N USMAN Vs. ASSISTANT LABOUR OFFICER TELLICHERRY

JUDGEMENT

(1.) In a prosecution under the Kerala Shops and Commercial Establishments Act, 34 of 1960, the revision petitioner, who was the proprietor of Lotus Reva Stores at Tellicherry, was convicted under S.11(1) read with S.29 of the Act for not keeping closed his shop on January 24, 1971, a day of the week which had been specified to be holiday and was sentenced to pay a fine of Rs. 25/- and in default to undergo simple imprisonment far two weeks. The word 'closed' as defined in S.2(3) of the Act means "not open for the service of any customer or open to any business connected with the establishment'' and the word "opened" as defined in S.2(11) means "opened for the service of any customer or to any business connected with the establishment." A shop may remain closed even if physically its doors remain open. There are several shop keepers who reside in their shops. For them and their friends and relations to come in and go out it is necessary that the doors should remain open. Therefore from the mere fact that the doors of the shop remain open it cannot be taken that the shop is not "closed" as defined in the Act. The shop can be deemed to be open under the Act only if it is open for the service of a customer or to any business connected with the establishment. In the present case it is the evidence of the complainant, the Assistant Labour Officer, who was examined as Pw. 1, that is relied upon by the Magistrate, who tried the case, for finding that the shop was open. Although Pw. 1 said in chief examination that she saw trade being conducted in the shop she admitted in cross examination that there was nobody there whom she knew and that she made no enquiry as to who were the persons who were then there and for what purpose they had come there. In such circumstances it is unsafe to act on her evidence and hold that the shop was not closed on that day. Hence this revision petition is allowed, the conclusion and sentence of the revision petitioner are set aside and he is acquitted. Fine, if paid, shall be refunded to him.