ACT 14 OF 1981
THE KERALA RAW
CASHEWNUTS (PROCUREMENT
AND DISTRIBUTION)
ACT, 1981
An Act to provide for the trade in raw cashewnuts by the State to the
exclusion by
all others by the procurement and sale thereof at
fair prices.
Preamble.-WHEREAS
by judgment dated the 23rd January, 1981, the Supreme Court has
quashed the declaration made by the Government of Kerala to the effect that raw
cashewnut is an essential article under the Kerala Essential Articles Control
(Temporary Powers) Act, 1961 and the Kerala Raw Cashewnuts (Procurement and
Distribution) Order, 1977, made under that Act;
AND WHEREAS raw
cashewnut is an essential raw material for the cashew industry which is one of
the most important traditional industries in the state;
AND WHEREAS the
maintenance of supplies of raw cashewnuts is essential for the continued
employment of about one and a half lakhs workers employed in more than two
hundred and fifty cashew factories in the State;
AND WHEREAS unemployment of the workers
employed in the cashew factories in the State will adversely affects he economy
of the State;
AND WHEREAS the
quantity of imported raw cashewnuts made available to the factories in the
State has dwindled down considerably and consequently the quantity of imported
raw cashewnut is not sufficient to give more than seven days’ work in an year
to the workers in the cashew industry in the State;
AND WHEREAS, in the
circumstances, it is considered necessary to provide that trade in raw
cashewnuts with the State should be undertaken by the State to the exclusion of
all others by the procurement and sale thereof at fair prices;
BE it enacted in the
Thirty-second Year of the Republic of India as follows:-
1. Short title,
extent and commencement.- (1) This Act may be called the Kerala Raw
Cashewnuts (Procurement and Distribution) Act, 1981.
(2) It
extends to the whole of the State of Kerala.
(3) It
shall be deemed to have come into force on the 2nd day of February,
1981.
2.
Definitions.- In this Act, unless the context otherwise
requires,-
(a)[ “agent” means the agent
authorised by the Government under sub-section (1) of section 3;]
(b)
“competent authority” means the Government or an officer authorised by the
Government to grant permits;
(c)
“co-operative society” means a society registered or deemed to be registered
under the Kerala co-operative Societies Act, 1969 (21 of 1969);
(d)
“cultivator” means a person who actually cultivates any land with cashew or who
is entitled to take the usufructs from any land cultivated with cashew ;
(dd)
[*******************]
[(e) “notified price”, in relation to raw cashewnuts, means the price
notified under sub-section (2) of section 5;]
(f)
“occupier” means an occupier as defined in the Factories Act, 1948 (Central Act
63 of 1948) ;
(g)
“person” includes a body corporate, a company, a firm, an association of
individuals or a co-operative society ;
(h)
“permit” means a permit referred to in section 15 ;
(i)
“prescribed” means prescribed by rules made under this Act;
(j)
“raw cashewnut” does not include roasted cashewnut;
(k)
“State” means the State of Kerala ;
(l)
“sub-agent” means a co-operative society appointed by the agent under section
9.
(m) [*********************]
2A
[****************]
2B
[****************]
2C
[****************]
[“3. Restriction on sale and purchase of raw cashewnuts.-(1) The
Government may, by notification in the Gazette authorise any co-operative
society as agent of the Government for the purpose of purchase and sale of raw
cashewnuts within the State.
(2)
No person shall sell any raw cashewnuts within the State except to the agent or
a sub-agent.
(3)
No person other than the agent or a sub-agent shall purchase any raw cashewnuts
within the State.”].
[4. Restriction on possession of raw cashewnuts.- No person other
than the agent or a sub-agent shall have in his possession, any time, raw
cashewnuts in excess of the quantity of fifty kilograms:
Provided that
nothing contained in this section shall apply to raw cashewnuts sold to any
cashew factory under section 11 and kept in that factory.]
[5. Price to be paid by agent and sub-agents.- (1) When raw cashewnuts
are tendered to the agent or a sub-agent by or on behalf of a cultivator, the
agent or such sub-agent shall pay the price thereof at the rate notified for
the locality under sub-section (2)
(2)
For the purposes of sub-section (1), the Government shall, from time to time,
notify the prices of raw cashewnuts in the different locality in the State, in
such manner as they think fit.
(3)
The agent or sub-agent shall not refuse to purchase any raw cashewnut tendered
to him by or on behalf of a cultivator.
Provided that the agent or a sub-agent may refuse to purchase the raw
cashewnuts tendered for sale which do not conform to such quality or standard
as may be prescribed vide Act 5 of 1988
6. Agent to
furnish returns.- The agent shall furnish to the Government and to any
officer specified by the Government in this behalf by notification in the
Gazette, on such day or days as may be prescribed, a return showing the place
or places where raw cashewnuts have been stocked by him, the quantity thereof
and the price paid by him therefor.]
7. Power of
government to issue instructions to agent and sub-agent.- The Government
may, from time to time, give to the agent and the sub-agents general
instructions for the purpose of efficiently carrying out their duties under
this Act, and the agent and the sub-agents shall comply with such instructions.
8. Removal
of agent.- If the agent contravenes any of the provisions of this Act or
does not comply with any instruction issued by the Government under section 7,
his agency shall, without prejudice to any penalty to which he is liable under
this Act, be liable to be terminated:
Provided that
the agency shall not be terminated without giving the agent an opportunity for
making representations in writing against such termination.
9. Appointment
of Co-operative Societies as sub-agents.-(1) The agent may, by order in
writing, appoint any co-operative society to be a sub-agent for the purposes of
this Act and define the local area for which such appointment is made:
Provided that no
such order shall be valid unless it is approved by the Government or an officer
specified by the Government in this behalf by notification in the Gazette.
(2)
Every sub-agent appointed under sub-section (1) shall furnish to the agent on
such dates as may be specified by the agent in this behalf a return showing the
place or places where cashewnuts are stocked by him, the quantity thereof and
the price paid by him therefor.
(3)
If any sub-agent contravenes any of the provisions of this Act or does not
comply with any instruction issued by the Government under section 7 or any
instruction issued to him by the agent, the Government or the agent may,
without prejudice to any penalty to which he is liable under this Act, terminate
his appointment as sub-agent :
Provided that
before terminating, the appointment of a sub-agent, he shall be given an
opportunity for making representations in writing against such termination.
[“10. Prohibition of processing or conversion and restriction on sale
etc. The agent or a sub-agent shall not-
(a) Process or
convert; or
(b) sell, except in
accordance with the provisions of section 11, or otherwise dispose of, any raw
cashewnuts purchased by him under this Act:
Provided
that nothing contained in this section shall prohibit the agent or a sub-agent
who is an occupier of cashew factory, from processing or converting any raw
cashewnuts sold to him under section 11.”].
[11. Sale of raw cashewnuts to cashew factories.- (1) all raw cashewnuts
purchased by the agent and the sub-agents under this Act shall be sold to the
cashew factories in the State which are registered in pursuance of the rules
made under the Factories Act, 1948 (Central Act 63 of 1948), and which were
eligible for imported cashewnuts under the Import Trade Control Policy of the
Government of India, in accordance with the provisions of sub-section (2).
(2)
The quantity of raw cashewnuts to be sold to each cashew factory shall be
determined on the basis of the muster-roll strength of the workers of the
factory as on the 1st day of January, 1982 or on the basis of the
average of the muster-roll strength of the workers of the factory for the three
years of 1985, 1986 and 1987, whichever is higher, subject to the maximum of
the licensed strength.
(3)
An officer authorised by the Government in this behalf by notification in the
Gazette shall, in accordance with the principle specified in sub-section (2),
by order, specify the quantity to be sold to each cashew factory.
(4)
An order under sub-section (3) shall be served on the agent and the occupiers
of the cashew factories specified in that order.
(5)
The officer authorised under sub-section (3) shall give notice to the occupier
of every cashew factory specified in an order under that sub-section requiring
him to take delivery of the raw cashewnuts offered for sale to that factory
from the place specified in the notice within seven days of the service of the
notice.
(6)
If any dispute arises in respect of any order under sub-section (3), such
dispute shall be referred to the Government, whose decision thereon shall be
final.]
[12. Duty of occupier to take delivery of raw cashewnuts.-(1) If
an occupier of a cashew factory fails to take delivery of the raw cashewnuts
offered to be sold to his factory from the place and before the date referred
to in sub-section (5) of section 11, such offer for sale shall stand cancelled.
(2)
Failure of an occupier of a cashew factory to take delivery of raw cashewnuts
under sub-section (1) shall constitute a contravention of the provisions of
this Act punishable under section 25.
(3)
Without prejudice to the provisions of sub-sections (1) and (2), an occupier of
a cashew factory who fails to take delivery of the raw cashewnuts from the
place and before the date referred to in sub-section (5) or section 11, shall
not be offered for sale raw cashewnuts under this Act, for a period of two
years immediately succeeding the year in which the offer for sale was cancelled
under sub-section (1).]
[13. Price to be paid by occupiers.-(1) The price to be paid by the
occupiers of cashew factories for the raw cashewnuts sold to them under section
11 shall be decided by the Government from time to time.
(2)
In deciding the price under sub-section (1), the Government shall take into
consideration-
(a) the
grade and quality of the raw cashewnuts;
(b) the
notified price of raw cashewnuts; and
(c)
incidental expenses incurred by the Government, the agent and
the
sub-agents]
[14.
Processing of raw cashewnuts to be done in the concerned factory.-
Roasting, shelling, peeling and grading of raw cashewnuts sold to a cashew
factory under section 11 shall be done only in that factory and at no other
place.]
15. Restriction
on transport of raw cashewnuts.- No person shall transport or attempt to
transport or abet the transport of raw cashewnuts from one place to another
place in the State except under and in accordance with a permit issued in that
behalf by the competent authority or any other officer authorised by the
Government in this behalf:
Provided
that nothing contained in this section shall apply to the movement of raw
cashewnuts by a cultivator for sale thereof to
[*************] the agent or a sub-agent.
16. Application
form and form of permit.-(1) An application for the grant of a permit shall
be in the prescribed form and shall be verified in the prescribed manner and
shall be affixed with a court-fee stamp of the value of
[ten] rupees.
(2)
The permit shall be in such form as may be prescribed.
17. Power to
refuse permit.- The competent authority may, if it is satisfied that the
grant of a permit will defeat any of the provisions of this Act, refuse to
grant the permit:
Provided
that, before refusing to grant a permit, the applicant shall be given an
opportunity to state his case against such refusal.
18. Cancellation
of permit.-Where the competent authority is satisfied that an applicant for
a permit issued by it has furnished incorrect information or that he has, after
the issue of the permit, contravened any of the provisions of this Act or any
of the terms and conditions of the permit, it may, without prejudice to any
other action against the holder of the permit under his Act, by order, cancel
the permit:
Provided
that no permit shall be cancelled without giving the holder thereof an
opportunity to state his case against such cancellation.
19. Powers
of entry, seizure, etc.- (1) Any revenue officer of and above the rank of
Revenue Inspector, or any officer of the Sales Tex Department not below the
rank of Sales Tax Inspector, or any officer of the Co-operative Department
[or the Industries Department] not below the rank of Junior Co-operative
Inspector, or any Block Development Officer, or any other officer authorised by
the Government in this behalf, or any police officer not below the rank of Sub
Inspector, my, with a view to securing compliance with the provisions of this
Act or to satisfying himself that the said provisions have been complied with,-
(a) enter and search
any premises;
(b) inspect any books,
accounts or other documents maintained in the course of business or any stock
of raw cashewnuts in the possession or under the control of any person;
(c) seize any such
books, accounts or other documents which in his opinion would be useful for, or
relevant to, any proceedings under this Act;
(d) search any animal,
vessel, vehicle or other conveyance or any package, covering or receptacle,
which has been, or is being, used, or is about to be used, for the
contravention of this Act;
(e) seize any raw
cashewnuts in respect of which he has reason to believe that a contravention of
this Act has been, is being, or is about to be, committed, and any packages,
coverings, or receptacles in which such raw cashewnuts are found;
(f) seize any
animal, vessel, vehicle or other conveyance used in carrying such raw
cashewnuts, if he has reason to believe that such animal, vessel, vehicle or
other conveyance is liable to be forfeited under the provisions of this Act.
(2) The provisions of the
Code of Criminal Procedure, 1973 (Central Act 2 of 1974), relating to search
and seizure shall, so far as may be, apply to search and seizure under this
section.
20. Confiscation
of raw cashewnuts.- (1) Where raw cashewnuts are seized under section 19, a
report of such seizure shall, without unreasonable delay, be made to the
Revenue Divisional Officer having jurisdiction over the area in which such raw
cashewnuts are seized, and whether or not a prosecution is instituted for the
contravention of this Act in respect of such raw cashewnuts, the Revenue
Divisional Officer may, if he thinks it expedient so to do, direct the raw
cashewnuts so seized to be produced for inspection before him, and if he is satisfied
that there has been a contravention of this Act, may order confiscation of-
(a) the
raw cashewnuts so seized;
(b) any
package, covering or receptacle in which such raw
cashewnuts are found; and
(c) any animal, vehicle, vessel or other conveyance used
in
carrying such raw cashewnuts:
Provided that, in the
case of any animal, vessel, vehicle or other conveyance used for the carriage
of goods or passengers for hire, the owner of such animal, vessel, vehicle or
other conveyance shall be given an option to pay, in lieu of its confiscation,
a fine not less than one-half of the value of such animal, vessel, vehicle or
other conveyance as determined by the Revenue Divisional Officer.
(2)
Where the Revenue Divisional Officer, on receiving a report of seizure of any
raw cashewnuts under sub-section (1), is of the opinion that the raw cashewnuts
are subject to speedy and natural decay or it is otherwise expedient in the
public interest so to do, he may order the same to be sold to the agent or the
sub-agent appointed for the area in which the raw cashewnuts were seized,
[at the notified price] under sub-section (2) of section 5.
(3)
Where any raw cashewnuts are sold under sub-section (2), the sale proceeds
thereof, after deduction of the expenses of such sale or other incidental
expenses relating thereto, shall-
(a) where no order
of confiscation is ultimately passed by the Revenue Divisional Officer; or
(b) where an order
passed on appeal under sub-section (1) of section 22 so requires; or
(c) where in a
prosecution instituted for the contravention of this Act in respect of which an
order of confiscation has been made under this section, the person concerned,
is acquitted,
be paid to the owner thereof
or the person from whom they are seized.
21. Issue of
show-cause notice before confiscation.- (1) No order confiscating any raw
cashewnuts, package, covering, receptacle, animal, vessel, vehicle or other
conveyance shall be made under section 20 unless the owner of such raw
cashewnuts, package, covering, receptacle, animal, vessel, vehicle or other
conveyance or the person from whom the same is seized-
(a)
is given a notice in writing informing him of the grounds on
which it is proposed to confiscate the raw cashewnuts,
;
package, covering, receptacle, animal, vessel, or other
conveyance;
(b)
is given an opportunity of making a representation in writing
within
such reasonable time as may be specified in the notice
against the grounds of confiscation; and
(c)
is given a reasonable opportunity of being heard in the matter.
(2)
Without prejudice to the provisions of sub-section (1), no order confiscating
any animal, vessel, vehicle or other conveyance shall be made under section 20,
if the owner of the animal, vessel, vehicle or other conveyance proves to the
satisfaction of the Revenue Divisional Officer that it was used in carrying the
raw cashewnuts without the knowledge or connivance of the owner himself, his
agent, if any, and the person in charge of the animal, vessel, vehicle or other
conveyance and that each of them had taken all reasonable and necessary
precautions against such use.
(3)
No order confiscating any raw cashewnuts, package, covering, receptacle,
animal, vessel, vehicle or other conveyance shall be invalid merely by reason
of any defect or irregularity in the notice given under clause(a) of
sub-section (1), if, in giving such notice, the provisions of that clause have
been substantially complied with.
22. Appeal.-
(1) Any person aggrieved by an order of confiscation under section 20 may,
within one month from the date of the communication to him of such order,
appeal to the District Judge having jurisdiction over the area in which the raw
cashewnuts to which such order relates were siezed, and the District Judge shall,
after giving an opportunity to the appellant to be heard, pass such order as he
may think fit, confirming, modifying or annulling the order appealed against.
(2)
Where an order under section 20 is modified or annulled by the District Judge,
or where in a prosecution instituted for the contravention of this Act in
respect of which an order of confiscation has been made under section 20, the
person concerned is acquitted, and in either case it is not possible for any
reason to return the raw cashewnuts seized, such person shall, except as
provided by sub-section (3) of section 20, the person concerned to acquitted,
and in either case it is not possible for any reason to return the raw
cashewnuts seized, such person shall, except, as provided by sub-section (3) of
section 20, [be paid the price] therefor as
if the raw cashewnuts had been sold to the Government with reasonable interest
calculated from the day of the seizure of the raw cashewnuts, [and
such price shall be determined in accordance with the provisions of section 5.]
23. Award of
confiscation not to interfere with other punishment.- The award of any
confiscation under this Act by the Revenue Divisional Officer shall not prevent
the infliction of any punishment to which the person affected thereby is liable
under this Act.
24. Bar of
jurisdiction in certain cases.-Whenever any raw cashewnuts are seized under
section 19, the Revenue Divisional Officer or, as the case may be, the District
Judge shall have, and notwithstanding anything to the contrary contained in any
other law for the time being in force, any other court, tribunal or authority
shall not have, jurisdiction to make orders with regard to the possession,
delivery, disposal or distribution of such raw cashewnuts.
25. Penalties.-
(1) If any person contravenes any provision of this Act,-
(a) he
shall be punishable with imprisonment for a term which
may extend to one year and shall also be liable
to fine which may extend to one thousand
rupees;
(b) any
property in respect of which such provision has been
contravened shall be forfeited to the
Government;
(c) any
package, covering or receptacle in which raw cashewnuts
are found and any animal, vessel, vehicle
or other conveyance used in carrying
the raw cashewnuts shall, if the court so
orders, be forfeited to the
Government.
(2)
If any person convicted of an offence under sub-section (1), is again convicted
of an offence under that sub-section, he shall be punishable with imprisonment
for the second and for every subsequent offence for a term which shall not be
less than one month but which may extend to one year and shall also be liable
to fine which may extend to one thousand rupees:
Provided
that the court may, for any adequate and special reasons to be mentioned in the
judgement, impose a sentence of imprisonment for a term of less than one month.
26. Attempts
and abetment.- Any person who attempts to contravene, or abets a
contravention of, any provision of this Act shall be deemed to have contravened
that provision.
26. False
statement.- If any person, -
(i) when
required by any of the provisions of this Act or any rule made
thereunder to make any statement or furnish
any information, makes any statement or
furnishes any information which is false in any
material particular and which he knows or
has reasonable cause to believe to be
false, or does not believe to be true, or
(ii) makes
any such statement as foresaid in any book, account, record,
declaration, return or other document which
he is required by any of the provisions of
this Act or any rule made thereunder to maintain or
furnish,
he shall be punishable with
imprisonment for a term which may extend to three months, or with fine, or with
both.
28. Offences
by companies.- (1) If the person contravening any of the provisions of this
Act is a company, every person who, at the time the contravention was
committed, was in charge of, and was responsible to, the company for the
conduct of the business of the company, as well as the company, shall be deemed
to be guilty of the contravention and shall be liable to be proceeded against
and punished accordingly:
Provided
that nothing contained in this sub-section shall render any such person liable
to any punishment if he proves that the contravention took place without his
knowledge or that he exercised all due diligence to prevent such contravention.
(2)
Notwithstanding anything contained in sub-section (1), where an offence under
this Act has been committed by a company and it is proved that the offence has
been committed with the consent or connivance of, or is attributable to any
neglect on the part of, any director, manager, secretary or other officer of
the company, such director, manager, secretary or other officer shall also be
deemed to be guilty of that offence and shall be liable to be proceeded against
and punished accordingly.
Explanation.-
For the purposes of this section, -
(a)
‘company means any body corporate, and includes a firm or other
association of individuals; and
(b)
‘director’, in relation to a firm, means a partner in the firm.
29. Offences to be
cognizable.-Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (Central Act 2 of 1974), every offence punishable under this
Act shall be cognizable.
30. Cognizance of
offences.- No court shall take cognizance of any offence punishable under
this Act except on a report in writing of the facts constituting such offence
made by an officer authorised in this behalf by the Government by notification
in the Gazette
31. Grant of
injunction, etc., by civil courts.- No civil court shall grant an
injunction or make any order for any other relief against the Government or the
agent or a sub-agent or any officer specified or authorised under this Act, in
respect of any act done or purporting to be done by the Government or the agent
or the sub-agent or such officer under this Act or any rule made thereunder,
until after notice of the application for such injunction or other relief has
been given to the Government or the agent or the sub-agent or such officer, as
the case may be
32. Protection
of action taken under Act.- (1) No suit, prosecution or other legal
proceeding shall lie against any person for anything which is in good faith
done or intended to be done in pursuance of any provision of this Act or any
rule made thereunder.
(2)
No suit or other legal proceeding shall lie against the Government for any
damage caused or likely to be caused by anything which is in good faith done or
intended to be done in pursuance of any provision of this Act or any rule made
thereunder.
33. Exemption.-
Nothing contained in this Act shall apply in respect of imported raw cashewnuts
allotted by the Cashew Corporation of India to cashew factories under the
Import Trade Control Policy for the time being in force of the Government of
India.
34. Power to
make rules.- (1) The Government may, by notification in the Gazette, make
rules for the purpose of carrying into effect the provisions of this Act.
(2)
Every rule made under this Act shall be laid, as soon as may be after it is
made, before the Legislative Assembly while it is in session for a period of
fourteen days which may be comprised in one session or in two successive
sessions and if before the expiry of the session in which it is so laid or the
session immediately following, the Legislative Assembly makes any modification
in the rule or decides that the rule should not be made, the rule shall
thereafter have effect only in such modified form or be of no effect, as the
case may be; so however that any such modification or annulment shall be
without prejudice to the validity of anything previously done under that rule.
35. Repeal
and saving.- (1) The Kerala Raw Cashewnuts (Procurement and Distribution)
Ordinance, 1981 (1 of 1981), is hereby repealed.
(2)
Notwithstanding such repeal, anything done or any action taken under the said
Ordinance shall be deemed to have been done or taken under this Act.