Kapoor Singh vs Punjab Agricultural Marketing Board, Chandigarh

M.L. Singhal, J.—Through this Crl. Misc. Petition filed under Section 482 Cr. P.C. Kapoor Singh has prayed for the quashing of complaint Annexure P2 and the order summoning them i.e. M/s. Kapoor Cold Storage, Old Hoshiarpur Road, Near Lamba Pind, P.O. Chogetti, Tehsil and District Jalandhar through Managing partner Shri Kapoor Singh.

Factual matrix of this criminal miscellaneous petition may be briefly noticed.

The Punjab Agricultural Marketing Board, Chandigarh through Secretary, Market Committee, Jalandhar instituted complaint Annexure P2 in the Court of Chief Judicial Magistrate, Jalandhar against M/s. Kapoor Cold Storage, Old Hoshiarpur Road, Near Lamba Pind, PO Chogetti, Tehsil and District Jalandhar through Managing Partner Shri Kapoor Singh, (ii) Shri Kapoor Singh son of Shri Chanan Singh and others under Section 37 of the Punjab Agricultural Produce Markets Act, 1961 read with Rule 39 of the Punjab Agricultural Produce Markets (General) Rules, 1962 on the allegations that accused No. 1 is a firm carrying on business of storing of potatoes etc. at their cold storage situated at Old Hoshiarpur Road near Lamba Pind, Jalandhar. By virtue of the provisions contained in Sections 6, 7 and 8 of the aforesaid Act, the accused firm was required to apply for the licence for the business of agricultural produce. Accused No. 1 through its partners i.e. accused No. 2 and 4 applied for licence under the aforesaid Act and the Rules. Licence was granted to them vide No. 2198/JND/XO on 4.1.1985. Upto 31.3.1986, the licence remained in operation. By virtue of the terms and condition of the licence aforesaid and also by virtue of provisions of sections 10/13 read with rule 21, licence was required to be got renewed after the expiry of the period for which that licence was granted. Aforesaid licence was got renewed from time to time upto 31.3.1994 on the application of accused No. 1 and on payment of the requisite fee. After 31.3.1994, the aforesaid licence was not got renewed. Accused No. 1 was called upon to get that licence renewed vide letter dated 5.11.1994 but to no effect. Despite issuance of notices sent on 7.10.1995, 13.10.1995 and 27.10.1995, accused No. 1 did not get the licence renewed and continued carrying on business of storing of agricultural produce in their aforesaid cold storage. Carrying on business of storage of agricultural produce in their aforesaid cold storage despite the licence having not been got renewed, the accused committed offence as provided under Section 37 of the Punjab Agricultural Produce Markets Act, 1961 read with Rule 39 of the rules framed thereunder. Show cause notice was sent under registered cover to the firm as required by the rules framed under aforesaid Act. Still they failed to get the licence renewed.

Since this was a complaint instituted by the Punjab Agricultural Marketing Board through Secretary Market Committee, Jalandhar who is a public servant, Chief Judicial Magistrate, Jalandhar passed an order summoning the accused for trial.

Quashment of complaint Annexure P2 and the summoning order Annexure P4 is being claimed urging that he (petitioner) is an agriculturist engaged in the avocation of growing, rearing, producing and preserving agricultural produce mainly seed potato, from the agricultural lands owned by him, the members of his family and the lands taken on lease. He is managing cold storages at Jalandhar owned in partnership with the other members of his family who are in possession of the lands either as owners or as lessees. He is thus a "Producer" as defined under Section 2(O) of the Punjab Agricultural Produce Markets Act, 1961. He was thus not required to obtain licence under the said Act. In the past licence was obtained on the suggestion of the Secretary, Market Committee, Jalandhar that if the obtains the licence, that licence would enable him to fetch better price for his agricultural produce. He obtained that licence and got it renewed for some years. He stopped getting that licence renewed when the officials of Punjab Agricultural Marketing Board started harassing him by putting forth undue demands upon him in the garb of being licencing authority. Market Committee, Jalandhar issued show cause notice to him vide letter No. 1917 dated 5.11.1994 Annexure P3. He replied that show cause notice through Annexure P4. Till 13.10.1995, there was no correspondence from Market Committee and, therefore, it was presumed by him that the matter stood closed. He received communication in the form of letter dated 13.10.1995 Annexure P5. He sent reply dated 14.10.1995 Annexure P6. He made a complaint to the Deputy Commissioner, Jalandhar. Notice Annexure P7 was received from Administrator, Market Committee, Jalandhar requiring him to attend the office of Market Committee, Jalandhar on 31.10.1995 at 11 a.m. He deputed his representative to attend the office. It was reported that the said representative was put into fear of injury to the good name and reputation of the petitioner and his family in order to extort money from him. It was threatened that the Market Committee would prosecute the petitioner and his family under the aforesaid Act. He sent Annexure P8 to the Secretary, Market Committee, Jalandhar in response to the respondent''s allegation that nonrenewal of licence even by a producer is a crime. In nutshell, the grievance of the petitioner is that complaint Annexure P2 is not competent as they are agricultural producers preserving their own agricultural produce in the said cold storage, which are mainly seed potato. Complaint Annexure P2 is barred by limitation in view of Section 468 of the Code of Criminal Procedure because the nonrenewal of licence is punishable only with simple imprisonment of one month and fine of Rs. 500/ as the maximum penalty. Nonrenewal of the licence was in the knowledge of respondent on 5.11.1994 when show cause notice Annexure P3 was issued. Institution of complaint is mala fide with the object to stall the prosecution of civil suit filed in the court at Jalandhar seeking the declaration that the aforesaid show cause notices are illegal, mala fide, void and inoperative and for injunction restraining the respondents from taking any action in pursuance to the allegations made in the said show cause notices and for compensation for the harassment to which they have been put on account of the said show cause notices.

In the return filed by the respondents, the respondents opposed the quashing of complaint and the summoning order urging that there is nothing on the record of the Market Committee, Jalandhar that the petitioner is an agriculturist engaged in avocation of caring, rearing, producing and preserving agricultural produce namely seed potato from the agricultural lands owned by him and the members of his family or the lands taken on lease. Petitioner owns three cold storages for storing agricultural produce of other farmers and dealers on commercial plan and charges rent and also for sale and purchase of agricultural produce. It was denied that he is a producer. He is a producer and that was why he applied for licence and got it renewed from time to time. Nonrenewal of licence by him after 31.3.94 but continuing to carrying on business of storage and sale/purchase is contravention of the provisions of Section 6(3) and 8 of the Punjab Agricultural Produce Markets Act, 1961. It was denied that the licence was obtained by the petitioner on the suggestion of the respondent Market Committee. Show cause notice was issued to the petitioner. His reply to the show cause notice was not found satisfactory. This complaint was instituted when there was no other alternative left and the petitioner had failed to get the licence renewed despite issuance of notices dated 7.10.1995, 13.10.1995 and 27.10.1995. No question of limitation arises as the offence in contravention of Section 6(3) is still continuing.

It was contended by the learned counsel for the petitioner that the petitioner firm M/s Kapoor Cold Storage raises seed potatoes from their own land for sale to the farmers and for preserving the produce, they are maintaining cold storages and since they are preserving their own agricultural produce, they are not liable to obtain licence from the Market Committee. In support of this contention, he drew my attention to proviso to subsection 3 of Section 6 of the Act which reads as follows :

"Provided that a licence shall not be required by a producer who sells himself or through a bona fide agent not being a commission agent, his own agricultural produce or the agricultural produce of his tenants on their behalf or by a person who produces any agricultural produce for his private use."

He drew my attention to proviso to Section 8 of the Act which reads as follows :

"Provided that a producer shall not be deemed to set up, establish or continue or allow to be continued a place as a market for the purposes of purchase, sale, storage or processing of agricultural produce if the sells his own agricultural produce outside the premises set apart by the committee for the purpose of purchase, sale storage or processing of agricultural produce."

It was contended by the learned counsel for the petitioner that the petitioner falls in the exempted category and therefore, Sections 10 and 6(3) are not applicable. According to Section 6(3) of the Act, no person unless exempted by rules made under this Act shall either for himself or on behalf of another person or of the State Govt. within the notified market area, set up, establish or continue or allow to be continued any place for the purchase, sale, storage and processing of the agricultural produce so notified, or purchase, sell, store or process such agricultural produce except under a licence granted in accordance with the provisions of this Act, the rules and byelaws thereunder and the conditions specified in the licence. It was contended that a bare reading of section 6(3) of the Act shows that if a person falls in any of the exempted categories, he can carry on the business in question anywhere in the notified market area without a licence. Under the proviso to Section 6(3) (ibid) exemption is in favour of producer and a person who purchase agricultural for his private use. There can be no manner of doubt that no licence need be obtained by a producer who sells himself or through a bona fide agent not being a commission agent his own agricultural produce or the agricultural produce of his tenants on their behalf or by a person who purchases any agricultural produce for his private use. In the instant case, however, the contention of the respondent is that firm M/s Kapoor Cold Storage is doing the business of purchase, sale, storage and processing of the agricultural produce within the area notified by the Market Committee and, therefore, this firm is required to obtain licence as envisaged by Section 6(3) of the Act and if no licence is obtained under Section 6 of the Act, that will attract penalty provided order Section 37 of the Act read with rule 39 of the Punjab Agricultural Produce Market Rules, 1962.

So far as the proposition of law canvassed at the Bar is concerned, that hardly admits of any dispute.

It is, however, a question of fact whether M/s Kapoor Cold Storage are engaged only in the preserving of their own agricultural produce raised from the agricultural lands owned by them or taken by them on lease and the cold storages are being maintained for preserving their own agricultural produce. In this Crl. Misc. petition, this question of fact cannot be gone into. It can be gone into only by the Magistrate in the complaint Annexure P2.

Complaint is at the threshold. So far, the accused have not appeared before the Magistrate. Accused should have appeared before the Magistrate and applied for the dismissal of the complaint if no offence was made out. In Madhu Limaye v. State of Maharashtra, AIR 1978 SC 47, the Hon''ble Supreme court took this view that the power vesting in this Court by virtue of Section 482 Cr.P.C. is to be exercised not as a matter of course but it should be exercised very sparingly to prevent abuse of the process of the Court or otherwise to secure the ends of justice. It should not be resorted to if their is specific provision in the Code of Criminal Procedure for the redress of the grievance of the aggrieved party.

It was contended by the learned counsel for the petitioner that the Market Committee should not have resorted to the filing of complaint straightaway. Market Committee should have called upon the petitioner to produce all accounts and registers maintained by them and documents relating to the stock of agricultural produce or purchase, sale, storage and processing of said agricultural produce in their possession in view of the provisions of Section 33A(ii) of the Act. In support of this submission, he has drawn my attention to M/s Bajrang Khandsari Udyog v. State of Haryana, 1984 RRR 254 (P&H) : 1984 PLJ 49. Suffice it to say this provision was required to be complied with if the question of payment of market fee levied under the Act by them was in issue. In this case, the Market Committee did not institute the complaint Annexure P2 against the accused all at once. Before instituting complaint show cause notice had been given to them calling upon them to show cause why they were not required to obtain the renewal of the licence after 31.3.1994. In reply to the show cause notice Annexure P3, they furnished reply Annexure P4. In show cause notice Annexure P5 dated 13.10.1995, Market Committee told the firm that they were doing the business of the sale, purchase or storage or processing of agricultural produce within the area notified by the Market Committee without obtaining licence under Section 10 of the Act. Firm was asked to obtain licence within 7 days of the receipt of the notice. Vide Annexure P6 the firm gave reply to the show cause notice. Vide Annexure P8, the firm gave reply to the notice received by them under Section 31 of the Act as well as the intention to file criminal complaint urging that they are producers of agricultural produce and running cold storages for preserving their own agricultural produce and the institution of complaint without considering their reply to the notice would be harassment to them affecting their reputation and good name.

In show cause notice Annexure P3, the Market Committee had observed that during investigation it had been noticed that this firm was functioning without getting the licence renewed under Section 10 of the Act and the firm was thus violating Section 6(3) of the Act. Learned counsel for the petitioner contended that it was the duty of the Market Committee to have adjudicated upon the claim of the petitioner that they were not liable to hold a licence under the Act and if the Market Committee had adjudicated against him, he could approach the Chairman of the Marketing Board under Rule 18(5) of the rules. Suffice it to say, on this analogy, the petitioner could approach the Chairman of the Marketing Board under Rule 18(5) of the rules to assail the decision of the Market Committee to institute complaint Annexure P2.

Market Committee has taken a decision and instituted complaint Annexure P2 in the Court of Chief Judicial Magistrate, Jalandhar. M/s Kapoor Cold Storage can produce the necessary evidence before the Magistrate and satisfy him that no offence is made out against them and the Magistrate can dismiss the complaint if he is satisfied that the evidence produced by them does not indicate the commission of the offence alleged against them. If licence as envisaged by Section 6 of the Act is required to be obtained and is not obtained, the nonobtaining of the licence would be a continuing offence. For a continuing offence, limitation under Section 468 Cr.P.C. does not apply. In Bhagirath Kanoria v. State of M.P., 1984(2) RCR (Crl.) 393 : AIR 1984 SC 1688, the Hon''ble Supreme Court held that "where the offence is continuing offence, limitation under Section 468 Cr.P.C. shall not apply. Where a controversy is raised as to whether the offence is of a continuing or of noncontinuing nature considering the object and purpose of the Act, cognizance of the offence ought to be taken up after the expiry of the limitation period if any such period is applicable because the interest of justice so requires." In my opinion this complaint should not be quashed. If the (firm M/s. Kapoor Cold Storage and others want they may, after appearing before the Magistrate, produce before him the evidence in their power or possession showing that they are agriculturists engaged solely in the avocation of caring, rearing, producing and preserving their agricultural produce from the agricultural lands owned by them or taken by them on lease and they have set up cold storages for preserving their own agricultural produce and claim dismissal of the complaint.

For the reasons given above, this criminal miscellaneous petition fails and is dismissed.