JUDGMENT
1. In this batch of four Criminal Appeals and six criminal revision cases, the Market Committee, Kottavalasa is the appellant/petitioner. It initiated action against each of the respondents in these cases under Section 23 of the Andhra Pradesh (Agricultural Produce and Live Stocks) Markets Act (16 of 1966), hereinafter referred to as “the Act”, and the Rules made thereunder. The respondent in each of the cases did not obtain licence as required under Section 7 of the Act and thereby committed offence punishable under Section 23 of the Act. The learned Magistrate acquitted the respondents on the ground that the Market Committee was not validly constituted. In the criminal revision cases, though the Magistrate initially convicted and imposed penalty on them, on revision, the learned Sessions Judge, Vizianagaram acquitted them on the same ground, namely, the Market Committee was not validly constituted. Thus, the appeals and revisions came to be filed.
2. Since common questions of law and facts arise in all these cases, they are being disposed of by a common judgment.
3. The facts are not in dispute. The respondent in each case is admittedly a trader as defined under Rule 2(xxxiii), namely, a person ordinarily engaged in the business of buying and selling of notified agricultural produce, livestock or products of livestock. Section 7 of the Act interdicts that “no person shall, within a notified area, set up, establish or use, or continue or allow to be continued, any place for the purchase, sale, storage, weighment, curing, pressing or processing of any notified agricultural produce or products of livestock or for the purchase or sale of livestock except under and in accordance with the conditions of a licence granted to him by the market Committee.” Chapter V of the Rules prescribed the procedure regulating the trade of the agricultural produce; etc. Under Rule 48, any person desirous to obtain or renew a licence under sub-section (1) of Section 7 shall make an application in Form 5 and under Rule 50 thereof, the Market Committee shall, within the specified period, issue or renew licence in Form 8, or Form 9 or Form 10 or Form 11, as the case may be, or reject the application therefor giving reason for such rejection.
In the case of rejection, procedure, has been provided for redressal and we are not concerned with those contingencies in these cases. Therefore it is unnecessary to deal with them here. A reading of these provisions makes manifest that a person acquires right to trade i.e., business of purchase or sale of any notified agricultural produce, livestock and their products within the notified area only on obtaining a valid licence and he shall trade in accordance with the conditions of the licence granted by the Market Committee in that behalf. Violation thereof is a contravention. Section 23 of the Act prescribes penalties. Sub-section (1) thereof contemplates that “whoever contravenes the provisions of Section 7 or …. shall be punishable with fine which may extend to five hundred rupees …”
4. Section 25 empowers the Magistrate of First Class to try the offences : punishable under Section 23. It is not disputed that the respondents are traders within the notified area of the appellant petitioner Committee and they did not obtain licences as required under Section 7 of the Act and that they have been carrying on trade in purchase or sale etc, of the notified agricultural produce, etc. The Market Committee issued notices twice (Exs. D1 and D2) to the respondents calling upon them to obtain licences. In spite of receipt of the notices, the respondents did not obtain licence and therefore complaints have been laid by the Secretary of the Committee in the trial Court under Section 23.
5. At the trial, though several contentions have been raised, the material contentions that survived in these cases are that the Market Committee, as required under Section 5 of the Act, has not legally been constituted and that the offences are barred by limitation since the complaints have been laid beyond six months as prescribed under Section 468 of the Criminal P.C., 1973 (in Chapter XXXVI). The trial court as well as the Court of Session in revisions, have held that the failure to obtain licences is a continuing offence and the complaints are not barred by limitation. However, it was held that the Market. Committee has not been properly constituted and therefore the complaints were not validly laid by a competent Committee. Thus, they held that the prosecution is not maintainable and accordingly the respondents were acquitted.
6. In these appeals and revisions, Sri Venkateswara Rao, learned counsel for “the Market Committee, contended that “though a Division Bench of this Court in P. Chandra Mouli v. State of Andhra Pradesh, (1980 (1) APLJ (HC) 120) declared Section 5 of the Act to be ultravires, since the constitution of the petitioner-Committee and the complaints were made and laid prior to the decision of this court as per law then in vogue, under the doctrine of “de facto authority”, in discharge of the functions entrusted to the Committee under S. 25(2) of the Act, the Market Committee passed resolutions empowering the Secretary to lay complaints on its behalf. Therefore, the complaints have been validly laid. In support thereof, he relied on a Division Bench decision of this Court reported in I.R. Sons v. State . Therefore the courts below committed illegality in acquitting the accused.
7. Sri Bhagiratha Rao, on the other hand, contended that though he is unable to support the acquittal in view of the doctrine of de facto authority, yet sought to sustain the acquittal on the ground that the offence viz., failure to obtain the licence as required under Section 7(1) is an offence punishable only with fine. Section 468(2)(a) of the Criminal P.C. precludes the court to take cognizance of the offence when it was laid beyond the period of six months. Admittedly in this case, complaints were laid beyond the period of six months. It is enough to extract the facts in Crl. Appeal No. 931/81, since the same is the case in all these cases. Therein the fact is that the licence expired by March 31, 1979 and renewal has to be obtained within one month therefrom but not obtained. Therefore the licence stood expired by April 30, 1979. The last day to lay prosecution is October 31, 1979. But admittedly the complaint was laid on January 15, 1980. Therefore in the teeth of the provision under Section 468(2)(a), the cognizance taken by the court is beyond the period of limitation. No explanation has been offered for condonation of the delay. Therefore the acquittal is perfectly legal on this ground.
8. Sri Venkateswara Rao, counter weighed this contention stating that the failure to obtain the licence and conducting trade within the notified area is a continuing offence and the complaints are not barred by limitation. The Court is, therefore, not precluded from taking cognisance of the offence. He also further contended that Chapter XXXVI of the Code does not apply for the offences under the provisions of the Act, a special Act. He sought support from Section 17-A of the Act which provides special limitation for recovery of the excess collections made by the traders. Though there is no express exclusion of the applicability of Chapter XXXVI of the Code, he contends that by necessary implication the limitation prescribed in this Chapter is excluded. In support thereof he also relied upon Sections 4 and 5 of the Code.
9. Sri Bhagiratha Rao, learned counsel for the respondents contended that the offence is not a continuing offence and in support thereof, he relied upon the decisions of this court and the Supreme Court reported in E.P.F. Organisation v. M/s. Shalimar Biscuits (1979 (1) APLJ (HC) 173); Smt. Bala Tripurasundari v. Vijayawada Muncipality, (1982 Mad LJ (Cri) 448) : (1982 Cri LJ NOC 180) and State of Bihar v. Deokaran, . At the first blush, I too had a lurking doubt whether the period of limitation prescribed in Chapter XXXVI of the Code would be applicable to the offences created under the special enactments like the present Act. There is no authoritative pronouncement either of the Supreme Court or of any other Court and this question may frequently arise. Therefore, I gave notice to the learned Advocate-General to assist the court had also requested Sri T. Bali Reddy to act as amicus curiae. I have heard the counsel on record and the learned Advocate-General and Sri T. Bali Reddy on this point and investigated independently into the matter. The learned Advocate-General relied upon Sections 4 and 5 of the Code.
10. Upon these rival contentions the questions that arise for decision are :
(1) Whether Chapter XXXVI of the Criminal P.C. would apply to the offences under the Act ?
(2) Whether the failure to obtain licence as required under Section 7 of the Act is a continuing offence ?
11. Before dealing with these questions, it would be necessary to clear the doubt cast on the authority of the Market Committee by the courts below, viz., whether the complaints have been validly laid. Under Section 3(3) of the Act, the Government may publish a notification declaring the areas specified in sub-section (1) thereof (Draft Notification) to be notified area regulating purchase and sale of notified agricultural produce, livestock and products of livestock in such area, specified in the notification. Thereafter, the Government shall constitute under Section 4(1), by notification, a market committee for every such notified area and the Committee so constituted shall be a “body corporate” by that name. Under sub-section (3) of Section 4, every market committee shall establish in the notified area such number of markets as the Government may, from time to time, direct for the purchase and sale of any notified agricultural produce, livestock or produce of livestock. Under sub-section (4) of Section 4, after the establishment of a market under sub-section (3) the Govt. shall declare by notification the market area and such other area adjoining thereto as may be specified in the notification to be a notified market area for the purpose of this Act.
The composition of the market committee while constituting it, has been adumbrated under Section 5 of the Act and the Government is empowered to constitute a market committee composing such number of members in the manner specified in Section 5. The aforesaid essential steps constituting the appellant/petitioner market committee have been complied with. But a Division Bench of this Court in the case referred to above Chandra Mouli v. State of A.P. 1980 (1) APLJ (HC) 120) declared that the composition of the members of the Committee as contemplated under Section 5 was ultra vires of the provisions of the Constitution. Therefore, though the composition of the petitioner/appellant Committee was not assailed specifically, but in view of the declaration made by this Court, its validity has been knocked down to its bottom denuding its legality. But the immediate question is whether the actions of the Committee done prior to the decision would become void ab initio. This question directly came up for consideration before this Court and a Division Bench of this Court in I.R. Sons v. State (AIR 1976 Andh Pra 193) speaking through Chinnappa Reddy, J. (as he then was) held that :-
“Where under Section 5(1)(i) the Government nominated certain persons to constitute the Market Committee and subsequently the nomination of the members of the committee was declared illegal by the High Court, it was held that the acts done by the de facto committee including the declarations of market area under Section 4(3)(c) in the interregnum prior to its being declared as illegally constituted must be upheld as valid in law.”
This view is not approved by the Supreme Court in Gokaraju Rangaraju v. State of A.P. . Since this ground has already been covered by these decisions, it is redundant to travel once over. While respectfully following the same, I hold that though the appellant/petitioner Committee was constituted as per law then prevailing, the Division Bench decision of this Court in Chandramouli’s case robbed off its legality. Yet, all the actions taken by the Committee before the decision is rendered by this Court in exercise of the power under the provisions of the Act, are valid in view of the “de facto authority” held by it. Therefore, the resolution passed by the Market Committee to lay complaints against the respondents and the follow up action taken up the Secretary in pursuance thereof, are valid in law. Therefore, the complaints have been validly laid.
12. The next question that arises for consideration is whether the provisions of Chapter XXXVI of the Criminal P.C. 1973, would apply to the offences committed under the Act. At the cost of repetition it is to be mentioned that Section 7(1) of the Act postulates that no person shall, within a notified area, set up, establish or use, or continue or allow to be continued, any place for the purchase, sale etc., of any notified agricultural produce or products ……… except under and in accordance with the conditions of a licence granted to him by the market committee. Section 23 creates penalties and one of the penalties is that “whoever contravenes the provisions of Section 7 …… shall be punishable with fine which may extend to Rupees five hundred ……” A reading of Section 7(1) read with Section 23 would establish that any person carrying on trade in contravention of sub-section (1) of Section 7 is committing an offence. Though the Act does not define the term ‘offence’, Section 3(38) of the General Clauses Act (Central Act X of 1897) and S. 3(21) of the Andhra Pradesh General Clauses Act, 1891, defines ‘offence’ to mean any act or omission made punishable by any law for the time being in force. S. 2(n) of the Criminal P.C. expands it defining as including any act in respect of which a complaint under Section 2 of the Cattle-trespass Act may be made. Therefore, failure to obtain a licence and carrying on trade i.e., business of purchase or sale, etc., of the notified agricultural produce, etc., within the market area of the petitioner/appellant-Market Committee shall be an offence.
13. Expressly, there is no period of limitation prescribed under the Act to lay the complaint. The object of the Act is to regulate the purchase and sale of agricultural produce, livestock or products of livestock and the establishment of markets in connection thereof. It seeks to achieve the object of eradicating or at least reducing the scope of exploitation in dealings of purchase and sale of notified agricultural produce etc., from the growers by assuring equal bargaining power to the grower through the aegis of market committee so as to ensure maximum remunerative price to his agricultural produce or livestock or products of livestock when sold in the markets established under the Act and to ameliorate thereby the economic conditions of the tillers of the soil. Licensing system is one of the schemes through which the above objective is sought to be enforced.
Failure to obtain the licence was declared to be an offence. Apart from that, the Act also envisages speedy and inexpensive collection of arrears of licence fee or market fee through coercive process of prosecution (Section 25(2)), apart from recovery thereof as arrears of land revenue (Section 26) in addition to the usual remedy of suit. Therefore, it is in the nature of fiscal enactment. Undoubtedly, it is a special enactment covering the gamut of activity of purchase and sale of the notified agricultural produce, livestock and products of livestock within the notified market area. No doubt, the learned counsel for the Market Committee may be right in contending that Section 17-A provides special limitation of eleven years for the recovery of excess and unauthorised collections made by the trader or the commission agent in the notified market area, but that does not give an indicia clinchingly to conclude that there is exclusion by implication of the applicability of the general provision of limitation vis-a-vis a special enactment. The question that has to be considered is whether the exclusion was made by necessary implication ? This can be done on a reading of the provisions of the Act as a whole vis-a-vis Chapter XXXVI of the Criminal P.C.
14. Expedition to send up the offender to take his trial for the offences complained of before the memory of the persons acquainted with the facts connected with the crime faded out and its effect diluted and to receive the verdict is a facet of the concept of “fair procedure” enshrined under Article 21 of the Constitution. A person cannot be made to await in perpetual animation bereft of peace of mind, of the haunt of prosecution at the whim of the prosecutor. By legislative sanction of new “offences” in countless Acts are created and many a time a person may be oblivion of committing an offence. Prior to April 1, 1974, there is no express embargo on the power of the Court to take cognizance of the offence laid at a belated stage but had discretionary power to decline convicting an offender, even if the offence is proved. Prescription of the period of limitation is a law relating to procedure, an extinctive prescription directing the person to work out the rights accrued under a contract or enforce remedies created under law within the period provided by such law. It merely bars the remedy and may sometimes extinguish the rights. The person aggrieved is enjoined to initiate the action to redress the injury or enforce the right lest its efficacy denuded or the remedy remains unenforceable. Anson says in his Law of Contracts that “though the rights possess the permanent character, the remedies arising from their violation are by their various statutory provisions withdrawn after a certain lapse of time. The remedies are barred though the rights are not extinguished.” In other words, the remedy gets extinguished by operation of law of limitation.
15. Legislature in recognition of the mandate of Article 21 of the Constitution, seized of the situation, felt the need of its intervention most acute, brought in the Criminal P.C. 1973 Chapter XXXVI putting limitation on the power of the Court to take cognizance of certain class of offences; classified them to be grave and trivial, excluded the former by implication obviously on the touchstone of public interest viz., safety of the society; elected to interpose by prescribing graded period of limitation even in respect of minor offences; excluded continuing offences from its purview; provided extension of time occupied in bona fide prosecutions under specified circumstances and provided an opportunity to the prosecution to give reasonable explanation for the delay caused to lay prosecution allowing discretion to the Court to condone the delay thereof in appropriate cases. This appears to have been done with a twin objectives of putting pressure on the prosecutor to be diligent to pursue prosecution and to repose peace to the offenders. In other words, Chapter XXXVI is a complete Code of Limitation in respect of offences punishable ranging with fine simpliciter to sentence of three years imprisonment be they emanate or embrace either the Penal Code or any other law. This fact is discernible from a conjoint reading of Section 4 (1) and (2) and saving Section 5 of the Code. This is also apparent from the Statement of Objects and Reasons to introduce Chapter XXXVI.
No doubt the Statement of the Objects and Reasons cannot control the operation of the provisions when the language in the section is explicit. But when it is ambiguous they provide material and source to consider the scope and ambit of the Act or section. Section 468(2)(a) of the Code provides that the period of limitation shall be six months if the offence is punishable with fine only. Section 23 of the Act prescribes only penalty of fine. Therefore, a complaint has to be laid within six months from the date of the offence and if it is laid thereafter, prohibition is engrafted against the Court from taking cognizance of such an offence after the expiry of the period unless satisfactory explanation is given for the delay occasioned therefor. The two objects to introduce Chapter XXXVI are relevant for the purpose of these cases are thus :
“Object No. 2 : For the purpose of peace and repose it is necessary that an offender should not be kept under continuous apprehension that he may be prosecuted at any time particularly because with the multifarious laws creating new offences many persons at sometime or the other commit some crime or the other. People will have no peace of mind if there is no period of limitation even for petty offences.
Object No. 5 : The period of limitation would not pressure on the organs of criminal prosecution to make every effort to ensure the detection and punishment of the crime quickly.”
The above objectives make the matter manifest that the Parliament is also cognizant of the offences created under special enactments when it is stated that “within the multifarious laws creating new offences”. It could also be seen that the Parliament after enacting Chapter XXXVI, has passed an enactment viz., Economic Offences (Inapplicability of Limitation) Act (12 of 1974) excluding the Chapter XXXVI, of the Code in respect of the offence mentioned in the schedule to the Act, as contemplated under Section 2 thereof. The Special Acts are not one of those excluded from the purview of Chapter XXXVI of the Code.
16. Sri Venkateswara Rao learned counsel for the Market Committee laid emphasis on Sections 4 and 5 of the Code and contended that by implication of reading of the above two provisions also, the limitation provided under Chapter XXXVI is excluded. The learned Advocate-General, Sri Bali Reddy and Bhagiratha Rao contended contra.
17. Sections 4 and 5 read thus :
“4. (1) All offences under the Indian Penal Code (45 of 1860), shall be investigated, enquired into, tried, and otherwise dealt with according to the provisions hereinafter contained;
(2) All offences under any other laws shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.
5. Nothing contained in this Code shall in the absence of a specified provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.”
18. A reading of the above provisions would clearly indicate that where there is any enactment occupying the field regulating “the manner” or “place of investigation” or “enquiry” into. “trying” or otherwise dealing with such offences, they are alone excluded. Otherwise, the procedure prescribed under the Code including limitation shall prevail. Section 5 expressly saves operation of such special or local law and the “special form of procedure” prescribed, power conferred or jurisdiction invested, etc. It may also be relevant to note that wherever the Legislature intended to prescribe the special limitation for the offences created like Municipalities Act, they have expressly provided the period of limitation. But in that Act, there is no special limitation provided.
19. A Full Bench of the Madras High Court in Thiruvengadasami v. Municipal Health Officer, (AIR 1949 Mad 547 at p. 557) : ((1949) 50 Cri LJ 823 At p. 833) speaking through Govinda Menon, J. (as he then was) held that :
“Law of procedure is not different in the trial of cases under the Penal Code and those under other statutes according to Section 5, Criminal P.C. except that in the case of offences under other laws the procedure laid down by the Criminal P.C. is subject to any enactment for the time for regulating the manner or place of investigation, enquiry or trial.”
20. Same is the view taken by a Division of the Bombay High Court in Sholapur Municipality v. R. V. Relekar speaking through Chandrachud, J. (as he then was) cited by the learned Advocate General while construing the provisions of Section 1(2) and Section 5(2) of the old Criminal P.C. (1898).
21. While respectfully agreeing with the above view and following the same and in view of the consideration of the subject referred to above, I have no hesitation to hold that Chapter XXXVI of the Code does apply to the offences created under the Act.
22. The next question for consideration is whether the complaint was laid within the period of limitation and if not whether the offence is barred by limitation. Undoubtedly, in view of the facts stated earlier, the complaints have been laid beyond the period of limitation. But the contention of Sri Venkateswara Rao is that failure to obtain a licence and conducting trade in purchase and sale of the notified agricultural produce etc. within the notified area of the market committee is a continuing offence and that therefore the complaints are not barred by limitation and converse is the contention of Sri Bhagiratha Rao learned counsel for the respondents.
23. As stated earlier, Section 7 employs negative language declaring that no person shall carry on purchase or sale of any notified agricultural produce, etc. except and in accordance with the terms and conditions of the licence issued under Rule 50. The failure to obtain the licence and continuing to purchase or sell by a person without obtaining a licence every day thereafter shall remain to be a continuing offence punishable. Section 472 of the Code envisages thus :
“In the case of a continuing offence, a fresh period of limitation shall begin to run at every moment of the time during which the offence continue.” The concept of “continuing offence” is a vexed question confronted the Courts time and again. If the contravention complained of is complete in itself though the consequence result therefrom may continue, the offence is complete and is not a continuing offence. The expression “Continuing offence” means that if an act or omission constituting an offence continues from day to day, then, fresh offence is committed every day on which the act or omission is repeated, recurred or continues. A continuing wrong or a continuing offence is nothing but a breach of a duty enjoined by a statute or an act of parties which itself is continuing one. The non-performance of the duty from day to day is a continuing wrong. It is the very essence of a continuing wrong, a source of injury frequented every day which makes the person doing it liable for the act or omission complained of. The offence may be committed by a positive act prohibited by law or by the omission to do that which the law makes it obligatory on the part of the person to do on pain of punishment. So far as the first is concerned, there can be no doubt that an offence is committed at every time when the positive act is repeated. In the latter case, it makes no difference so long as the law expects the doer of the act to fulfill an obligation cast under the Act.
Consequently every day that omission is not rectified or perpetrated by the performance of the negative duty, an offence is committed. No doubt, technically every moment omissions is punishable as a separate offence. To continue means to remain in existence not to cease. Therefore, if the omission continues de die in diem then fresh offence is committed on every day on which the omission to obtain licence and continuing to purchase or sale of the notified agricultural produce etc. within the notified market area is continued. Thus the continued contravention of transacting the sale or purchase without a valid licence issued under Rule 50 is a continuing offence de die in diem.
24. Section 22 of the Limitation Act 1963 postulates that in the case of a continuing breach of contract or tort a fresh period of limitation begins to run at every moment of the time during which the breach or the tort as the case may be, continues. Therefore, even under civil law, when a wrongful act complained of is continuing or a breach of contract is allowed to perpetrate, a fresh period of limitation begins to run at every moment of the time during which the breach or the tort continues. Section 22 is similar to Section 23 of the old Limitation Act, 1908. The latter provision was the subject of consideration by several courts and it is enough to state that a Full Bench of the Lahore High Court in Khair Mohd. Khan v. Mt. Jannat, (AIR 1940 Lahore 359) and the Supreme Court in Balakrishna v. Sree D. M. Sansthan, considered the scope of continuing wrong. The Supreme Court held :
“It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders “the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury. It is only in regard to acts which can be properly characterised as continuing wrongs that Section 23 can be invoked.”
The language under Section 472 of the Code is mutatis mutandis similar to the language couched in Section 22 of the Limitation Act. The ratio laid down by their Lordships of the Supreme Court referred to above, while considering Section 23 of the Limitation Act 1908 which is similar to Section 22 of the present Limitation Act, will equally apply to a case of continuing offence.
25. The concept of continuing offence was considered by the Supreme Court in State of Bihar v. Deokaran, (supra). In considering the question whether the failure to furnish the annual return prescribed under the Mines Act is a continuing offence, Shelat, J. speaking on behalf of the court held thus :
“Continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all.
It is one of those offences which arises out of a failure to obey or comply with a rule or its requirement and which involve a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience or non-compliance occurs and recurs, there is the offence committed. The distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues and therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all.”
No doubt, on the facts in that case their Lordships have held that failure to furnish the annual return is not a continuing offence.
26. Before a Division Bench of that Bombay High Court consisting of Gajendragadkar and Shah, JJ. (as their Lordships then were) in State v. Bhiwandiwalla, the question that arose was whether the failure to obtain permission from the Inspector of Factories for continuing to run the factory as per Rules 3 and 4 of the Factory Rules, is a continuing offence. While construing those rules, the learned Judges have held that the grant of a licence which is issued in Form 4 prescribed under Rule 5 authorises the occupier to use the premises mentioned in the licence as a factory employing the number of workers as specified and using the electric power as indicated in the licence subject to the provisions of the Factories Act and the Rules made thereunder. The failure to apply for registration is not a continuing offence. The respondent did not apply for a licence and has been running the factory without licence, his conduct amounts to a continuing offence and in respect of continuing offence, it would be impossible to uphold the plea of limitation under Section 106 of the Act. This view was approved by the Supreme Court in State of Bihar v. Deokaran, (AIR 1973 SC 903) : (1973 Cri LJ 347). (supra). Similar is the view taken by several courts, viz., Verney v. Mark Fletcher and Sons, (1909 (1) KB 444) by Lord Alverstone, C.J., Best v. Butler and Fitzgibbon, (1932 (2) KB 108) Lord Hewart, C.J., Emperor v. Karsandass, (AIR 1942 Bom 326) : (1943 (44) Cri LJ 120); by Beaumont C.J., (as he then was); Public Prosecutor v. Veerabhadrappa, by Govinda Menon, J. (as he then was) and State v. Laxmi Narain, .
27. The two decisions relied on by Sri Bhagiratha Rao, learned counsel for the respondents have no application to the facts in this case and they are distinguishable. In Smt. Balatripurasundari v. Vijayawada Municipality, (1982 Mad LJ (Cri) 448) : (1982 Cri LJ NOC 180) the question that arose was whether the failure to obtain licence for installation of electric motor and establishment of a workshop without licence is a continuing offence. The establishment of the electric motor without prior permission or the Municipality is completed as soon as the installation was made and therefore though the contravention continues, it is not a continuing contravention and the limitation begins to run on the date when the installation was made or the workshop established. That is the ratio in that case and it was expressly stated so in paragraph 15 of the judgment. Similarly, in E.P.F. Organisation v. M/s. Shalimar Biscuits (1979 (1) APLJ (HC) 173) (supra) this Court was called upon to consider whether the failure of the employer to deposit his share of the Provident Fund of the employees was to be a continuing offence. In view of the statement of law laid by the Supreme Court referred to earlier in State of Bihar v. Deokaran, (supra) and following the same, the learned Judge has held on the the facts in that case that it is not a continuing offence.
28. The further contention of Sri Bhagiratha Rao, learned counsel for the respondent that unless there is a first conviction, it cannot be said that the offence under Section 23 is a continuing offence sought support from the latter part of Section 23 which reads thus :
“……… and in the case of a continuing contravention with a further fine which may extend to one hundred rupees for every day during with the contravention is continued after conviction therefor.”
We cannot accede to this contention. This latter clause clears the ground that the Court is empowered to impose higher rate of penalty of rupees one hundred for continuance of contravention of every day after the first conviction, but that does not mean that the contravention is not a continuing contravention or that the continuing contravention would begin to arise only from the date of the conviction. The construction sought to be put upon would do, not only violance to the language but also defeats the very purpose of the Act. While construing the provisions like the present Act, a remedial or beneficial legislation equitable construction of the statute which shall suppress the mischief and advance the remedy is to be adopted. As stated earlier, the object of the Act is to ameliorate the economic conditions of the growers by regulating the sale and purchase of the notified market produce within the notified market area and the licensing system is one of the prescriptions through which the enforcement of the provisions is intended for and therefore failure to obtain the licence is made to meet with a penal consequence with graded severity.
29. Viewing from this angle, I have no hesitation to hold that failure to obtain licence as required under Section 7, of the Act and continuing to trade in sale and purchase of the agricultural produce within the notified area is a continuing offence and became liable to penalty provided under Section 23 of the Act. In view of this conclusion, I hold that the prosecution has established its case beyond reasonable doubt that the respondents have contravened the provisions of Section 7. Therefore they have committed an offence punishable under Section 23 of the Act. Accordingly, the four appeals are allowed and the orders of acquittal are set aside and the respondent in each of the appeals is convicted under Section 23 of the Act. Similarly, the six revision cases are allowed, the orders of acquittal recorded by the learned Sessions Judge, Vizianagaram are set aside and that of the Magistrate are restored. The respondents are convicted under Section 23 of the Act and each of the respondents in all these cases is sentenced to pay a fine of rupees two hundred, in default to undergo simple imprisonment for one month. The respondents shall pay the licence fee and make over payment under Section 25(2) of the Act to the appellant/petitioner. The fine amount and the licence fee shall be paid within six weeks from the date of receipt of the order and on intimation therefor by the lower Court.
30. Before parting with the case, I place on record the valuable assistance given by the learned Advocate General and Sri Bali Reddy as amicus curiae.
31. Appeals allowed.
