*THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU + CRL.P.NOs.3535, 3536, 3537, 3549, 3551, 3552, 3553, 3568 of 2010 %21-04-2010 Crl.P.No.3535 of 2010 Between: #M/s.M.K.Exports, Bhimavaram and another …..Petitioners And: $The Agricultural Market Committee, Bhimavaram And another. …..Respondents Crl.P.No.3536 of 2010 Between: #M/s.Hari Priya Marine Food Exports, Bhimavaram And another …..Petitioners And: $The Agricultural Market Committee, Bhimavaram And another. …..Respondents Crl.P.No.3537 of 2010 Between: #M/s.M.K.Exports, Bhimavaram and another …..Petitioners And: $The Agricultural Market Committee, Bhimavaram And another. …..Respondents Crl.P.No.3549 of 2010 Between: #M/s.Sri Chandrakanta Marine Exports, Bhimavaram and another …..Petitioners And: $The Agricultural Market Committee, Bhimavaram And another. …..Respondents Crl.P.No.3551 of 2010 Between: #M/s.Sri Prakash Marine Exports, Bhimavaram and another …..Petitioners And: $The Agricultural Market Committee, Bhimavaram And another. …..Respondents Crl.P.No.3552 of 2010 Between: #M/s.Hari Priya Marine Food Exports, Bhimavaram And another …..Petitioners And: $The Agricultural Market Committee, Bhimavaram And another. …..Respondents Crl.P.No.3553 of 2010 Between: #M/s.Sri Chandrakanta Marine Food Exports, Bhimavaram And another …..Petitioners And: $The Agricultural Market Committee, Bhimavaram And another. …..Respondents Crl.P.No.3568 of 2010 Between: #M/s.Hari Priya Marine Food Exports, Bhimavaram And another …..Petitioners And: $The Agricultural Market Committee, Bhimavaram And another. …..Respondents !Counsel for the Petitioners : M/s.A.V.Sesha Sai Counsel for the Respondent No.1: Standing Counsel Counsel for the Respondent No.2: Public Prosecutor <Gist : >Head Note: ? Cases referred: 1. 1990(3) ALT 31 HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRL.PETITION NOs.3535, 3536, 3537, 3549, 3551, 3552, 3553, 3568 of 2010 Date:21.04.2010 Crl.P.No.3535 of 2010 Between: M/s.M.K.Exports, Bhimavaram and another …..Petitioners And: The Agricultural Market Committee, Bhimavaram And another. …..Respondents Crl.P.No.3536 of 2010 Between: M/s.Hari Priya Marine Food Exports, Bhimavaram And another …..Petitioners And: The Agricultural Market Committee, Bhimavaram And another. …..Respondents Crl.P.No.3537 of 2010 Between: M/s.M.K.Exports, Bhimavaram and another …..Petitioners And: The Agricultural Market Committee, Bhimavaram And another. …..Respondents Crl.P.No.3549 of 2010 Between: M/s.Sri Chandrakanta Marine Exports, Bhimavaram and another …..Petitioners And: The Agricultural Market Committee, Bhimavaram And another. …..Respondents Crl.P.No.3551 of 2010 Between: M/s.Sri Prakash Marine Exports, Bhimavaram and another …..Petitioners And: The Agricultural Market Committee, Bhimavaram And another. …..Respondents Crl.P.No.3552 of 2010 Between: M/s.Hari Priya Marine Food Exports, Bhimavaram And another …..Petitioners And: The Agricultural Market Committee, Bhimavaram And another. …..Respondents Crl.P.No.3553 of 2010 Between: M/s.Sri Chandrakanta Marine Food Exports, Bhimavaram And another …..Petitioners And: The Agricultural Market Committee, Bhimavaram And another. …..Respondents Crl.P.No.3568 of 2010 Between: M/s.Hari Priya Marine Food Exports, Bhimavaram And another …..Petitioners And: The Agricultural Market Committee, Bhimavaram And another. …..Respondents HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRL.PETITION NOs.3535, 3536, 3537, 3549, 3551, 3552, 3553, 3568 of 2010 COMMON ORDER: The petitioners in these 8 petitions are traders and licencees of Agricultural Market Committee, Bhimavaram. There is no dispute that they are liable to pay market fees to the 1st respondent-Market Committee. Subject matter in these 8 petitions relates to under- assessment of market fees payable by them during the year 1999-2000. After giving show cause notice under Section 12-B(5) of the Andhra Pradesh (Agricultural Produce and Live Stock) Markets Act (in short, the Act) balance of market fees payable by the petitioners was determined. For non payment of the said balance of market fees assessed under Section 12-B(5) of the Act, the 1st respondent Market Committee filed complaints before the II Additional Judicial Magistrate of the First Class, Bhimavaram alleging offence punishable under Section 23 of the Act. Questioning the said prosecutions, the licencees/accused filed these petitions under Section 482 Cr.P.C for quashing cases filed by the 1st respondent. 2) The amounts of balance of market fees payable after further assessment under Section 12-B(5) of the Act by the petitioners/accused in each case are as follows: 1) Crl.P.No.3535 of 2010 – Rs.8,97,145.00 2) Crl.P.No.3536 of 2010 – Rs.20,56,110.00 3) Crl.P.No.3537 of 2010 – Rs.6,63,897.00 4) Crl.P.No.3549 of 2010 – Rs.9,92,406.00 5) Crl.P.No.3551 of 2010 – Rs.12,14,052.00 6) Crl.P.No.3552 of 2010 – Rs.12,68,208.00 7) Crl.P.No.3553 of 2010 – Rs.2,60,568.00 8) Crl.P.No.3568 of 2010 – Rs.22,18,286.00 3) The only point urged by the petitioners’ counsel is that no prosecution lies for non-payment of market fees assessed under Section 12-B(5) of the Act and that prosecution for offence under Section 23 of the Act lies only in case of failure to pay market fees levied under Section 12(1) of the Act. At this stage, it would be apposit to refer to relevant sub Sections of Section 23 of the Act which read as follows: “23. Penalties – (1) Whoever contravenes the provisions of Section 7 or fails to pay the fees levied under sub section (1) of Section 12 shall, on conviction be punished with imprisonment for a term, which shall not be less than six months but which may extend to one year and with fine, which may extend to five thousand rupees, and in the case of a continuing contravention with further fine which may extend to five hundred rupees for every day during which the contravention is continued after conviction thereof; Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months. (2) Whenever any person is convicted of an offence under Section 7 or fails to pay the fees levied under sub section (1) of Section 12, the Magistrate shall, in addition to any fine which may be imposed recover summarily and pay over to the market committee the amount of the fees chargeable for the licence under Section 7 or the fees levied under sub section (1) of Section 12 as the case may be, and may in his discretion also recover summarily and pay over to the market committee such amount, if any, as he may fix as the cost of the prosecution”. 4) On the other hand, it is contended by the 1st respondent’s standing counsel that as per frame work of the Act, levy of market fees is made only under Section 12(1) of the Act and that there is no further levy of market fees under Section 12-B(5) of the Act and that Section 12- B(5) of the Act only prescribes procedure for assessment of market fees where for any reason the whole or any part of the turnover of the trader had escaped assessment to market fees or had been under assessed or assessed at a rate lower than the correct rate. Section 12(1) of the Act reads as follows: “12 Levy of fees by the market committee:- (1) The market committee shall levy fees on any notified agricultural produce, livestock or products of livestock purchased or sold in the notified market area at such rate, not exceeding two rupees as may be specified in the bye laws for every hundred rupees of the aggregate amount for which the notified agricultural produce, livestock or products of livestock is purchased or sold, whether for cash or deferred payment or other valuable consideration.” 5) Relevant provisions of Section 12-B of the Act read as follows: “12-B. Assessment of market fees: (1) - - - (2) - - - (3) - - - (4) - - - (5) Where, for any reason, the whole or any part of the turnover of a trader has escaped assessment to market fees or has been under assessed or assessed at a rate lower than the correct rate, the assessing authority may, at any time within a period of three years from the date on which any order of assessment was served on the trader, (a) determine to the best of its judgment the turnover that has escaped assessment and assess the turnover so determined ; (b) assess the correct amount of market fees payable on the turnover that has been under assessed ; (c) assess at the correct rate the turnover that has been assessed at a lower rate, after issuing a notice to the trader and after making such inquiry as it considers necessary. The assessing authority, in addition to the market fee so assessed, also direct the trader to pay a penalty equal to two times the market fees.” 6) Though the Act was passed in the year 1966 originally, Sections 12-A to 12-G of the Act were inserted by the amendment Act 4 of 1987. In the original Act of the year 1966 Sections 12 and 23 found their places; and no consequential amendments were made either to Section 12 or Section 23 of the Act either under or after the amendment Act 4 of 1987. Therefore, Section 23 remained as it was originally enacted in the year 1966 making failure to pay market fees levied under Section 12(1) of the Act punishable. Contention of the 1st respondent’s counsel that Section 12-B(5) of the Act is only a procedural provision, cannot be accepted. Section 12-B(5) of the Act empowers the assessing authority to make fresh assessment to market fees payable by the trader in case any part of the turnover escaped assessment to market fees or has been under assessed or assessed at a rate lower than correct rate. Section 12-B(5) of the Act is more a substantive provision than a procedural provision. Substantive power of assessment of market fees is conferred on the assessing authority under Section 12-B(5) of the Act, which market fees assessed thereunder is to be paid by the trader subject to right of appeal under Section 12-E of the Act. 7) The petitioners’ counsel placed reliance on B.Youdhister V. The Secretary, Agricultural Market Committee, Jogipet[1] of this Court wherein it was held as follows: “After introduction of Sections 12a, 12b and 12c of the Act there is no corresponding amendment to Section 23 of the Act extending penalisation for the violation of Sections 12a, 12b and 12c as an offence. Therefore, once the violation of Sections 12a, 12b and 12c is not made penal, there cannot be any prosecution for their violation. As per Art. 20 (1) of the Constitution of India not person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence. Though there is violation of the provisions covered by Sections 12a, 12b and 12c still since there is no corresponding penal provision for such violations by means of an amendment or insertion of a penal provision in the Market Act, the accused cannot be prosecuted before the Criminal Court for such violations.” 8) Even though lacuna in the Act subsequent to its amendment in the year 1987 was pointed out by this Court in the above reported decision, till now the State Government did not choose to make appropriate further amendments to the Act. It is high time for the State Government to consider amending Section 12(1) of the Act by introducing a deeming provision to the effect that any further assessment of market fees made under Section 12-B(5) of the Act is deemed to be levied under Section 12(1) of the Act, or alternatively Section 23 of the Act may be amended by including non payment of market fees further assessed under Section 12-B(5) of the Act is also punishable thereunder. Without making such amendments to the Act, the Market Committees in the State cannot invoke to Section 23 of the Act for prosecuting traders for non payment of market fees further assessed under Section 12-B(5) of the Act. 9) In the result, all these 8 criminal petitions are allowed quashing proceedings in S.T.C. No.41 of 2008, S.T.C. No.42 of 2008, S.T.C.No.55 of 2008, S.T.C. No.64 of 2008, S.T.C. No.68 of 2008, S.T.C. No.61 of 2008, S.T.C. No.68 of 2008 and S.T.C. No.58 of 2008 on the file of II Additional Judicial Magistrate of the First Class, Bhimavaram. However, the 1st respondent is at liberty to recover the amounts assessed under Section 12-B(5) of the Act as arrears of land revenue; and to prosecute traders in case of non-payment of market fees originally levied under Section 12(1) of the Act. ________________________________ SAMUDRALA GOVINDA RAJULU,J. April 21, 2010 Note: L.R. Copy to be marked (B/o) KSH [1] 1990(3) ALT 31