JUDGMENT 1. - This is a revision against the judgment dated 5.12.1995 passed by Additional Sessions Judge, Jodhpur who was also working as Special Judge, SC /ST Act Cases in Cr. Appeal No. 46/95 by which the learned Judge dismissed the appeal on merits but reduced the sentence of three months rigorous imprisonment passed by Additional Chief Judicial Magistrate No. 3, Jodhpur in Cr. Case No. 115/90 by which he had convicted the petitioners for the offence under section 28/2 of the Rajasthan Agricultural Produce Market Committee Act and had sentenced each of them to three months rigorous imprisonment with a fine of Rs. 1000 /- and also directed to pay Rs. 87,639.90 as market fee. 2. I have 'heard the learned counsel for the petitioners as well as learned Public Prosecutor at length. 3. Facts may be narrated in brief. Moolchand was the proprietor of firm M/s. Moolchand & Company. The petitioners had obtained licence No. 55 which was renewed upto 1993. The firm was situated in the main market at Jodhpur and was carrying on business of ghee. On 6.12.1989 record of the firm was inspected in presence of Moolchand and it was found that in the year 1989 this firm had dealt with the sale and purchase of ghee. The firm imported ghee from different places and submitted declaration No. 466/3 to 466/22. The firm also submitted the declaration regarding the ghee which they had exported. Both the declarations were compared and it was found that the firm sold the ghee but had weighed it in the market premises. Sales tax was recovered on such sale but market fee was not recovered. Thus the petitioners had contravened the provisions of Section 17 of the Rajasthan Agricultural Produce Market Committee Act, 1961. The details are that the petitioners purchased and sold the ghee worth Rs. 70,11,181.18 on which market fee of Rs. 87,639.90 was due and the same was not deposited. The complaint to that effect was submitted by the Inspector before the learned Additional Chief Judicial Magistrate No. 3, Jodhpur on 14.6.1990. He read over the accusation to the petitioner on 17.3.1992 who denied their indictment. Then the learned Magistrate examined 5 witnesses on behalf of the prosecution and recorded the statement of accused petitioners who examined one witness in defence. He read over the accusation to the petitioner on 17.3.1992 who denied their indictment. Then the learned Magistrate examined 5 witnesses on behalf of the prosecution and recorded the statement of accused petitioners who examined one witness in defence. Then after hearing both the parties he convicted Moolchand petitioner for offence under section 28(2) of the Rajasthan Agricultural Produce Market Committee Act and sentenced to three months simple imprisonment with a fine of Rs, 1000 /- and in default to undergo one month's simple imprisonment. He also ordered that a sum of Rs. 87,639.90 as mandi fee should also be deposited in the Court which may be paid to the market after the period of appeal expires. An appeal was preferred by the petitioners but the appellate Court sentenced the appellant till the rising of the Court but maintained the fine as well, as the order to pay the market fee. 4. Learned counsel for the petitioners submitted that according to Section 17 of the Act the market committee shall collect fees from the licence's in the prescribed manner on agricultural produce brought or sold by them in the market area at such rate as may be specified by the State Government. Learned counsel for the petitioner submitted that it were the purchasers whose liability is to pay the market fee and not of the seller. Therefore, according to him the demand of market fee raised against the petitioners was not correct and, therefore, the conviction as well as the order to realise the fee were illegal. Learned counsel for the petitioners submitted that the recovery of cess and fees can be made only as per RFr59 of the Rules framed under the principal Act. It is provided under sub-R. (2) of R. 59 that the market fee shall be paid by the purchaser. He relied on a judgment of Supreme Court rendered in Krishi Upaj Mandi Samiti, Haldwanz v. M/s. Indian Wood Products Ltd. & Anr., reported in 1996 (2) Supreme 716 and which has been followed by Rajasthan High Court in Krishi Upaj Mandi Samiti, Sriganganagar v. Vijay Kumar, S.B. Cr. Leave to Appeal No. 86/91, decided on 18.12.1997. 5. The gravamen of the charge against the petitioners was that they sold ghee on different dates amounting to Rs. 70,11,181.18 to the different purchasers who were out siders. A demand of Rs. Leave to Appeal No. 86/91, decided on 18.12.1997. 5. The gravamen of the charge against the petitioners was that they sold ghee on different dates amounting to Rs. 70,11,181.18 to the different purchasers who were out siders. A demand of Rs. 87,639.90 as market fee was raised against the petitioner but he did not pay the same. The case of the prosecution further was that the petitioners did realise sales tax from the customers but did not realise mandi fee and therefore the petitioners were liable to pay the same. According to the learned counsel for the petitioners the mandi fee will be payable at the place where the ghee is taken for sale and not at the place where it was sold i.e. Jodhpur and it are the purchasers who are liable for it and not the seller. According to him, therefore, the demand raised against the petitioners was illegal. 6. On the other hand, learned Public Prosecutor submitted that the demand was rightly raised. In view of Supreme Court Judgment in Krishi Upaj Mandl Samiti, rhaidwani (supra) and the unreported judgment of Rajasthan High Court in Krishi Upaj Mandi Samiti, Sriganganagar (supra) the seller is not liable to pay the said fee. Where the transaction of sale of specified agricultural produce is between a trader and another trader and where the selling trader does not collect the fee from the purchasing trader, the liability to pay the market fee remains to be that of the purchaser and he cannot refuse to pay the said fee. In view of these authorative pronouncement the demand raised against the petitioners was illegal and therefore the conviction of the petitioners was also illegal. The order to deposit a sum of Rs. 87,639.90 was also illegal. 7. Consequently, the revision succeeds. The revision petition is allowed and the judgments of both the Courts below are set aside. The amount if recovered will be refunded to petitioners.Revision allowed. *******