MOHD. YAMIN AND ANOTHER Vs. STATE

JUDGEMENT

(1.) THIS is a reference made by a civil and Sessions Judge, Saharanpur, to this Court Under Section 438 Code of Criminal Procedure against the conviction of the two accused persons, Mohd. Yamin and Mohd. Zakaria, Under Section 35 of the UP Dookan Aur Vanijya Adhishthan Adhiniyam, 1962, (hereinafter referred to as the Act) and the sentence of Rs. 25/ - fine passed on each of them for infringing the provisions of the Act.

(2.) THE complainant, Sri N.B. Saxena (PW 1), Labour Inspector of Saharanpur, had visited the shop, known as M/s. Mohd. Yamin and Mohd. Zakaria, Chauk Fountain, Saharanpur, which is said to be run by the accused persons as "employers" within the meaning of the term as used in the Act. The Labour Inspector found the shop of the accused persons open at 8.30 p.m. on 30 -3 -1954 when some weighing of goods was also taking place there. The accused persons were absent at that time. The accused pleaded that the shop was only open for purposes of stuck taking and verification of accounts as the close of the accounting year was at hand. The complaint was based merely upon the allegation that the above mentioned shop was found open at 8.30 p.m. on 30 -3 -1964 so that the accused had violated the provisions of Section 5 of the Act regulating the hours of business.

(3.) THE trying magistrate accepted the defence version that the shop was open only for verification of accounts and that payment was made for the work beyond time to an employee named Satnam Rai (PW 1). This employee had stated that he had worked from 8 p.m. to 11 p.m. for verification of accounts and was paid for the three hours' work for employment beyond time. The trying magistrate, after observing that even if the shop was open for verification of accounts upto 11 p.m., the employers were guilty of contravening the provisions of Section 6 of the Act, finally convicted the accused persons only for keeping the shop open beyond 8 p.m. Hence, the learned Sessions judge in his referring order has quoted Section 2, Sub -section (13) of the Act which reads as follows: