STATE OF MAHARASHTRA Vs. S S SHETTY

JUDGEMENT

(1.) The State of Maharashtra has filed this appeal and challenged the order passed by the learned Judicial Magistrate, First Class, panvel, Raigad dated July 10, 1991 in summary Case No. 1935 of 1989 acquitting the respondent accused from the offence under Rule 65 (3) (i) (a) of the Maharashtra Factories Rules, 1963. Shri Galeria, the learned A. P. P. appearing for the appellant-State took me through the paper-book consisting of the complaint filed by the Factory Inspector Shri Umare against the respondent accused before the learned Judicial Magistrate, First Class at Panvel dated September 16, 1989 and the evidence of the prosecution witness No. 1 Shri pundalik Tukaram Umare viz. the complainant and the evidence of P. W. 2 Shri madhav Krishna Divekar at Exhibit 22 and, the documentary evidence viz. report of the complainant in respect of his visit to the factory of the respondent dated June 22, 1989 and the show cause notice issued to the respondent and the reply furnished by the respondent accused to the said show cause notice and the other documents and the judgment of the learned Magistrate acquitting the accused.

(2.) Shri Galeria, the learned A. P. P. while taking me through the evidence and the documents, has vehemently urged that the learned Magistrate was not right in acquitting the accused when as per evidence of the complainant and prosecution witness No. 2, the prosecution has proved that the respondent accused has contravened the provisions of Rule 65 (3) (i) (a) of the Maharashtra Factories Rules, 1963 which is punishable under Section 92 of the Factories Act. Shri Galeria has contended that even considering defence of the accused, the respondent accused has not denied the visit made by the Factory Inspector on June 22, 1989 and during his visit he found certain irregularities and the respondent accused was called upon by issuing show cause notice and even in reply to the said show cause notice as found that the respondent accused has in terms admitted the fact that the safety valves were not there along with the other irregularities. He accordingly submitted that the learned magistrate has failed to consider evidence of the prosecution witnesses coupled with defence of the accused wherein the accused has also not denied such violation of Rules under the factories Act which is punishable under Section 92 of the Factories Act and according prayed that the order of acquittal deserves to be set aside.

(3.) Shri Ghadge, the learned advocate appearing for the respondent has supported the order of learned Magistrate and he contended that in view of the evidence and admittedly the factory was inspected by the complainant Factory Inspector on June 22, 1989 and in reply to the show cause notice the accused had explained the situation for not providing the safety valve in the factory and further it is also brought to the notice of the complainant that necessary orders were also placed for providing such safety valve and even such valves were not readily available in the market and in reply the accused has prayed for time for about four to six weeks to attach the safety valve and further that even in cross-examination p. W. 1 complainant has admitted that seven days' time was given to the Manager to explain the irregularity and without waiting the complainant had filed the complaint and the same is rightly dismissed by the learned Magistrate by giving cogent reasons and thereby this Court is not required to interfere with the order of acquittal recorded by the learned Court and prayed for dismissal of the appeal. While considering the submissions as contended before me by the learned advocate appearing for the parties, it is necessary for the to examine the order of acquittal recorded by the learned Magistrate in light of the evidence led by the prosecution as found from the complaint dated September 16, 1989, it is case of the complainant that the complainant had visited and inspected the factory of the respondent on June 22, 1989 and during his inspection he found certain irregularities by not following requirements of the provisions of the Factories Act and the Rules. It is the positive case of the complainant that the respondent accused has contravened provisions of Rule 65 (3) (i) (a) of the Maharashtra Factories Rules, 1963. It is the positive case of the complainant and as found from the report when the respondent accused were to show cause in respect of breach of the provisions of the Factories Rules, it is the case of complainant that in the factory there were three reactors each having the capacity of 3.5 MT each and in these reactors PEG (polyethylene glycol) and a Catalyst is heated with steam to 12 - 125 degree centrigrade. Then ethylene oxide, highly flammable gas is passed steadily exothermic reaction occurs which tends to raise the temperature which is controlled at 130 degree c by circulating cold water. Above the reaction mixture a nitrogen blanket is maintained by passing nitrogen at 1.5 to 2. 00 kg. /cm. 2 pressure. Thus reactor is a pressure vessel as defined in Rule 65 (1) (d) and the plant is a pressure plant. As found from the report that none of the three reactors had pressure tank with safety valves to relieve the accidental build up of the excess pressure. Accordingly the accused has contravened the provisions of Rule 65 (3) (i) (a) of the Maharashtra Factories Rules, 1963 and has committed an offence punishable under Section 92 of the Factories Act, 1948. In respect of the visit made by the complainant, P. W. 1, as found in his deposition, Exhibit - 10 and as per his evidence the complainant is a graduate in Chemical Engineering and he was working with the inspection Department and he visited factory of the respondent accused on June 22, 1989. In his deposition he has referred to about what was found which was reflected in the complaint and it is the case of the complainant in his evidence that the respondent in his factory has not provided three pressure valves in three different reactors. In his deposition he has also proved the report submitted in respect of the inspection carried out on June 22, 1989 and the had report is proved which is found at Exhibit 12 respondent has violated the provisions of the Factory Rules, the complainant gave show cause notice to the accused on June 26, 1989 and the same was served on the accused. The office copy of the show cause notice is also proved and it is found at Exhibit 30. He has also produced acknowledgment of the notice which was served on both the accused and this acknowledgment receipt is also proved at exhibit 14. In reply to the show cause notice, the respondent had submitted compliance report in favour of the Factory Inspector as per letter dated July 26, 1989. As found from Exhibit 16, the compliance report submitted by the respondent accused in respect of the inspection report and more particularly in respect of not fitting safety valves, it is their reply which I reproduce as under: