STATE OF GUJARAT Vs. HARISH B MORE

JUDGEMENT

(1.) BY way of the present appeal under Section 378 of the Code of Criminal Procedure, 1973 ("the Code" for short), the appellant -State has questioned the legality and validity of the impugned judgment and order of acquittal dated 21.8.1998 passed in Criminal Cases Nos. 4691/86 and 4692/86 by the learned Metropolitan Magistrate, Court No. 4, Ahmedabad.

(2.) THE facts of the case, briefly summarized, are that the Factory Inspector Shri N.N. Rao visited the factory premises of M/s. Shakti Enterprises, Survey No. 155/2 situated at Kubernagar and found that the factory premises was required to be registered under Sec. 85 of the Factories Act, 1948. Further, for the use of the premises and machinery for the purpose of the factory, the approval of the Factory Inspector was not obtained and thereby the provisions of the Factories Act and the rules were violated. It is alleged that at the time of his visit, there were 5 workers working in the factory which was run with power for making hosiery products. It is also alleged that the factory was engaged in manufacture of hosiery products with the use of power and it also used acid and, therefore, Sec. 6(1)(d) of the Factories Act, 1948 read with Rule 4(1) of the Gujarat Factories Rules, 1963 were violated and thereby committed an offence under Sec. 92 of the said Act. It is on the basis of this the Factory Inspector made a report and lodged the complaint for the alleged violation of the provisions of law, i.e., the Factories Act and the rules made thereunder for which Criminal Case Nos. 4691/86 and 4692/86 were registered. Summons were issued to the owner and as the owner of the factory did not admit the guilt and claimed to be tried, the charge was framed and it was tried as a summary trial under the provisions of Cr.P.C.

(3.) THE main thrust of the prosecution case was that there were 5 workers working in the factory premises which was engaged in manufacturing hosiery products and have also used acid for which the procedure had not been followed and the provisions of Sec. 6(1)(d) of the Factories Act r/w sec. 4 was violated and thereby committed offence under Sec. 92 of the said Act. Further, the factory was required to be registered under sec. 85 and as it has not been registered and also had not taken necessary approval of the Factory Inspector, the rules were violated and therefore an offence under sec. 92 was committed. The learned Metropolitan Magistrate recorded the plea and the accused came to be tried. The learned Metropolitan Magistrate proceeded with the trial as provided in Cr.P.C. and recorded the acquittal of the accused, which has been assailed by the appellant -State in the present appeal on the grounds narrated in detail in the memo of appeal, inter alia, that the learned Metropolitan Magistrate has failed to appreciate that the prosecution had examined one material witness, who is a public servant and there was no reason to disbelieve him. Further, it has been contended that the learned Metropolitan Magistrate has failed to appreciate that the Factory Inspector had, in his deposition, referred to various documents and material on the basis of which the facts were proved and the conviction could have been recorded instead of acquittal. It has also been contended that the learned Metropolitan Magistrate has erred in appreciating the material and evidence on record and erroneously recorded the acquittal on the ground that the prosecution has failed to establish about the violation of provisions of the Factories Act and the Rules made thereunder. Learned APP Mr. K.T. Dave has referred to the material and evidence on record. He referred to the deposition and also the impugned judgment and submitted that, admittedly, there were 5 workers working at the time of the visit of the Factory Inspector and the premises/factory was engaged in manufacturing hosiery products with the use of power and acid was also used in the process. The learned APP referred to Sec. 85 (Chapter IX) of the Factories Act, 1948 and particularly clause (i) of Sec. 85, which provides,