Madras High Court
Kannan vs The Supervisor on 7 March, 2006
Author: P.Jyothimani
Bench: P.Jyothimani
BEFORE THE MADURAI BENCH OF THE MADRAS HIGH COURT DATED: 07/03/2006 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.Nos. 3440 of 2005 W.P.Nos. 3441 to 3444, 3448 to 3451,3453 to 3457, 3472 to 3478, 2687, 2688, 1294 to 1298, 1299 to 1303, 1309 to 1313, 1304 to 1308, 1314 to 1318 and 3106 to 3112 of 2005 and W.P.M.P.Nos.3582,3584,3586,3588,3590,3594,3596,3598,3600, 3604,3606,3608,3610,3612,3630,3632,3634,3636,3638,3640,3642,2734,2732,1261,1263, 1265,1267,1269,1271,1273,1275,1277,1279,1291,1293,1295,1297,1299,1281,1283,1285, 1287 and 1289 of 2005 and W.V.M.P.Nos.204 to 208,209 to 213, 194 to 198,192,193,214 and 216 of 2005 Kannan ... Petitioner in W.P.No.3440 of 2005 A.P.Anandan ... Petitioner in W.P.No.3441 &3442 of 2005 S.Mary Vellaiammal ... Petitioner in W.P.No.3443 of 2005 K.Sankareswaran ... Petitioner in W.P.No.3444 of 2005 P.Mallika ... Petitioner in W.P.No.3448 of 2005 J.Ganesan ... Petitioner in W.P.No.3449 of 2005 A.Rajendran ... Petitioner in W.P.No.3450 of 2005 C.Chinnasamy ... Petitioner in W.P.No.3451 of 2005 A.K.Ganesan ... Petitioner in W.P.No.3453 of 2005 A.K.Soundarapandian ... Petitioner in W.P.No.3454 of 2005 R.Gunasekaran ... Petitioner in W.P.No.3455 of 2005 P.A.R.Dheenathayalan ... Petitioner in W.P.No.3456 of 2005 S.Sundarapandian ... Petitioner in W.P.No.3457 of 2005 E.S.P.R.Vivekanandan ... Petitioner in W.P.No.3472 of 2005 C.Selvakumar ... Petitioner in W.P.No.3473 of 2005 M.S.Jeyaprakash ... Petitioner in W.P.No.3474 of 2005 M.Ramkumar ... Petitioner in W.P.No.3475 of 2005 R.Kanagasivam ... Petitioner in W.P.No.3476 of 2005 C.Chinnasamy ... Petitioner in W.P.No.3477 of 2005 T.Baskaran ... Petitioner in W.P.No.3478 of 2005 T.S.D.Rajendran ... Petitioner in W.P.No.2687 of 2005 M.Sermakani ... Petitioner in W.P.No.2688 of 2005 S.Chidambaranathan ... Petitioner in W.P.No.1294 of 2005 G.MuthuManickam ... Petitioner in W.P.No.1295 of 2005 E.S.P.R.Pandiarajan ... Petitioner in W.P.No.1296 of 2005 R.Vivekandandam ... Petitioner in W.P.No.1297 of 2005 N.Malliga ... Petitioner in W.P.No.1298 of 2005 A.Rajendran ... Petitioner in W.P.No.1299 of 2005 D.Vijayan ... Petitioner in W.P.No.1300 of 2005 V.Mallika ... Petitioner in W.P.No.1301 of 2005 S.Victory ... Petitioner in W.P.No.1302 of 2005 M.Asaithambi ... Petitioner in W.P.No.1303 of 2005 R.Santhiya ... Petitioner in W.P.No.1309 of 2005 A.Chandrasekaran ... Petitioner in W.P.No.1310 of 2005 A.P.D.Neethimani ... Petitioner in W.P.No.1311 of 2005 C.Selvakumar ... Petitioner in W.P.No.1312 of 2005 A.Chandrasekaran ... Petitioner in W.P.No.1313 of 2005 P.Selvakumar ... Petitioner in W.P.No.1304 of 2005 R.Palanivelrajan ... Petitioner in W.P.No.1305 of 2005 K.Murugesan ... Petitioner in W.P.No.1306 of 2005 K.Uma ... Petitioner in W.P.No.1307 of 2005 T.Nagendran ... Petitioner in W.P.No.1308 of 2005 S.V.Rajasekaran ... Petitioner in W.P.No.1314 of 2005 A.P.T.Raveendran ... Petitioner in W.P.No.1315 of 2005 K.K.Chandrasekaran ... Petitioner in W.P.No.1316 of 2005 A.Chandran ... Petitioner in W.P.No.1317 of 2005 K.C.Sureshkumar ... Petitioner in W.P.No.1318 of 2005 M.Megavarnan ... Petitioner in W.P.No.3106 of 2005 S.Ramraj ... Petitioner in W.P.No.3107 of 2005 D.Rajesekaran ... Petitioner in W.P.No.3108 of 2005 M.G.Rajendran ... Petitioner in W.P.No.3109 of 2005 Mr.R.Ramamoorthy ... Petitioner in W.P.No.3110 of 2005 R.Rajagopal ... Petitioner in W.P.No.3111 of 2005 R.Prabhakaran ... Petitioner in W.P.No.3112 of 2005 Vs. The Supervisor, Regulated Market Committed, No.16A, Kulamangalam Road, Sellur, Madurai - 625 002. ... Respondent in all the writ petitions COMMON PRAYER: Writ Petitions filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari, to call for the records on the file of the learned Judicial Magistrate No-4, No.I, Madurai pertaining to the criminal prosecution in S.T.C.No.89/2003,97/2003,94/2003,91/2003,90/2003,697/2002,725/2002,729/2002,88/2 003,86/2003,95/2003,98/2003,87/2003,99/2003,728/2002,730/2002,5/2003,757/2002,76 3/2002,96/2003,743/2002,735/2002,714/2002,713/2002,705/2002,706/2002,710/2002,75 0/2002,753/2002,752/2002,751/2002,754/2002,726/2002,733/2002,727/2002,740/2002,7 32/2002,760/2002,6/2003,762/2002,8/2003,7/2003,741/2002,745/2002,748/2002,742/20 02,749/2002,702/2002,747/2002,734/2002,746/2002,707/2002,761/2002,708/2002 filed against the petitioners and to quash the same. !For Petitioners ... Mr.S.Nagamuthu ^For Respondent ... Mrs.Ambujam Selvarani, Special Government Pleader. :ORDER
Heard the learned counsel appearing for the petitioner and the learned counsel for the respondents appearing for the respondents.
2. These writ petitions are challenging the various criminal prosecutions pending in STC.No.89 of 2003 etc., batch on the file of the learned Judicial Magistrate, No.4, No.1, No.2, Madurai, respectively.
3. The writ petitioner in each of the cases that they are the licensee under the provisions of the Tamil Nadu Agriculture Produce Marketing (Regulation) Act,1987 and they were issued with licence under Section 8 of the said Act for buying and selling the notified agricultural produce under the Act. Under Section 24(1) of the said Act Market Committee is established which is competent to levy fees on any agricultural produce bought or sold in the notified market area at the rate not less than one rupee but not exceeding two rupees for every hundred rupees of the aggregate amount for which the notified agricultural produce is bought or sold whether for cash or for deferred payment. The said section further contemplates that the payment of the fees shall be made by the purchaser of the notified agricultural produce is concerned and in cases where the notified agricultural produce cannot be identified, the fee shall be paid by the seller.
4. As per the rules framed under the Tamil Nadu Agricultural Produce Marketing (Regulation) Rules 1991, the licensee has a legal obligation to sent a monthly return as per Section 8(9) of the Act relating to the produce or sale of every notified agricultural produce so as to reach the head of market on or before the 10th day of succeeding month in a prescribed form. In cases where a person evades the payment of any fees liable under the Act when demanded by the Officer or servant of the Marketing Committee be punishable with a fine which shall be not less than Rs.500 and may be extended upto Rs.2,500/- under Section 58 of the Act. The learned Judicial Magistrate has jurisdiction of taking cognizance of such act on a complaint in writing made by the Director or any officer empowered by him by a special order.
5. According to the petitioners they have been regularly submitting their returns in respect of purchase of agricultural produce made within the notified market area. As per the Act and rules any purchase on the first point of instance in the notified market area would be subjected to levy and further the fees shall not be payable more than once on the same notified agricultural produce. Therefore the purchase of agricultural produce bought from the notified area and outside the State cannot be subject to levy under the provisions of the Act. Therefore, according to the petitioners the entire Act relates to the levy of fees from the agricultural produce purchased within the notified area and does not contemplate any levy for purchase that have been brought into the notified area after completing the purchase outside the state.
6. All these matters have been squarely explained in the required returns submitted by the petitioners especially relating to the purchase made by the petitioners in respect of purchase within the notified area. According to the petitioners, there is no requirement for submitting returns in respect of agricultural produce purchased outside the state as they do not suffer any levy under the provisions of the Act. Apart from that there was no provisions also.
7. On the wrong premise that even agricultural produce purchased outside the state is liable for levy, the respondent filed complaints before the Judicial Magistrate, Madurai under Section 200 Cr.P.C. alleging that the petitioners have violated Section 8(9) of the Tamil Nadu Agriculture Produce Marketing (Regulation) Act, 1987. Even though the petitioners have filed a petition for discharging under Section 258 Cr.P.C before the Judicial Magistrate, in view of the judgment of the Supreme Court no discharge petition can be entertained if the offence relates to summary trial case. By virtue of the provision of Section 27(2) of the said Act which in effect states that the validity of any levy and collection of fees shall not be questioned in any criminal Court, the petitioners are unable to file any application under Section 482 of the Cr.P.C. Therefore, the petitioners are constrained to file this batch of writ petitions under Article 226 of the Constitution of India.
8. According to the learned counsel for the petitioners, the complaints are brought by limitation under Section 482 of the Cr.P.C. since the complaint is filed beyond the period of limitation namely the period of 6 months since the Act contemplated only a fine. According to the learned counsel for the petitioners a trader under the said Act is to submit returns under Section 8(9) on or before 10th day of succeeding month in Form No.9. Therefore, according to the learned counsel for the petitioners the cognizance of offence for the purpose of limitation commences from the 10th day of succeeding month whereas the complaint shows that for the purchase and sales stated to have been made from 01.04.1998 till date the prosecution is launched which is clearly outside the purview of the limitation contemplated under Section 468 of the Cr.P.C. According to the learned counsel for the petitioners, it cannot be stated as a continuing offence for filing of return and the obligation comes to an end every month.
9. The further contention of the learned counsel for the petitioner is that under Section 58 of the Tamil Nadu Agriculture Produce Marketing (Regulation) Act, 1987, it is specifically stipulated that no court shall take cognizance of any offence under the Act except on a complaint in writing made by the Director or any Officer empowered by him in this behalf by a special order. According to him, the officer empowered was one Mr.Nagoor, the then Supervisor of the Marketing Committee whereas the complaint has been filed by one S.Pandiaraj who is the present supervisor and has not been empowered as per the said section and on that ground also the complaint has to go.
10. The learned counsel further submitted that even assuming that the said Mr.S.Pandiaraj is empowered, as it is seen in each of the complaints sanction is received from the Commissioner of Agricultural Marketing and Agricultural Business, Chennai in the letter dated 9.11.1999 to prosecute the defaulters. Section 58(2) contemplates a complaint in writing by Director or any officer empowered by him on his behalf by special order, therefore the section makes very clear that the complainant must be either the Director or any person empowered by the Director by special order.
11. The term Director has been defined under Section 2(8) of the Act to mean a Director of Agricultural Marketing Tamil Nadu and includes any other person or authority authorised by the Government, by notification to perform any of the functions of Director under this Act for such area as may be specified in the notification. According to the learned counsel for the petitioners there was no notification empowering the Commissioner to act as a Director under Section 2(8) of the Act. Therefore, according to the learned counsel, the prosecution is vitiated for want of jurisdiction.
12. The learned counsel would submit that as per section 24(2) of the said Act, the fees levied under Section 24(1) on any notified agricultural produce bought or sold in the notified market area shall be paid by the purchaser of the notified agricultural produce concerned. Section 8(3) of the Act which contains an explanation states that for the purpose of the sub Section (3) of Section 8 which contemplates that no person after the date to be notified by the Government, purchase or sell any notified agricultural produce in any notified area outside the market in that area. The said sub section contains an explanation which states that the purchase or sale prescribed in the said sub section means the purchase or sale in the first point of the notified market area. According to the learned counsel for the petitioners all the purchases made by the petitioners outside the market area. The learned counsel also state that even very complaint would show that it refers about the sale and purchase made within and outside the state of Tamil Nadu. Inasmuch as the purchase made within the notified area, the petitioners have already submitted their returns. According to the learned counsel for the petitioners, there was no need or legal compulsion on the part of the petitioners to file return in respect of the purchases made outside the State of Tamil Nadu as per Section 24(2) of the Act.
13. In such circumstances, when the law contemplates that the levy of market fees only in respect of the purchase made within the notified market area, there is absolutely no necessity for the petitioner to submit their return in respect of the purchase made by them outside the market area and submission of returns in those circumstance does not arise. To substantiate his contention, the learned counsel would rely upon the Division Bench of this Court rendered in South Arcot Market Committee, Cuddalore by its Secretary and another Vs. The South Arcot District Co-operative Spinning Mills Ltd., reported in 1992 1 M.L.J-
202. In that case, the Division Bench has dealt with the previous Act namely, Tamil Nadu Agriculture Produce Markets Act, 1959 Section 18(1), which corresponds to Section 8(1) of the new Act. While dealing with the situation that the respondents in that case have been dealing in purchase of cotton produce in the state as well as from outside the state, the Division Bench has held that when once it is found that the sale completed outside the state of Tamil Nadu, it should be inevitably follow that the fees cannot be levied under Section 18(1) of the Act(old) and the rules made thereunder.
14. Therefore, according to the learned counsel for the petitioners placing reliance upon the said judgment imposing levy in respect of the sale effected outside the state by the petitioner cannot be within the purview of the Act at all with the result the prosecution becomes on the face of it unsustainable.
15. In respect of his contention regarding the period of limitation the learned counsel would rely upon the judgment of the Supreme Court rendered in State of Bihar Vs. Deokaran Nenshi and another reported in AIR 1973-SC 908 to show that when once the filing of return every month is complete it is on the last day namely the 10th day of every succeeding month the prosecution could be launched within a six months time. According to the learned counsel placing reliance on the said judgment, in the present case also it can never be said that it is a continuing offence. That was the case relating to the prosecution launched under the Mines Act 1952 wherein also it was in respect of furnishing of returns on or before January 21 of the succeeding year.
16. The learned counsel would rely upon another judgment of the Supreme Court rendered in Bhagirath Kanoria and others Vs. State of M.P. reported in 1984 SCC (Criminal) 590. In that case also the Supreme Court while dealing with the similar circumstances under the Employees Provident Fund and Miscellaneous Provisions Act, 1952, after referring to the judgment in State of Bihar Vs. Deokaran Nenshi and another reported in AIR 1973- SC 908 stated above, holding that the continuing offence is one which continues and non-continuing is one which is committed once and for all. After explaining the various illustrative cases, the Supreme Court, in that case has held that the failure to furnish returns before the due date is not a continuing offence and it must be treated as cases of failure to furnish returns.
17. The learned counsel would rely upon the judgment of this Court rendered in C.K.Ranganathan, Managing Director, CavinKare Limited, Cuddalore Vs. Registrar of Companies, reported in 2002 (1) CTC 321. In that case, while dealing with section 211(2) of the Companies Act which imposes an obligation on every Company to submit Profit and Loss Account wherein also a criminal prosecution was launched. This Court has held that it cannot be said that the offence of not submitting of the Profit and Loss Account can be stated to continue until the requirement is complied with. In that view the offence under Section 211(7) of the Act was held to be not a continuing offence and therefore there is a period of limitation for taking such cognizance offence.
18. The learned counsel further would rely upon the judgment of this Court which was in the previous Act, Tamil Nadu Agriculture Produce Markets Act, 1959 rendered in Kannan Chettiar Vs. Tiruchirapalli Market Committee by the Superintendent, Tiruchirapalli Market Committee, Tiruchirapalli, reported in 1988 L.W (Criminal) 92. This court while referring various judgments of the Supreme Court as stated above including judgment in State of Bihar Vs. Deokaran Nenshi and another reported in AIR 1973-SC 908 has ultimately held that simply because Section 25(b) of the Act states that if there is a continuation of evasion or contravention there will be further fine which may extend to one hundred rupees for everyday during which the evasion or contravention is continued after conviction however holding that it is a continuing offence.
19. It is a continuing offence but the Court has to decide for which offence, the penalty should be imposed and not continuous. The learned counsel would submit that under the present Act of Tamil Nadu Agriculture Produce Marketing (Regulation) Act,1987 also Section 48(1)(b) which contemplates the similar provision and therefore, the judgment of this Court squarely applies and on that basis, it has to be taken that it is a continuous offence.
20. When the question is put as to how the writ petition under Article 226 of the Constitution of India is maintainable when a remedy is available elsewhere especially under Section 482 Cr.P.C., the learned counsel for the petitioner would rely upon the Section 27 of the Tamil Nadu Agriculture Produce Marketing (Regulation) Act, 1987. The said section 27(2) says that any assessment or levy under the said Act shall not be questioned in any criminal Court in any prosecution or other proceeding under the Act. According to him, as per section 76 of the Cr.P.C while classifying the class of criminal courts, it includes the High Court apart from courts of Session, Judicial Magistrate of first class and second class etc., Therefore, according to the learned counsel by virtue of Section 27(2) such levy cannot be questioned in any criminal Court which includes High Court under Section 482 of the Cr. P.C. which confers inherent power to the High Court. In view of the same, according to the learned counsel the writ petition is maintainable.
21. The learned counsel placing reliance upon the judgment of the Supreme Court State of Hariyana and others Vs. Bhajan Lal and others reported in 1992 Supreme Court Cases (Criminal)426 for the purpose of illustrating the extraordinary powers of the High Court under Article 226 of the constitution of India and the inherent powers under Section 482 of the code of Criminal Procedure. He also would rely upon the subsequent judgment of the Supreme Court in Mahavir Prashad Gupta and another Vs. State of National Capital Territory of Delhi and others reported in 2000 Supreme Court Cases (criminal) 1453, wherein, the Supreme Court placing reliance, the State of Hariyana and others Vs. Bhajan Lal and others reported in 1992 Supreme Court Cases (Criminal)426 has also categorised in Paragraph 6 as an illustration to show that where there is an express legal bar engrafted in any of the provisions of the code or the concerned Act(under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is no specific provision in the code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party, Article 226 can be invoked.
22. Therefore, according to the learned counsel for the petitioners, Tamil Nadu Agriculture Produce Marketing (Regulation) Act, 1987 provides for a penalty for non submitting of the returns and there are no efficacious remedy available under the said Act and the said Act also prohibits expressly any criminal Court proceeding with such cases, to decide about the validity of levy in the teeth of the definition of criminal Court under the code of Criminal Procedure and contended that the only remedy available is under Article 226 of the Constitution of India.
23. On the other hand, the respondent who has filed counter stating that the petitioners herein individually or through association have filed the writ petitions questioning the validity of the various provisions of the Tamil Nadu Agriculture Produce Marketing (Regulation) Act, 1987 and ultimately the validity has been upheld by the Division Bench of this Court. According to the respondent filing of the writ petition is only dilatory tactics, since the matter has already been concluded by the Division Bench of this Court. It is having failed in attempting to invalidate the act, the present writ petitions are filed.
24. According to the respondent the Commissioner has power to issue order to his subordinate Mr.Nagoor and the sanction is well within the powers under Section 58(2) of the Act. Under the said Act for the sale of Dhal which takes place within the notified market area, it will be considered as a first sale for which market fee is levied as per Rule 33(4) and the levy of fees shall not be payable more than once. It is wrong to state that when the petitioners purchases made outside the state of Tamil Nadu has already suffered market fee prevailing in the said area. Since the Act is applicable only in the State of Tamil Nadu, the fees suffered outside the State of Tamil Nadu is not a concern. The respondent is regularly entitled to demand the petitioner to submit the monthly returns relating to his transaction made outside or inside the State as per Section 8(9) read with rule 32(1). The petitioners have failed to submit monthly returns together from 01.04.1998 onwards and therefore it is deemed to be continued act of offence and not barred by limitation.
25. The respondent also would rely upon same judgments of this Court reported in 1992 law weekly (criminal) 343 to show that this Court has held that non submission of return will be deemed to be a continued offence. The respondent would also rely upon another judgment of this Court reported in 1988 law weekly (Criminal) 92 to substantiate their defence.
26. Mrs. Ambujam Selvarani, learned special Government Pleader, in addition to the averments made in the counter affidavit would submit that the non filing of returns by the petitioners is a continuing offence.
27. She also would submit that under Section 2 (8) of the Act in the definition includes and any person who is authorised by the Government. She would state that the Commissioner of Agricultural Marketing Mr. C.V.Sankar who is an I.A.S. Officer and he will be deemed to be a Director with authority to perform the functions of the Director. However, she could not convince this Court with proper documents to show that there was any specific authorisation by notification as required under Section 2(8) of the Act.
28. She would also contend that as per Section 8(9) of the Act every licensee is liable to submit periodical returns his business transactions and the return is submitted in Form No.9 as per rule 32 and the said return is a monthly return. The non submission of the said returns can only be deemed as a continuing offence, since the law contemplates the conduct of the licensee for every month continuously.
29. She would also contend that the proviso to Section 24(1) of the Act would state that every agricultural produce bought into any notified area for the purpose of processing or export is not processed or exported therefrom within 30 days from the date of its arrival, is presumed to have been brought into such notified market area for buying and selling unless contrary is proved. Therefore, according to the learned Special Government Pleader, even assuming that the products were produced in the notified market area, if it is kept within the market area for more than 30 days, there is a presumption that it is brought into notified area and therefore the obligation even in respect of purchase made outside the market area contemplates obligation of submitting the returns.
30. According to her, the Form No.9 as contemplated under Rule 32 as filed by all traders whereas the present the petitioners have filed Form.13 as per Rule 33(3) of and filing of such form No.13 is a self imposed one on the part of the traders like the petitioners,
31. To substantiate her contentions that the non filing of returns is a continuous offence, the learned Special government Pleader would rely upon the judgment of this Court rendered in The Superintendent, Regulated Market, Krishnagiri Vs. M/s.A.M.S & Co., and another reported in 1992 Law Weekly (criminal) 344. In that case, while dealing with the previous Act namely the Tamil Nadu Agriculture Produce Markets Act, 1959 this Court has held as per Section 18,25 and 28 and 51A of the rules, the failure to pay fees levied by the Market Committee it continues so long as remains unpaid and it is a continuing offence.
32. The learned Special Government Pleader would also rely upon another judgment of this Court reported in 88 Law Weekly (criminal) 92 for the same proposition. Learned Special Government Pleader would state that authority given to the previous Supervisor Mr.Nagoor was not in his individual name and as Supervisor and in his place Mr.S.Pandiaraj was joined as in charge. Therefore, the complaint is valid in law. According to her there has been a heavy loss due to the conduct of the petitioners and more than one crore of payment of cess is due.
33. Mr.Nagamuthu, learned counsel for the petitioners by way of reply, relies upon the judgment of the Supreme Court held in Harbanslal Sahnia and another Vs. Indian Oil Corporation Ltd., and others reported in 2003 (1) CTC
189. In that case, the supreme court has held that in spite of availability of alternative remedy, atleast in three cases namely i)where the writ petition seeks enforcement of any fundamental right ii) where there is a failure of Principles of natural justice iii) where orders or proceedings are wholly without jurisdiction or vires of the Act is challenged, the High Courts may exercise the writ jurisdiction. According to the learned counsel,the case on hand is clearly covered under the third category. He would also rely upon another judgment of the Supreme Court in Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others reported in 1998 (8) SCC which was also referred by the Supreme Court 2003 (1) CTC 189 (SC).
34. The contention of the petitioners is that the cognizance of offence under Section 58(2) itself is without jurisdiction and not authorised inasmuch as the person who is competent to make such complaint has not preferred the same.
35. The learned counsel would also rely upon the list of traders as prepared by the Commissioner himself in his proceedings dated 9.11.1999 wherein it is stated that the period of default is from 01.04.1998 till the date of the said proceedings viz., 9.11.999 and the prosecution is launched stating that the period is upto December 2002. The learned counsel would submit that on legal ground even if the complaints are quashed there is absolutely no bar for the respondent to prefer fresh complaint and therefore there is no question of loss to any one.
36. On the face of the records, the issue which culminates for decision of this Court is as to whether the complaint filed by the respondent against the petitioners under Section 200 Cr.P.C for violation of Section 8(9) read with 48(1)(b) of the Tamil Nadu Agriculture Produce Marketing (Regulation) Act, 1987 is maintainable in law or not. Eventhough, the learned counsel for the petitioners as also the Special Government Pleader have made various submissions in respect of the validity or otherwise of such complaint, I proceed to take at the threshold, the maintainability of writ petition under Article 226 of the Constitution of India.
37. As I stated earlier, in all these cases, criminal prosecutions have been launched for the failure of submitting returns every month. It is also admitted that the return ought to be submitted every month on or before 10th day of every succeeding month. It is also admitted that it is in respect of the failure to submit the monthly periodical returns from 01.04.1998 to till date of the filing of complaint in respect of each traders for the whole period the single complaint has been launched. When it is a criminal prosecution which is under the code of criminal procedure, the question that remains to be answered in respect of the maintainability of the writ petition is as to whether the petitioners have any alternative remedy. Normally, in these cases, the alternative remedy is powers of the High Court under Section 482 of Cr.P.C. which are inherent powers. However, as pointed out by the learned counsel for the petitioners, by virtue of Section 27(2) of the Tamil Nadu Agricultural Produce Marketing (Regulation) Act 1987, the petitioners are unable to move the High Court under Section 482 Cr.P.C. In this regard, it is relevant to extract the Section 27(2) of the Act which runs as follows:
"The validity of the levy or collection of any fee or other amount made under this Act or the liability of any person to any fee or other amount so assessed or levied shall not be questioned in any criminal Court in any prosecution or other proceeding whether under this Act or otherwise."
38. A reading of the section 27(2) would show that in respect of levy or collection of fees or liability of any person in respect of the same shall not be questioned in any criminal Court in any prosecution or other proceedings whether under the Act or otherwise.
39. The term Criminal Court are classified under Section 6 of the code of Criminal Procedure. The said Section which states as follows:
"Classes of Criminal Courts:- Besides the High Courts and the Courts constituted under any law, other than this Code, there shall be, in every state, the following classes of Criminal Courts, namely:-
i) Courts of Session
ii)Judicial Magistrate of the first class and, in any metropolitan area, Metropolitan Magistrate;
iii)Judicial Magistrate of the second class; and
iv)Executive Magistrates.
40. Therefore a combined reading of the Section 27(2) along with the classes of Criminal Courts enumerated under Section 6 of the Code of Criminal Procedure would show that in respect of deciding about the validity or otherwise of a conduct under the Tamil Nadu Agriculture Produce Marketing (Regulation) Act, 1987, the High Court should be deemed to be a Criminal Court,especially the said term is not defined or enumerated under the Act. In that view of the matter, learned counsel for the petitioners contention that the remedy may not be available to the petitioners under Section 482 Cr.P.C.is acceptable. Now turning round the Act itself, namely, Tamil Nadu Agriculture Produce Marketing (Regulation) Act, 1987 a reference to the Act would show that there is no effective remedy available under the Act itself. Infact, it is also relevant to point out that Section 55 of the said Act also prohibits filing of such or any other proceedings against the Market Committee or the Board for any act done or purported to be done under the said Act.
41. In such circumstances, I am of the view that the filing of the writ petitions under Article 226 of the Constitution of India cannot be barred. Therefore, I am inclined to go further by holding that the writ petitions are maintainable.
42. The next question that arises for consideration is as to whether there are any ground for this Court under Article 226 of the Constitution of India to interfere to set aside the private complaints filed by the respondents under the provisions of the Tamil Nadu Agriculture Produce Marketing (Regulation) Act, 1987. The said Act contemplates under Section 58 while speaking about the trial of offences as follows:
"58.Trial of offences:- (1) No offence made punishable by this Act or by any rule, regulation or by-law made under this Act shall be tried by any Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class.
(2) No Court shall take cognizance of any offence punishable under this Act except on a complaint in writing made by the Director or any Officer empowered by him in this behalf by special order."
43. Therefore, under Section 58(2) of the said Act to maintain any such complaint in respect of offence punishable under the Act, the courts are expected to take cognizance only after such complaints are made in writing by the Director or any officer empowered by the Director in this behalf by special order.
44. Now, turning to the definition of the word Director, Section 2(8) defined the term "Director" in the following manner:
"Director" means the Director of Agricultural Marketing, Tamil Nadu and includes any other person or authority authorised by the Government, by notification to perform any of the functions of Director under this Act for such area as may be specified in the notification."
45. Therefore, it is clear that to maintain a complaint under Section 58(2) of the Act, the complainant must be either the Director which means the Director of Agricultural Marketing Tamil Nadu and it includes also any other authority authorised by the Government, by notification to perform the functions of the Director.
46. In the present case, it is admitted by both the parties that one Mr. Nagoor was empowered by the Commissioner into file such complaints. The said Nagoor was the previous supervisor. However, the perusal of the complaint filed on behalf of the respondent would show that the complaint has been preferred by one S.Pandiyaraj, Supervisor, Regulated Market Committee, Madurai-2. Therefore, it is for the respondent to substantiate that said S.Pandiaraj was duly empowered by the Director, namely, the Director of Agricultural Marketing Tamil Nadu by special order, as the same is stipulated under Section 58(2) of the Act. In this regard, it is relevant to refer the contentions raised in the counter affidavit filed on behalf of the respondent. While admitting that S.Pandiaraj was not specifically empowered by the Director by a special order, the respondent has taken a stand that the Commissioner of Agricultural Marketing and Agricultural Business, Chennai by his proceedings dated 09.11.1999 has issued an order to one Mr.Nagoor, Supervisor, Regulated Market Committee to prosecute and therefore, according to the respondents the said sanction should be taken as empowerment given by the Director, not to Mr.Nagoor in his individual capacity but as supervisor of Regulated Market Committee. Therefore, the subsequent Supervisor S.Pandiaraj is entitled to prosecute. The relevant passages in the counter affidavit runs as follows:
"But the allegations made out by the petitioner that only Mr.Nagoor who was then Supervisor, Regulated Market Committee, Madurai was given power by the Commissioner, Agricultural Marketing and the present complaint prosecuted by Mr.Pandiyaraj who is the present Supervisor, Regulated Market Committee, Madurai, has no power to prosecute the case is not correct. Rule 58(2) of the said Act Commissioner has power and accordingly through his proceedings No.MCS.5/29043/99, dated 09.11.1999 issued orders to his sub-ordinate one Mr.Nagoor, Supervisor, Marketing Committee to prosecute. As a matter of fact the sanction given by the Commissioner is not in the name of individual capacity but in the name of post i.e. Supervisor, Regulated Market, Madurai. In addition Supervisor Marketing Committee was given sanction to prosecute, hence whether one Mr.Nagoor was in that post is immaterial and only the question to be looked into is that whether supervisor has initiate prosecution or not. The sanction is given to the post i.e. Supervisor, Regulated Market Committee, Madurai, and not in person in his individual capacity."
47. A reference to the sanction order given for prosecuting in these cases dated 9.11.1999 would show that the said sanction orders are given by the Commissioner of Agricultural Marketing and Agricultural Business, Chennai-6. Apart from the fact that it is not explained as to how he could be termed as a Director under Section 58(2) of the Act either by producing any notification issued by the Government empowering the Commissioner to function as a Director for the purpose of the Act, even a reading of the sanction order by the Commissioner himself shows that the empowerment was given to Supervisor, Nagoor to prosecute under Section 58(2) of the Act.
48. As I stated above, there is no notification issued by the Government, produced before this Court authorising the Commissioner to act as a Director under the Act. A reading of the complaint also would only show that the sanction is received from the Commissioner of Agricultural Marketing and Agricultural Business, Chennai-6 on 09.11.1999 to prosecute the defaulters and stating that even, that sanction is transferred to S.Pandiyaraj to the post who is holding namely, Supervisor. Apart from that it is admitted that there is no special order issued by the Director empowering S.Pandiaraj to prosecute the defaulters.
49. Section 58(2) of the Act in clear terms makes it that the Criminal Court can take cognizance of any offence punishable under the Act only if a complaint in writing is made by the Director or by an Officer empowered by the Director by special order. Apart from the fact that there is no special order shown, by which, the Director has empowered either Nagoor or S.Pandiaraj to prosecute the defaulters, the stand taken by the respondent that the sanction order given by the Commissioner to Mr.Nagoor was only relating to his post as a Supervisor and inasmuch as S.Pandiaraj has succeeded as a Supervisor, he has jurisdiction to make complaint. On the face of it, when the law specifically contemplates that either the Director or a person empowered by him alone can initiate the complaint, except stating that the Commissioner is also deemed to be a Director and previous Supervisor Mr.Nagoor deemed to be subsequent supervisor S.Pandiaraj, no effective step has been taken on the side of the respondent to prove before this Court.
50. Therefore, in my considered view, the complaints on the face of them are not in accordance with Section 58(2) of the Tamil Nadu Agricultural Produce Marketing (Regulation) Act, 1987 and on this score itself the writ petitions are liable to be allowed.
51. I am of the view that the complaint is not in accordance with the provisions of the Act, and therefore, it is not necessary for me to go into the further contentions raised by both the learned counsels. However, since it raises some more interesting points of law, I propose to deal with the said points also.
52. The question that is raised as a next issued is as to whether the Act contemplates the non filing of return as a continuing offence or not. As I have stated earlier, Mr.S.Nagamuthu, learned counsel for the petitioners relied upon the judgment of the Supreme Court reported in AIR 1973 SCC 908 namely, the State of Bihar Vs. Deokaran Nenshi and another, to substantiate his case that the failure to furnish returns for a particular period would not amount to a continuing offence. He has also relied upon the subsequent judgment of the Supreme Court in Bhagirath Kanaria and others Vs. State of M.P. reported in 1984 SCC (Criminal) 590 wherein also, while construing the provision of Section 14(2A) of the Employees Provident Fund Miscellaneous Provisions Act,1952, the Supreme Court has referred to the above judgment however holding that the non payment of employer's contribution to the Provident Fund before the due date is a continuing offence and therefore, the period of limitation prescribed by Section 468 code of criminal procedure cannot have any application. The Supreme Court in unequivocal terms states as follows at page 597:
"19. The question whether a particular offence is a continuing offence must necessarily depend upon the language of the statute which creates that offence, the nature of the offence and, above all, the purpose which is intended to be achieved by constituting the particular act as an offence. Turning to the matters before us, the offence of which the appellants are charged is the failure to pay the employer's contribution before the due date. Considering the object and purpose of this provision, which is to ensure the welfare of workers, we find it impossible to hold that the offence is not a continuing nature. The appellants were unquestionably liable to pay their contribution to the Provident Fund before the due date and it was within power their to pay it as soon after the due date had expired as they willed. The late payment could not have absolved them of their original guilt but it would have snapped the recurrence. Each day that they failed to comply with the obligation to pay their contribution to the Fund, they committed a fresh offence. It is putting an incredible premium on lack of concern for the welfare of workers to hold that the employer who has not paid his contribution or the contribution of the employees to the Provident Fund can successfully evade the penal consequences of his act by pleading the law of limitation. Such offences must be regarded as continuing offences to which the law of limitation cannot apply."
53. The reference made to another judgment of this Court in C.K.Ranganathan, Managing Director, CavinKare Limited, Cuddalore Vs. Registrar of Companies, reported in 2002 (1) CTC 321, by C.Nagappan.J again arose in different circumstance namely 211(7) of the Companies Act, which mandates every company to submit the profit and loss account. While, dealing with the said Section 211(7) of the Companies Act which does not lay down that a person concerned would be guilty of an offence if he continues to carry on without compliance or that the offence continues until requirement is complied with and this Court correctly came to the conclusion that there was no obligation under the said provisions to secure compliance continues from day to day until the compliance is actually met nor does it provide that continuance of business without securing compliance becomes a continuing offence. In those circumstances, this Court has held that the in the absence of specific provision it cannot be construed as a continuing offence.
54. On the other hand, in the present case, as I have already extracted earlier, Section 48(1)(b) by in categorical terms lays down that in case of a continuing evasion or contravention, the defaulter will be liable for a further fine which may be extended to five hundred rupees every day during which the evasion or contravention is continued. In this regard, it is relevant to point out the observation of Honourable Supreme Court in the above judgment in 1984 SCC(Criminal) 590. Stating that whether a particular offence is continuing offence or not necessarily depends upon the language of the statutes which create that offence. Therefore, unless Section 211(7) of the Companies Act, Section 48(1)(b) of the Tamil Nadu Agriculture Produce Marketing (Regulation) Act,1987 specifically makes offence as a continuing offence or in otherwise holding that till the act is complied with the offence is deemed to continue. Eventhough, the obligation of submitting returns may be every month which has to be completed by 10th of every succeeding month, and every month the obligation arises,apart from continuation the non compliance of the previous months and therefore, in those circumstances, in my considered view, the application of Section 468 of the Code of Criminal Procedure for the period of limitation does not arise.
55. In this regard, it is relevant to point out, the judgments of this Court wherein the Tamil Nadu Agriculture Produce Markets Act,1959, namely the previous Act relating to Section 25(b) and Rule 51A was considered. The said Section 25(b) in pari materia corresponds to Section 48(1)(b) of the present Tamil Nadu Agriculture Produce Marketing (Regulation) Act,1987. That was the case rendered by this Court in Kannan Chettiar Vs. Tiruchirapalli Market Committee by the Superintendent, Tiruchirapalli Market Committee, Tiruchirapalli reported in 1988 L.W (Criminal) 92. Since in that judgment, the provisions of the previous Act was considered, it is relevant to extract the said Section namely, Section 25 of the Tamil Nadu Agriculture Produce Markets Act,1959.
"S.25 Penalties: Any person who (a) fraudulently evades the payment of any fee or other amount due from him under this act or the rules or by-laws made thereunder, or,
b) wilfully acts in contravention of the provisions of this Act, shall be liable to fine which may extend to five hundred rupees, and in the case of a continuing evasion or contravention with a further fine which may extend to one hundred rupees, for every day during which the evasion or contravention is continued after conviction therefor"
56. The corresponding rule under the said Act is rule 51A. In this case, while anaysing the judgments of the Supreme Court as stated above, this court in para11 as held as follows:
"11. Analysing the Scheme of the present Act, as already indicated in paragraph 7 above, the Act itself has been enacted for the purpose of establishing and administering agricultural markets. Certain areas alone are notified as being brought under the purview of the Act the certain products alone are brought within the scope of the Act. Agencies to implement the act have been set up in the form of Market Committees and a fund has also been constituted to meet the expenses of the same. S.20 itself provides that from out of the fund, any surplus that might remain after meeting the expenditure indicated in S.21, should be invested in such manner as the rules under the Act would prescribe. It is clear therefore that collection of fees is one of the important functions of the market committee and the liability to pay fees is one of the important liabilities of licensee under the Act. R.51A(5) itself is to the effect that returns are required to be filed "to enable the Market Committee to assess the quantum of fees due to it under the Act". The extent of the fiscal liability is assessed on the basis of the returns. This liability of the licensee to pay the fees lasts so long as he fails to pay the fees. It is for this purpose that the weekly returns are required to be filed. Under these circumstances, it could not be said that the offence is not a continuing offence. The offence continues till the fee is paid by the licensee to the market committee. The failure to submit returns is made an offence since it deprives the market committee of the necessary data and basis for arriving at the quantum of fee which the market licensee had in turn to pay. Applying the test indicated by the Supreme Court in Bhagirath Kanoria Vs. State of M.P., it has to be held that the failure to submit returns under R.51A, Sub-R(6) which is made punishable under Section 25(b) of the Act, is a continuing offence."
57. In a subsequent judgment also while dealing with the same Act (Previous Act of 1959) in the The Superintendent, Regulated Market, Krishnagiri Vs. M/s.A.M.S & Co., and another reported in 1992 Law Weekly (criminal) 344, this Court has held that the liability to pay the fees levied by the Market Committee is a continuous one till the fees is paid.
58. In the present case, the corresponding to provisions of the Tamil Nadu Agriculture Produce Marketing (Regulation) Act,1987 relating to penalties under Section 48 states as follows:
"48.Penalties:1)Any person who-
a)..................
b)being a licensee under this Act, fails either to submit the reports and returns to the market committee as specified in its by-laws or to produce accounts, records etc., when demanded by any officer or servant of the market committee duly empowered, or,
c)....
d)....
e)....
f)....
shall, on conviction, be punishable with fine which shall not be less than five hundred rupees but may extend to two thousand and five hundred rupees and in the case of a continuing evasion or contravention, with a further fine which may extend to five hundred rupees for every day during which the evasion or contravention is continued after conviction therefor."
59. The corresponding rule is 32 which prescribes a mandatory duty for submission of periodical returns. Therefore, applying the same analogy and especially in the presence of the specific provision making the act of non submitting return as a continuous one, I am of the considered view that applying the guidelines prescribed by the Hon'ble Apex Court reported in 1984 SCC(Criminal)590, considering the specific provision in the present Act it can only be considered as a continuing offence. In view of the same, there is no question of any limitation arising under Section 468 of the Code of Criminal Procedure.
60. As far as the next submission made by the learned counsel for the petitioners under Section 24(2) of the Act to the effect that the fees referred under Section 24(1) shall be paid by the purchaser of the notified agricultural produce concerned that requires a factual details, which cannot be gone into under Article 226 of the Constitution of India.
61. In view of the findings given above, relating to the person who has filed complaint under Section 58 of the Tamil Nadu Agriculture Produce Marketing (Regulation) Act,1987 holding that the complaint is not in accordance with Section 58 of the said Act and not on other grounds, the impugned complaints are quashed and the writ petitions are allowed.
62. With above observations, the writ petitions stands allowed. There is no order as to costs. Consequently, connected W.P.M.Ps. and W.V.M.Ps. are closed.
sms To The Supervisor, Regulated Market Committee, No.16A, Kulamangalam Road, Sellur, Madurai - 625 002