketing Act.

(13)Thus, having appreciated the evidence of the two witnesses, let us now concentrate on second important aspect of the case viz. what are the aims and objects underlying the scheme of the fair price shop. In this regard, Mr. Tripathi, learned Additional P. R has invited my attention to the underlying object of the scheme of the fair price shop. According to Mr. Tripathi, by this time, it is quite well known and therefore a judicial notice can be taken of the fact that the Government of Gujarat, in order to render succour to economically weaker sections of the society and persons residing in the remote Advise areas, has resolved and evolved an exhaustive and self-contained scheme of the fair price shop, under the public distribution management under which the essential commodities like wheat, rice, sugar, edible oil ' kerosene etc. are easily, regularly and at a reasonable price made available. Mr. Tripathi submits that this scheme of the fair price shop in substance and effect promotes and protects the interest of the needy consumers and as such society at large. Under this scheme, a person intending to be a dealer of the fair price shop has first to make an application in a prescribed form to the appropriate Government authorities furnishing the required particulars on oath declaration. After the said application is granted, the applicant is required to enter into a written agreement with the Government and thereafter a contract between the parties comes into existence and that thereafter the relationship between the Government and the said dealer of the fair price shop will be governed as per the said terms and conditions of the said contract. According to Mr. Tripathi, this is nothing but a shop set-up by the Government of Gujarat under its own scheme. There are number of terms and conditions and accordingly as per the contract, the dealer of the fair price shop over and above, though he is free to carry on other retail or wholesale business (over and above the distribution activity under the fair price shop), he cannot do so unless and until he obtains a prior permission and licences from the concerned appropriate authorities. Further, a person who is both (i) a dealer in the fair price shop; and. (ii) a wholesale or a retail 'trader' will have to maintain separate registers, accounts, godowns, etc. Not only that, but as a dealer in fair price shop, he is prohibited from trading the essential commodities supplied by the Government under the fair price scheme in an open market. Thus, the scheme of the fair price shop has a distinct and laudable object to serve economically weaker sections of the society. At the same time, the said Marketing Act, as will be seen in the course of the later part of this judgment, has also a definite object viz. to sub serve the interest of the poor, illiterate and ignorant agriculturists from be in& exploited by the powerful vested interest. As. a matter of fact, there is no conflict whatsoever between the aims and objects as clearly set out in the said Marketing Act and that of the fair price shop. Both interests can independently and separately as well as jointly serve the cause for the classes of the society for which the same have been designed. Neither the aims and objects of the said Marketing Act nor the scheme of the fair price shop appear to overlap or conflict in any manner with each other. It must be made clear that a person desiring to ride two horses viz. to be (i) a dealer in fair price shop, and (ii) a 'trader', then it will be incumbent upon him to obtain licence under Marketing Act as well.

(14) Having screened the object and spirit of the scheme of the fair price shop, let us now scan the third important aspect of the case viz. what are the aims and objects underlying the scheme of the said Market Act. The Gujarat Agricultural Produce Markets 1963 (Gujarat Act No. 20 of 1964) came in to force on 20th May, 1964. Its preamble at the very outset duly introduces the character and significance of the said Act with a declaration that 'This Act is to consolidate and mend the law relating to the regulation of (i) buying and selling of agricultural produce, and

(ii) the establishment of the markets of agricultural produce in the State of Gujarat'. This Act in fact replaces the prior Act viz. The Bombay Agricultural Produce Markets Act,1939. In order to find and finalise answer to the question raised in this appeal, it is worthwhile to have a look at the observations made by the Supreme Court in a case of M. C. V. S. Arunachala Nadar v. State of Madras, reported in : AIR1959SC300 . By this decision while considering the validity of the Madras Commercial Crops Market Act, 1939, their Lordships of the Supreme Court have' traced and examined the historical background of the Act and the necessity of the marketing legislation. In paragraphs 6 and 7 of their Lordships learned judgment, which is reproduced as under:

Para-6. There is a historical background for this Act. Marketing legislation is now a well settled feature of all commercial countries. The object of such legislation is to protect the producers of commercial crops from being exploited by the middlemen and profiteers and to enable them to secure a fair return for their produce., In Madras State, as in other parts of the country, various Commissions and Committees have been appointed to investigate the problem, to suggest ways and means of providing a fair deal to the growers of crops, particularly commercial crops, ant' find a market for selling their produce at proper rates. Several Committees, in their reports, considered this question and suggested that a satisfactory system of agricultural marketing should be introduced to achieve the object of helping the agriculturists to secure a proper return for the produce grown by them. The Royal Commission on Agriculture in India appointed in 1928 observed -

'That cultivator suffers from many handicaps: to begin with he is illiterate and in general ignorant of prevailing prices in the markets, especially in regard to commercial crops. The most hopeful solution of the cultivator's marketing difficulties seems to lie in the improvement of communications and the establishment of regulated markets and we recommend for the consideration of other provinces the establishment of regulated markets on the Berar system as modified by the Bombay legislation. The establishment of regulated markets must form an essential part of any ordered plan of agricultural development in this country. The Bombay Act is, however, definitely limited to cotton markets and the bulk of the transactions in Berar market is also in that crop. We consider that the system can conveniently be extended to other crops and with a view to avoiding difficulties, would suggest that regulated markets should only be established under Provincial legislation'.

The Royal Commission further pointed out in its report -

'The key note to the system of marketing agricultural produce in the State is the predominant part played by middlemen.

It is the cultivator's chronic shortage of money that has allowed the intermediary to achieve the prominent position he now occupies'.

The necessity for marketing legislation was stressed by other bodies also like the Indian Central Banking Enquiry Committee, the All India Rural Credit and Survey Committee, etc. Recently the Government of Madras appointed an expert Committee to review the Act. In its report the Committee graphically described the difficulties of the cultivators and their dependence upon the middlemen thus :

'The middleman plays a prominent part in sale transactions and his terms and methods vary according to the nature of the crop and the status of the cultivator. The rich ryot who is unencumbered by debt and who has comparatively large stocks to dispose of, brings his produce to the taluka or district centre and entrusts it to a commission agent for sale. If it is not sold on the day on which it is brought, it is stored in the commission agent's go down at the cultivators' expense and as the latter generally cannot afford to wait about until the sale is effected, he leaves his produce to be sold by the commission agent at the best possible price and it is doubtful whether eventually he receives the best price. The middle-class ryot invariably disposes of his produce through the same agency but, unlike the rich ryot he is not free to choose his commission agent, because he generally takes advances from a particular commission agent on the condition that he will hand over his produce to him for sale. Not only, therefore he places himself in a position where he cannot dictate and insist on the sale being effected for the highest price but he loses by being compelled to pay heavy interest on the advance taken from the commission agent. His relations with middlemen are more akin to those between a creditor and a debtor, than of a selling agent and producer. In almost all cases of the poor ryots, the major portion of their produce finds its way into the hands of the village money-lender and what ever remains is sold to petty traders who tour the villages and the price at which it changes hands is governed not so much by the market rules, but by the urgent needs of the ryot which are generally taken advantage of by the purchaser. The dominating position which the middleman occupies and his methods of sale and the terms of his dealings have long ago been realised'.

The aforesaid observations describe the pitiable dependence of the middle-class and poor ryots on the middlemen and petty trader ' with the result that the cultivators are not able to , find markets for their produce wherein they can expect reasonable price for them:

Para-7 The Act, therefore, was the result of a long exploratory investigation by experts in the field, conceived and enacted to regulate the buying and selling of commercial crops by providing suitable and regulated market by eliminating middlemen 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... ..

(15) Having examined the historical background of the Marketing Act, in reference to the question involved in this appeal, it is also necessary to consider and examine the relevant provisions of the Marketing Act, which are reproduced as under:

S. 2(i) 'agricultural produce' means all produce, whether processed or not, of agriculture, horticulture and animal husbandry, specified in the schedule.

S. 2(ii) 'broker' means an agent whose ordinary course of business is to negotiate and make contracts on payment of commission for purchase or sale of agricultural produce on behalf of his principal but does not include a servant of such principal whether engaged in negotiating or making such contracts.

S. 2(viii) 'general commission agent' means a trader who bona fide buys or sells or offers to buy or sell for an agreed commission, any agricultural produce on behalf of another person and does or offers to do anything necessary for completing and carrying out the transaction of such sale or purchase.

S. 2(ix) ' licence' means a licence granted under Section 6 or as the case may be a general or special licence granted under Section 27.

S. 2(x) 'Iicensee' means a person holding a general licence under this Act.

S, 2(xiii) 'market area' means any area declared or deemed to be declared to be a market area under this Act.

S. 2(xiv) 'market committee' means a market committee established or deemed to ~be established under this Act.

S. 2(xv) 'market proper' means any area declared or deemed to be declared to be a market proper under this Act.

S. 2(xxiii) 'trader' means any person, who ,: arried on the business of buying or selling of agricultural produce or of processing of agricultural produce for sale and includes a co-operative society, joint family or an association of persons, whether incorporated or not, which carries on such business.

S. 6. pertains to the declaration of market area.

(I)xxx xxx xxx (2) Notwithstanding anything contained in any law for the time being in force, from the date on which any area is declared to be a market area under sub-section (1) no place in the said area shall be used for the purpose of sale of any agricultural produce specified in the notification except in accordance with the provisions of the Act:

Provided that pending the establishment of a market in such area the Director may grant a licence to any person to use any place in the said area for the purchase or sale of any such agricultural produce and a licence so granted shall unless it is cancelled or otherwise ceases to be in force, continue in force until the establishment of a market in the said area and for such period thereafter as may be prescribed.

S. 8. No person shall operate in the market area or any part thereof except under and in accordance with the conditions of a licence granted under this Act.

S. 23 .A market committee shall exercise the powers and perform the functions 'and duties conferred or imposed on it by this Act and the rules'.

S. 26. It shall be the duty of every market committee to maintain and manage the market, to take all possible steps to prevent adulteration and to promote grading and standardisation of the agricultural produce as may be prescribed, to provide such facilities in the market as the Director may from time to time direct and to enforce in the market area the provisions of this Act the rules, bye-laws and the conditions licences granted under the Act in connection with the purchase and sale of the agricultural produce with which it is concerned. It shall also be the duty of every market committee to collect and maintain such information relating to market intelligence as may be prescribed and to supply the same to Government whenever so required.'

S. 29. The Chairman, Vice-Chairman or secretary of the market committee or any member, officer or servant authorised by the committee in this behalf, may -

(a) for carrying out any of the duties imposed on the market committee under this Act at all reasonable times enter and search any place, premises or vehicle, and

(b) seize any article in respect of which he has reason to believe that an offence under this Act has been or is being or is about to be committed, and any vehicle or animal which he has reason to believe to be in use or to have been used or to be about to be used for carrying such articles, and shall detain the same so long as may be necessary in connection with any proceeding under this Act or for a prosecution:

Provided that a report of the seizure shall forthwith be made by the person seizing the article, vehicle or animal to the Chairman if he is not the Chairman himself: Provided further that the grounds for seizing any such article, vehicle or animal shall be communicated in writing within twenty four hours of the seizure to the person from whose possession the same was seized.

S. 30(1) The Chairman, Vice Chairman or Secretary of the market committee or any other member, officer or servant authorised by the committee in this behalf may summarily evict from the market any person found to be operating in the market area without holding a valid licence.

(2) Such eviction shall be without prejudice to any punishment to which the person evicted may be liable under this Act.

Section- 36 pertains to penalty for contravention of section 6 or 8. Section- 41 pertains to trial of offences. Section- 42 pertains to previous sanction necessary for prosecution.

In exercise of the powers conferred by section 59 of the said Marketing Act, the Government of Gujarat has framed the Rules which are known as The Gujarat Agricultural Produce Markets Rules, 1965 (for short hereafter to be referred to as the said Rules). The relevant rules of the said Rules are reproduced as under:-

Rule 54 (1) Place of sales of agricultural produce in the market -

(1) All agricultural produce arriving into the market shall be brought into the principal market yard or sub-market yard in the first instance and shall not, be bought or sold at any place outside such yards:

Provided that ginned cotton, husked paddy, groundnut seeds split, pulses and tobacco may be sold anywhere in the market area in accordance with the provisions of byelaws. (2) Details of all agricultural produce resold in wholesale in the market area shall be reported to the market committee.

(3) Any person who contravenes the provisions of this rule shall, on conviction, be punishable with fine which may extend to Rs. 500/ -.

Rule-56. Licenced traders and general commission agents -

(1) Any person desiring to obtain a licence to do business as a trader or a general commission agent in agricultural produce in any market area or part thereof shall make a written application in such form as the market committee may determine to the market committee and shall pay such fees as may be determined by the market committee subject to a maximum of Rs. 200 / -.

Provided .....

(2) to (6) xxx xxx xxx xxx

Rule 57 pertains to business in market area prohibited except under licence. On careful perusal of the entire scheme of the Act as well as Rules made thereunder, it is very clear that the facts and circumstances of the case in no way fall within the ambit of the Act.

(16) Now in the background of the aforesaid discussion, picking up the thread of arguments made by Mr. Zaveri, learned counsel for the appellant in paragraph-9 of this judgment further, at the outset it must be stated that the same has failed to convince me. First of all, it is not possible to agree with Mr. Zaveri that since agricultural produces are purchased by the accused from the office of the Mamlatdar and thereafter the accused sells it to the customers for a price, therefore, he as a dealer of the fair price shop was also a 'trader' within the defined meaning under the Marketing Act. Firstly, definition of 'trader' does not expressly include any sole and exclusive dealer of the fair price shop and rightly so. Secondly, the exclusive dealer of the fair price shop is certainly not a free-lance trader of his own as the word trader is generally known and commonly understood. Further a dealer in the fair price shop is not a 'trader' or a businessman in the sense that like any other traders or a business man while purchasing the agricultural produce, he is not in a position to strike a deal and then to sell it off at the highest possible price, keen of course to have a margin of profit as much as his greed and the circumstances would permit him to have. Thirdly, an exclusive dealer in fair price shop is merely serving as a distributing channel or a supply-line between the Government go down and needy economically weaker sections of the society. Further, nor does the case of the accused fair price shop dealer can be brought within the fold of the word 'general commission agent' as defined in S. 2(vii) of the Market Act. Thus, S. 8 comes into operation only when a 'person operates in a market area' i.e. operates independently as a trader by purchasing and selling the agricultural produce at arbitrarily -fixed profit. The exclusive fair price shop dealer has not those traders-wings to be a trader in the sense that he can fly anywhere, in any direction, at any heights, in whatever manner and wherever he likes.

(17).Further, in the matter of licences under the Marketing Act, a provision is also made in Rule 56 of the said Rules, which pertains to the licencied traders and general commission agents. The sum and substance of this rule is that if any person is desirious of obtaining a licence to do business as a 'trader' or a 'commission agent'. in agricultural produce in any market area, he shall make a written application in such form as the market committee may determine and shall pay such fees as may be determined by the market committee subject to the maximum of Rs. 200 / -. Thus, it is very clear that a licence as a condition precedent is necessary only in those cases, wherein any person is desiring to do a business as a 'trader' or a 'general commission agent' in agriculture produce (in any market area). Therefore a person like an accused in the instant case, who is not desiring to do a business as a 'trader' or 'commission agent' but wants to carry on his limited activity as an approved agent of the Government as a dealer in fair price shop, it is not necessary for him to obtain the licence. Merely because a fair price shop dealer incidentally is having a shop in a market area and distributes items which also fall within the ambit of the word 'agricultural produce' as defined in Section 2(i) of the Marketing Act, that by itself does not bring him within the statutory limits and liability to obtain a licence, unless he is also proved to be a free-lance trader in commodities over and above those supplied by the Government for distribution.

(18) This does not mean that the market committee will be helpless and powerless to control a 'trader' within the meaning of the Mar ' keting Act, operating clandestinely under the guise of a dealer in fair price shop. In this regard, it is necessary to bear in mind the powers and duties of the market committee as provided in sections 23, 26 and 27 and 30 of the Marketing Act. Thus, on examining the aforesaid provisions, it is very clear that the market committee is fully empowered under the said Marketing Act to enter and search any place, premises or a vehicle in order to carry out and implement the objectives of the Act. The said market committee is also empowered to remove unauthorised person from the market i.e. the person carrying on business as a trader or as a commission agent or as a broker as defined in the Act prejudicially to the interest of the poor, illiterate and ignorant agriculturists. Thus, if a person like an accused in the present case, who is strictly and exclusively a fair price shop dealer, if he happens to be found ultimately to be a trader dealing in purchase and sale of agricultural produce over and above supplied by the Government for distribution at fair price, by the market committee, then in that case, the market committee is not powerless to control him under the Act.

(19) Therefore, if the shop keeper is a person who is a dealer in a fair price shop and is also trading in agricultural produce in a market area, other than the one covered by the fair price shop, then he has to abide by the statutory rules and regulations and the terms and conditions thereunder of both i.e. under the said Market Act as well as under the scheme of fair price shop. But in case, the dealer in a fair price shop is exclusively and strictly dealing in the agricultural produce under the authorisation and terms and conditions regarding fair price shop of the Government, then in that case, there is no duty cast on him to have a licence from the marketing committee under the said Market Act. It has got to be borne in mind that the dominant object under the scheme of fair price shop is an equitable distribution and availability of the essential commodities at fair and reasonable price so as to benefit the consumers - a class consisting of the weaker section of the society. The primary consideration, therefore, under the scheme of fair price shop is a fixation of price, which would be in the interest of the consumers, and the individual interests, howsoever precious or great, if need so arises~ it has got to yield to the larger and ultimate interest of the consumers weaker section of the society.

The last submission of Mr. Zaveri was to the effect that witnesses in terms have deposed to the effect that the accused even as a dealer in a fair price shop was bound to have a licence under the said Market Act. I do not agree. Merely because the said witnesses are labouring under some mis-conseption of law and asserts that the accused was under a legal obligation to obtain a licence, that by itself cannot add or abridge the legal position. No provision of the Act can ever be interpreted by' these assertions of any witness, divorced of its spirit, aims and objects of the Act and the rule of common sense interpretation.

(20) Thus, as per the above discussion, having examined the question involved from all angles, the net result of the same is answered as under:

(i) If a person happens to be a dealer in a fair price shop falling within the stream lined category as referred to in the earlier paragraph-2 of this judgment, then in that case, it is not obligatory to obtain a licence under the Marketing Act to carry on the distributing activity of the agricultural produce to the customers supplied by the Government, even though such shop is situated within the market area.

(ii) As against the first category, if any person dealing in the fair price shop is also desiring to carry on his activity as a trader by purchasing and selling the agricultural produces other than and/ or over and above the supplies made by the Government, it will be obligatory upon him to have the licence under the Act,

(iii) Though a person falling in the first category, is held to be not under the legal obligation to obtain a licence to carry on his distribution activity, yet to the extent his shop is situated within the market area, he would be subject to the power of supervision and check under the authorities provided under the said Marketing Act in order to see that under the clever disguise of running an exclusive fair price shop, a fair price shop dealer is not clandestinely carrying on his activity as a 'trader' or a 'broker' or a 'general commission agent' as defined in the Act.

Thus, in view of the facts and circumstances of the case, it was not necessary for the accused to obtain licence under the said Marketing Act, as his activity of distributing agricultural produce does not fall in ambit of word 'trader' or any other provisions of the Market Act.

(21) In the result, the impugned judgment and order of acquittal passed by the trial court is confirmed and the appeal against the acquittal deserves to be dismissed and hence it is dismissed accordingly.

(22) Appeal dismissed.


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