Mr. R. K. Soni, the learned Public Prosecutor has submitted that actually, it is 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 produce by establishment of regulated markets. In this respect, reliance was placed on M/s Narayan Hari Shanker V. State of Raj. - (1.) THESE appeals are directed against the Judgments of the learned Munsif & Judicial Magistrate, Pali dated 22. 9. 1978 and relate to the acquittal of accused-respondents of the offences under ss. 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.
(2.) S. B. Criminal Appeals No. 475/1978, 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 of Pali after purchasing it outside the market 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 (hereinafter referred to as 'the Rules') apply to the Retailers as well. Thus, it is an admi-tted 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 under s. 313 Cr. P. C. that the cotton-seed is not produced in the market 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 case separately. S. 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 made under s. 37 or s. 38, to be a retail sale in respect of such agricultural produce. The Krishi Upaj Mandi Samiti, Pali (hereinafter 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 fosrk ls rkri;z ml O;f ls gsa tks mihkkskvksa dks fo; gsrq e. Mh esa izfrfnu dqy feykdj vf/kdre 500 :i;s rd dh lhek esa f"k ftulksa dks ; djrk gsa vksj mldk iath;u e. Mh lfefr esa gqvk gsa** 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 s. 4 (2) of the Act came up for consideration before this Court in Firm Multanmal Pukhraj Vs. Agricultural Produce Market Committee 'a' Class, Paota, Jodhpur (1) 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 whole-seller 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 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 hold ing that the explanation to clause (2) of S. 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 Berch 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 subs. (2) of s. 4 including the Explanation thereto 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 on the learned single Judge about the meaning of sub-s. (2) of S. 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-s. (2) of S. 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 Multanma) Pukhraj Vs. Agricultural Produce Market Committee, 'a' Class, Paota, Jodhpur (supra) 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 vs. State of Rajasthan (2), wherein the question about the constitutionality of the provisions of ss. 2 (vii), (x), (xiii) and (xvii) and ss. 4,5 (1), 9 and 14 of the Act as also of r. 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 Arts. 14 and 19 of the Constitution. In doing so the learned single Judge placed reliance on Arunachala Nadar vs. State of Madras (3) 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 of 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, weigh man, measurers, surveyors, warehouseman all are intended to achieve the same object. " (4 ). He also placed reliance on a decision of their lordships of the Supreme Court in Kewal Krishan Vs. State of Punjab (5), 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 throughout the extensive market area. " I 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 net?
(3.) THE crucial question to be decided by this Court in disposing of these appeals is the interpretation of the explanation appended to s. 4 (2) of the Act, which reads as under: " Explanation : Nothing in sub-sec. (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 or if such produce is sold to such purchaser by way of a retail sale. " Sec. 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-sec. (1), no place in the said area shall, subject to the provisions of s. 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 Govt, disclosing its intention of exercising control over purchase and sale of agricultural produce in specified area. THE State Govt, 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. S. 4 (1) of the Act provides that after the expiry of the period specified in the notification issued under 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 Govt, may, by notification in the Official Gazette, declare the area specified in the notification under s. 3 or any portion thereof 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 s. 4 (I) of the Act, the State Govt, 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 & Judicial Magistrate. Pali vide order dated 22. 9. 1978 came up for consideration before a learned single Judge of the Court in State Vs. Moolchand (6) and four other similar appeals, decided on May 20, 1983) wherein it was held that a combined review of s. 4 and s. 14 would show that once a notification is issued under s. 4 and an area is declared as a market area, any agricultural produce bought and sold without licence under s. 14 of the Act will be violative of s. 4 (2) of the Act. The explanation to s. 4 (2) only exempt 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 by the Seller; (iii) that the purchaser should be the person who should purchase it for his own private use or he must purchase it be 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 purchase it by way of retail sale. In this vie v of the matter, according to the learned Judge, the acquittal of the accused is based on mis-interpretation of explanation to sub-clause (2) of S. 4 of the Act of 1961. There is no doubt that the judgment in State Vs. Moolchand (supra) 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 & Judicial Magistrate, Pali is correct in law and it facts and, therefore, it deserves to be maintained. He has submitted that the learned Judge in State's case (supra) although referred the decision of their lordships of the Supreme Court, which was quoted by the learned Munsif & Judl. Magistrate in his impugned judgment i. e. Mohd. Bhai Khude Bux Vs. State of Gujarat 7) but without going through, this decision critically and without properly constiu-ing the law laid down by their lordships, the learned Judge observed that para 15 of the above decision (Mohd. Bhai Khude 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 peculiar provisions of the Act and the 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 whole-seller 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 s. 4 (2) of the Act. The admitted case of the appellants is that the cottonseed 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 purchased 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. Moreover, the explanation appended to s. 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 considered to be whole-sellers 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 peri materia with the provisions of the Act. It appears that the Rajasthan Govt, 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 Mohammed Hussain Gu!am Mohammad Vs. State of Bombay 8) and Mohd. Bhai Khude Bux's case (supra ). ;