ORDINANCE NO.63 OF 2007
THE UNREGISTERED CASHEWNUT FACTORIES PROHIBITION (AMENDMENT) ORDINANCE, 2007
Promulgated by the Governor of Kerala in the Fifty-eighth Year of the Republic of India.
AN
ORDINANCE
to amend the Unregistered Cashewnut Factories Prohibition Act, 1967.
Preamble.- WHEREAS, the Legislative Assembly of the State of Kerala is not in session and the Governor of Kerala is satisfied that circumstances exist which render it necessary for him to take immediate action;
NOW, THEREFORE, in exercise of the powers conferred by clause (1) of Article 213 of the Constitution of India, the Governor of Kerala is pleased to promulgate the following Ordinance:-
1. Short title and commencement.- (1) This Ordinance may be called the Unregistered Cashewnut Factories Prohibition (Amendment)Ordinance, 2007.
(2) It shall come into force at once.
2. Act 11 of 1967 to be temporarily amended.- During the period of operation of this Ordinance, the Unregistered Cashewnut Factories Prohibition Act, 1967 (11 of 1967) (hereinafter referred to as the principal Act), shall have effect subject to the amendments specified in sections 3 to 6.
3. Amendment of Section 5.- In section 5 of the principal Act, in clause (b) of sub-section (1), after the word "found" the words "and the machines, equipments and other instruments used or about to be used for such processing, in such premises" shall be added.
4. Insertion of new section 5A.- After section 5 of the principal Act, the following section shall be inserted, namely:-
"5A Sale of raw cashewnuts seized.- (1) Notwithstanding anything contained in any other provisions of this Act, where raw cashewnuts are seized under section 5, 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 the provisions of this Act, in respect of such cashewnut, the Revenue Divisional Officer may if he thinks it expedient so to do, direct the raw cashewnuts so seized to be produced before him for inspection.
(2) Where the Revenue Divisional Officer, on receipt of a report of seizure of cashewnuts under sub-section (1), is of the opinion that the cashewnuts seized 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 either to the Kerala State Cashew Development Corporation or to the Kerala State Cashew Workers' Apex Industrial Co-operative Society Ltd. at the prevailing market rate or in public auction as the situation justifies.
(3) Where the Revenue Divisional Officer, so order the sale of any raw cashewnuts seized under this section, he shall prepare an inventory of such seized cashewnuts containing such details relating to their description, quality, quantity, mode of packing and other particulars as the Revenue Divisional Officer may consider relevant to prove the identity of the raw cashewnuts seized in any proceedings under this Ordinance, and make an application to any Magistrate for the purpose of,-
(a) certifying the correctness of the inventory so prepared; or;
(b) taking, in the presence of such Magistrate, photographs of such raw cashewnuts and certifying such photographs as true.
(4) Where an application is made under sub-section (3), the Magistrate shall, as soon as may be, allow the application.
(5) Notwithstanding anything contained in the Indian Evidence Act, 1872 (Central Act 1 of 1872) or the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) any Court trying an offence under this Act, shall treat the inventory and the photographs of the seized raw cashewnuts and certified by the Magistrate, as primary evidence in respect of such offence.
(6) Where any raw cashewnuts are sold under sub-section (2), the sale proceeds thereof, after deducting the expenses if any of such sale or other incidental expenses relating thereto shall be kept under revenue deposit subject to the orders of the Court if a prosecution is instituted for the contravention of this Act, or of the concerned Inspector who seized the raw cashewnuts if no prosecution is instituted.
(7) No order for sale of raw cashewnuts shall be passed under this section, unless the person from whom the same is seized, is given an opportunity of being heard in the matter.".
5. Amendment of section 6.- For section 6 of the principal Act, the following section shall be substituted, namely :-
"6. Penalties.- If any person contravenes or attempts to contravene or abets the contravention of the provisions of section 4, or of any rule made under this Act, he shall be punished with imprisonment for a term which may extend to two years but which shall not be less than six months and with a fine which may extend to one lakh rupees but which shall not be less than twenty five thousand rupees and in the case of repeated contravention with an additional fine which may extend to ten thousand rupees for every such contravention.".
6. Amendment of section 8.- In section 8 of the principal Act, after the words “were found”, the words “and the machines, equipments and other instruments used for such contravention” shall be inserted.
R.L.BHATIA,
GOVERNOR
STATEMENT OF OBJECTS AND REASONS
The existing provisions of the Unregistered Cashewnut Factories Prohibition Act, 1967 does not contain any provision for the speedy disposal of the cashewnuts seized under the Act. Cashewnut is a perishable seed. Hence Government have decided to incorporate section 5A in the parent Act, enabling the authority seizing cashewnuts, early disposal, so as to avoid perishing of the cashewnuts seized due to delay in finalising the proceedings after seizure.
2. Besides, processing of cashewnuts in an unregistered Cashew Factory is prohibited under the Unregistered Cashewnut Factories (Prohibition) Act, 1967. Inspite of this statutory prohibition, several unregistered Cashewnut Factories, processing cashewnuts are still there in the State and they are functioning without giving the statutory benefits due to the workers. The existing provisions in the above said Act are not sufficient, to prohibit completely the functioning of unregistered Cashewnut Factories in the State. Therefore, the Government is intending to enhance the punishment prescribed in the Act by amending section 6 and to make the punishment for violation of the provisions of the Act more stringent.
3. The Bill seeks to achieve the above objects.
FINANCIAL MEMORANDUM
The Bill, if enacted and brought into operation would not involve any expenditure from the Consolidated Fund of the State.
P.K.GURUDASAN
Extract of the Unregistered Cashewnut Factories
Prohibition Act, 1967
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5. Powers of Inspectors.- (1) An Inspector may, if he has reasons to believe that processing of cashewnuts in contravention of section 4 is being, or is about to be, carried on in any premises,-
(a) enter such premises, if necessary by force, at any time for the purpose of search of the premises;
(b) seize any cashewnuts in respect of which the provisions of section 4 are being, or are about to be, contravened, along with the package, covering or receptacle, if any, in which such cashewnuts are found;
(c) seize any books of account, return or any other document relating to any cashewnuts in respect of which the provisions of section 4 are being, or are about to be, contravened.
(2) The provisions of the Code of Criminal Procedure, 1898 (Central Act 5 of 1898), relating to search and seizure shall, so far as they are applicable, apply in relation to search and seizure made under this section.
6. Penalties.- If any person contravenes or attempts to contravene or abets the contravention of the provisions of section 4, or of any rule made under this Act, he shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both; and in the case of a continuing contravention, with an additional fine which may extend to one hundred rupees for every day during which such contravention continues after conviction for the first such contravention.
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