G.M. Lodha, J.
1. As all the five appeals mentioned above are identical in nature and hence they are disposed of by one common judgment. The facts of Appeal No. 485/78 are given here as an illustrative case,
2. The non-petitioner respondent was prosecuted by the Secretary, Marketing Committee (Krishi Upaz Mandi Samiti Ltd. Pali) under Section 28(1) for the violation of Section 3(2), Rajasthan Agricultural Produce Act, It is not in dispute that the respondent was doing the business of 'Kapasia' in the market area of Pali Krishi Upaz Mandi Samiti, It is also not in dispute that 'Kapasia' is an agricultural produce. However, the dispute raised by the accused is that he used to purchase Kapasia from outside Rajasthan, He only conducted retail sale of Kapasia in Pali. It was pleaded that Kapasia is not produced by the agriculturists of Pali.
3. The trial Court at the conclusion of the trial acquitted the accused on the ground that the explanation of Section 3(2) Rajasthan Agricultural Produce Markets Act permits retail sale without obtaining a license. Relying upon the decision ofHon'ble Supreme Court AIR 1962 SC 1517, Paras 15 and 19 at Page No. 1525-26, para 2 at Page 1520 and para 4 at page 1521 and further taking support from the observations made in para 10 of the decision of this Court reported in 1974 Raj LAV 203 : 1974 Tax LR 2352, the trial Court held that it was not necessary to obtain a license for retail sale of Kapasia and, therefore, the prosecution cannot succeed.
4. No one has appeared on behalf of the accused in spite of service and. therefore, the appeal was heard by considering the record and hearing Mr. A.K. Mathur for the State.
5. Although, the ease appears to be of Very trivial and insignificant nature to start with, but it raises very serious important question of law, as it affects the functioning of the Krishi Upaj Mandi Samiti throughout Rajasthan on the one hand and the question regarding liability of the traders functioning in the market area of these Krishi Upaj Mandi Samities.
6. The explanation to Section 3(2) reads as under:-
Nothing in Sub-section (2), shall apply to 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 or if such produce is sold to such purchaser by way of a retail sale.
7. Section 14 of the Act of 1961 requires the issue of license, which reads as under:-
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 warehousemen and other persons to operate in the market area on payment of the prescribed fees.
8. A combined review of Section 1 and Section 14 would show that once a notification is issued under Section 4 and an area is declared as Market; Area, no agricultural produce can be bought and sold without a license obtained under Section 14 of the Act.
9. The explanation to Sub-clause (2) of Section 4 only exempts the producer of an agriculture produce and none else. In order to avail of such an exemption the following requirements are mandatory :-
(1) That the person claiming exemption must be producer:
(2) That the producer himself must be the seller;
(3) 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.
10. 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 prerequisite condition being missing, the explanation cannot apply. 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 the purchase by him is wholesale.
11. It is surprising how the Magistrate gave benefit to the accused by misinterpreting 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 purchase it by way of retail sale.
12. I am, therefore, of the view that the acquittal of the accused is based on misinterpretation of explanation to Sub-clause (2) of Section 4 of the Act of 1961.
13. Now it is to be examined whether the two decisions relied upon by the trial Court in any way can help the accused in obtaining the acquittal as has been done by the Magistrate concerned,
14. Let me first examine the decision of the case of Kundan Mal Basti Mal v. State of Rajasthan reported in 1974 Raj LW Page 263 : 1974 Tax LR 2352 Para 10 (of Raj LW) Para 9 (of Tax LR) of this decision reads as under:-
Cotton seeds may be a component of unginned cotton, but as soon as it is separated from unginned cotton commercially it becomes a different commodity though chemically it may remain the same. Further what is important is that a commodity is bought and sold in the market proper or market yard. It is not necessary that it be produced in the market area. If it were so then by asserting that a particular commodity was not produced in a particular market area the law could very easily be evaded. Therefore, there is no point in contending that the commodity to be regulated should have been produced in the market area. It may be that the petitioner brings the commodity from Gujarat, but there is no sufficient data for holding that he acquires title in the goods while they are outside Rajasthan and he does not purchase them at Pali. These are all questions of fact which cannotcon veniently be gone into in the exercise of the extraordinary jurisdiction of this Court.
15. It is difficult to appreciate how the above observation helps, the accused. Hon'ble Justice Kan Singh as he then was, has held that it is not necessary that the commodity should be produced in the market area, further it is significant that the Hon'ble Judge has held that even though the commodity may be purchased from Gujarat, it would not mean that the trader acquire title in Gujarat and not in Rajasthan.
16. Moreover what is important is that the dealer must deal with it either by purchase or by sale or by both in the market Area. In the instant case it is admitted position that the accused sells it in the market area and, therefore, he would require a license for doing so. In my considered opinion the principles laid down in Kundanmal Bastimal's case supports the prosecution rather than the accused.
17. It would be now proper to examine the principles laid down in Mohd. Bhai Khuda Bux v. State of Gujarat AIR 1962 SC 15175 relied upon by the trial court justifies the acquittal. In the above decision validity of notification was challenged being violative of Article 14 of the Constitution. The notification provided maximum fees to be charged. The bye-laws provide that A class and B-Class dealers' licenses were challenged being violative of Articles 14 and 19 Sub-clauses (1) and (g) of the Constitution. Certain other provisions were also challenged as being ultra vires. Para 15 of the above decision considers the question whether the Act is invalid and in that contexts was observed that the Act does not control retail trade. The observations were confined to peculiar provisions of the Act, the Rules, etc.
18. 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 the petitioner is a wholesaler so far as his purchase is concerned and Kapasia is bought by him in the market area by wholesale purchases.
19. Neither paragraph 15 nor para 19 nor paras 2 and 4 in any manner lays that a. dealer who purchases goods in wholesale in the market area, though the purchases may be in the area or outside the area, but when he brings that goods in the market area for the purpose of sale, is not governed by the provisions of the Act and he need not take a licence.
20. The question of charging of market fees need not be confused with the question of taking a licence because taking of license is meant for several purposes and the most important being, the object of the Act to ensure fair price to the Agriculturists is achieved by regulations of the sale and purchase in the market area, through the agency of the market committee to a limited extent and by insisting on maintaining various record is achieved.
21. In view of the above, I am of the opinion that the acquittal of the accused is untenable and deserves to be set aside.
22. The result of the above discussion is that the judgments of the trial court acquitting the above five accused under Section 28(i), Rajasthan Agricultural Produce Markets Act, 1961 for violation of Section 3(2) and Section 17 of the Act are set aside in all the following five appeals and the accused respondents in all the following five appeals are convicted for committing the offence of Section 28(i) of the Act for violation of Sections 3(2) and 17 of the Act:-
1. S.B. Criminal Appeal No. 435/78 State of Rajasthan v. Moolchand,
2. S.B. Criminal Appeal No. 476/78, State of Rajasthan v. Farasmal,
3. S.B. Criminal Appeal No. 478/7R State of Rajasthan v. Sukan Raj.
4. S.B. Criminal Appeal No. 479/78 State of Rajasthan v. Sensmal,
5. S.B. Criminal Appeal No. 477/78 State of Rajasthan v. Shantilal.
The accused respondents in each of the above appeals are sentenced to a fine of Rs. 1,000/- (one thousand rupees) and sentenced to one month in default of payment of fine. The fine must be deposited within a period of three months from today.
23. The trial court would inform the accused and make a demand for the payment of fine as the accused respondents are absent and no one has appeared to represent them.
24. Consequently, all the five appeals are accepted as indicated above.