M.B.SHAH - (1.)This group of Special Criminal Applications raises one common point whether the Food Corporation of India is bound to obtain licence under sec. 27 of the Gujarat Agricultural Produce Markets Act 1963 (hereinafter referred to as the Act) read with Rules 56 & 57 of the Gujarat Agricultural Produce Markets Rules 1965 (hereinafter referred to as the Rules).
The Food Corporation of India has filed these Special Criminal Applications for quashing proceedings of criminal cases pending before the learned Judicial Magistrate First Class Khambhat and Judicial Magistrate First Class Baroda arising from different criminal complaints filed by Agricultural Produce Market Committee Khambhat and by the Inspector of Agricultural Produce Market Committee Baroda. It is further prayed that a writ of mandamus or any other appropriate writ order or direction may be issued against the respondents for not insisting upon obtaining the licence by the petitioner Corporation from the respective respondents for the purpose of carrying out its activities in respective market areas and not to levy any market fees or any fees whatsoever from the petitioners.

In Criminal Case No. 907 of 1980 filed before the Judicial Magistrate First Class Khambhat it has been averred that the Food Corporation of India had purchased large quantity of wheat from village Tarapur which is situate within the Khambhat market area and that it had stored it and subsequently sold it to the Government and the flour mills. During the time from 1-6-1978 to 10-4-1979 the Corporation had purchased 96632 quintals of wheat and from this purchase 902 quintals of wheat were sold to flour mills and 1186 quintals of wheat were sold to the government. So in all the petitioner had sold 2088 quintals of wheat at village Tarapur Taluka Khambhat. It is further averred that on 11-4-1979 the petitioner had stocked 94 544 quintals of wheat and therefore the Corporation had committed breach of sec. 6(2) and section 8 of the Act and for the said breach the Corporation is punishable under section 36(1) of the Act.

Criminal Complaint No. 920 is filed in the Court of the Judicial Magistrate First Class Khambhat for breach of Rules 48 & 49 of the Rules as the Food Corporation had not paid the licence fees for which it is punishable under Rule 52 of the Rules. Criminal Case No 1666 of 1980 is also filed for the offence punishable under Rule 52 for the breach of Rules 48 & 49 of the Rules.

Criminal Case No. 1667 of 1980 is filed for breach of sec. 6(2) and sec. 8 of the Act for which it is punishable under sec. 36(1) of the Act. Criminal Case No. 2685 of 1980 is filed for violation of Rules 48 and 49 of the Rules for which it is punishable under sec. 52 of the Act.

In all these types of 8 complaints are filed before the learned Judicial Magistrate First Class Khambhat and one complaint is filed before the learned Judicial Magistrate First Class Baroda for breach of sec. 6(2) and sec. 8 of the Act.

(2.)The learned advocate appearing on behalf of the petitioner has contended that the activities of the Food Corporation of India would not be covered under sec. 26 of the Act and Rules 56 & 57 of the Rules. It was further submitted by him that Food Corporation of India cannot be said to be trader within the meaning of sec. 23 of the Act as it was not carrying on any business of buying or selling of agricultural produce as averred by him in his petition para 3. In any set of circumstances the petitioner is carrying on its activities on no loss no profit basis and hence the said activities cannot be said to be business.
(3.)Before dealing with the contentions raised by the petitioner it would be necessary to refer to the relevant provisions of the Act. Section 2 (xxiii) of the Act reads as under :
"trader means any person who carries 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."

In view of this section it is clear that if any person who is carrying on business of buying or selling agricultural produce would be considered as a `trader within the meaning of the Act and also a person who carries on business of processing of agricultural produce for sale.
Section 6(2) and sec. 8 of the Act read as under :
"6(2). Notwithstanding anything contained in any law for the time being in force from the date on which any area is declared to be market area under sub-sec. (i) no place in the said area shall be used for the purchase or 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 continues in force until the establishment of a market in the said area and for such period thereafter as may be prescribed.

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."
(Emphasis supplied)
Section 6(2) of the Act is a general section which prohibits any activity of purchase or sale of any agricultural produce specified in the notification except in accordance with the provisions of this Act. Further sec. 8 of the Act prohibits any person from operating in the market area or any part thereof except under and in accordance with the conditions of a licence granted under this Act. This section prohibits that no person can operate in any manner for purchase or sale of agricultural produce in the market area without any licence and he has to operate in accordance with the conditions of licence granted under the Act. A combined effect of these sections would be that a person who wants to operate in the market area has to obtain a license and has to carry on his operations only in accordance with the conditions of license as well as in accordance with law.