HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2176 of 2004 Date:04.02.2011 Between: The Agricultural Market Committee, Kurnool, rep. by its Selection Grade Secretatry. ….Appellant And: Pruthvi Agro Tech Private Limited and another .…. Respondents. HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2176 of 2004 JUDGMENT: This appeal arises out of the order of acquittal passed by the Judicial Magistrate of the First Class, Kurnool in Summary Trial Case No.6 of 2002 on 31.8.2004. The appellant herein was prosecuted for the offence under Section 17 read with Section 23 of A.P. (Agricultural Produce & Live Stock) Market Act, 1966 and amended Act, 1987(for short, the Act) alleging that the accused obtained licence from Agricultural Market Committee, Kurnool and doing business of notified commodities of the Agricultural Market Committee, Kurnool like processing seeds in the notified area of the Agricultural Market Committee, Kurnool for the years 1995-96 to 1999-2000. The Secretary who is assessing authority has issued notice dated 24.11.2000 to the accused in which he has requested to submit his annual accounts and particulars of sale and purchase for the year 1998-99 to 1999-2000. But, the accused failed to submit his accounts to the Market Committee. Again his Secretary given show cause notice dated 31.5.2001 to the accused. The said show cause notice was also received by the accused. But, he did not produce the accounts to the committee and thereby committed the offence under Section 17 of the Act. Hence the accused is liable for punishment under Section 23 of the Act. When the appellant was examined under Section 251 Cr.P.C., he pleaded not guilty for the said offence. The complainant in order to establish the offence, examined P.W.1 and got marked Exs.P.1 to P.6 on their behalf and even though no defence witnesses were examined, they got marked Exs.D-1 to D-7 through P.W.1. After taking into consideration of both oral and documentary evidence, the lower court has found the accused not guilty for the offence under Section 23 of the Act and thereby acquitted him under Section 251 Cr.P.C. Aggrieved by the said acquittal, the present appeal is filed. Now the point that arises for consideration is whether the complainant able to establish the offence under Section 17 punishable under Section 23 of the Act? The learned counsel for the appellant has pleaded that the accused inspite of receiving the notice for submitting the account books, he has not produced the same and thereby he has violated the Section 17(c ) of the Act and hence he is liable for punishment under Section 23 of the Act. The lower court has observed that the P.W.1 has not produced any evidence to show that the notices Exs.P.1 to P.4 said to have been issued to the accused were served on him and further observed that as the licence was renewed, it has to be presumed that he has paid all the market fee by the date of renewal of the licence. The P.W.1 has stated that the notice was received by the accused but he has not filed any acknowledgement to show that the accused received the said notice. Exs.P-1 to P.4 are the said notices but they did not contain any endorsement to show that the said notices were served on the accused. Admittedly, the accused has not submitted the account books to the complainant. The lower court has observed by relying upon the decision reported in 1988 ALT (1) NRC page 35 payment of any arrears of market fee by trader is condition precedent for renewal of licence fee. P.W.1 admitted that the licence of the accused was renewed upto the year 2003 and according to him there are no arrears as on the date of renewal of the licence. As such the accused has not committed any offence under Section 17 of the Act. Section 17 (c ) of the Act deals with that “(1) the assessing authority or any officer of the department of Marketing not below the rank of an Assistant Director of Marketing authorised by the Director of Marketing in this behalf may, for the purposes of this Act, require any trade to produce before it or him the accounts, registers and other documents and to furnish any other information relating to his business or the levy of fees.” But, it is contain that in the absence of production of registers, the Secretary is entitled to search and seize the said records. According to the complainant, the violation of Section 17 punishable under Section 23 of the Act. Section 23 of the Act deals with penalties and Section 23(5) of the Act deals with punishment for the offence under Section 17(c ) of the Act and as per the said Sub Section (5) of Section 23 of the Act “any person who (i) prevents or obstructs inspection, entry, search or seizure by the assessing authority or an officer authorised under Section17-C in contravention of the terms thereof; or (ii) prevents or obstructs inspection of zany notified agricultural produce, livestock or products of livestock or of any vehicle, vessel or other conveyance carrying such produce, by the officer aforesaid, shall, on conviction, be punished with imprisonment which shall not be less than three months but which may extend to six months.” Therefore, even the Section 23(5) (i) of the Act also does not provide punishment for non production of account books as demanded by the Marketing Committee. The learned counsel for the appellant has pleaded that the Rules provides for punishment for non production of the records. Rule 70 of the Rules framed under the Act deals that Registers to be kept by traders, commission agents, weighment etc., As per Sub Section (i) of Rule 70 of the Rules, every licensed trader, commission agent, ginner, presser, processor, warehouseman, importer, exporter, stockists and any other licensed person operating in the notified area shall maintain accounts in such manner and submit such reports and returns to such authority as may be specified by the Market Committee in its behalf, 2) if any licensed person fails to send any reports or returns under this rule if the Secretary or the Director considers it necessary to examine the account books relating to the business of any such person, to satisfy himself about the corrections of any report or returns submitted by him or for any other sufficient reason, the Secretary or the Director, as the case may be, may direct such person to produce before him the account books and other relevant records and documents for the inspection and to explain the contents thereof. Such records and documents of the licensed person shall be treated as confidential except for purposes of any Government Department . If any licensed person fails, without sufficient cause, to comply with the directions of the Secretary or the Director aforesaid, he shall be punishable with fine which may extend to Rs.500/-. The learned counsel for the appellant by relying upon the said Rule 70 (2) pleads that accused is liable to be punished by imposing a fine of Rs.500/-. In support of his contention he relied upon a decision rendered in Rayalaseema Jute Mills v. State of A.P.,[1] wherein the single Judge of this Court has held that when the accused found guilty under Section 17(c ) (i) of the Act he has to be sentenced to pay fine of Rs.500/- under Rule 70 (2) of the Act. In the above said decision a notice was served on the appellant therein demanding for production of the account books and he gave a reply stating that the said books are Commercial Tax Department disbelieving the version. The Magistrate is found him guilty of offence under Section 17(1) and Section 23(5) of the Act and imposed sentence of simple imprisonment for three months and on appeal the I Additional District Judge, Chittoor has confirmed the said conviction and sentence passed by the Magistrate. Aggrieved by the same, the appeal came up for hearing before this Court and this Court by examining provisions of Section 17(i) and Section 23 has observed that Section 23 of the Act is not applicable and as per Rule 70 imposed sentence to pay fine of Rs.500/-. In the present case, the contention of the respondent is that the alleged notices marked as Exs.P.1 to P.4 were not served on the respondent and the lower court also found that the appellant has failed to produce any evidence to show that the service of notice on the respondent. When the notices demanding for production of the account books are not served on the respondent herein, the question of his failure to comply with Section 17(c ) (i) of the Act does not arise. More over under Rule 70 of the Act, if any licensed person fails to comply with the direction of the Director, without sufficient cause he shall be imposed with fine which may be to the extent of Rs.500/-. Therefore, if the respondent fails to submit the records and fails to comply with the direction of the Secretary, without reasonable cause then only he is liable for punishment. In the present case as rightly observed by the lower court, the appellant-complainant has failed to establish that the notice was served on the respondent for production of the account books. In the absence of any proof of service of notices which were marked as Exs.P.1 to P.4 for production of the accounts books, it cannot be said that he has violated Section 17(c )(i) of the Act and is liable for punishment under Rule 70 of the Act. Hence, the lower court has rightly held that the accused is not committed any offence under Section 17 of the Act and the said finding of the lower court does not warrant any interference by this Court. Hence, the appeal is dismissed. _____________________ P.DURGA PRASADJ. Date:04.02.2011 Gk. HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2176 of 2004 Date:04.02.2011 Gk. [1] 2009-ALT (Cri)-1 307