ABDUL GANI ABDUL SHAKOOR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This is an application filed by the accused against the order of conviction and sentence passed by the learned Presidency Magistrate 19th Court, Esplanade, Bombay, under S. 52 of the Bombay Shops and Establishments Act, 1948, on two counts falling under S. 7, Sub-section (1) of the Act and rule 18, Sub-rule (14) made under the Act.

(2.) The case of the prosecution was that the accused was holding a licence issued under S. 313 of the Bombay Municipal Act which is called the hawkers and squatters licence and in pursuance of which he sold his wares in a particular area, the dimensions of which were mentioned in the licence. According to the licence inspector, the pitch for the stall of this accused was fixed as pitch for the stall of this accused was fixed as pitch No. 22 and the accused could not move his stall from that pitch to any other pitch without the permission of the superintendent of licences. This fact was admitted by the accused in his statement before the Court. It was not disputed that the stall which was put up by the accused on the space allotted to him under the licence had four poles and according to the licence inspector it had also a temporary roof which was there all the year round. The accused contended that the place at which he sold his wares did not come within the definition of the word "shop" as given in the Shops and Establishments Act. Accordingly, he submitted that he was not liable to send any statement as contemplated by S. 7(1) of the Act, nor was he liable to maintain any visit book as contemplated by Sub-rule (14) of rule 18 made under the Act. The learned Magistrate, however, on consideration of the relevant provision of the Act as well as some authorities, came to the conclusion that the stall in which the accused was carrying on his retail trade in fruits constituted "premises" within the meaning of Sub-section (27) of S. 2 of the Act and that, therefore, it was obligatory upon the accused to comply with the provisions of the S. 7(1) of the Act as well as those of Sub-rule (14) of rule 18 made under the Act. Accordingly, the learned Magistrate found the accused guilty under the two counts falling under S. 7(1) of the Act and rule 18(14) of the rules made under the Act each of which constituted an offence under S. 52 of the Act and sentenced him to pay a fine of Rs. 25 or in default to undergo simple imprisonment for five days on each count. It is against this order of conviction and sentence of the learned Magistrate that the accused has filed the present application to this Court.

(3.) It was contended by Sri Paranjape on behalf of the accused that the learned Presidency Magistrate was in error in having held that the stall in which the accused was carrying on his retail trade in fruits on the space allotted by the municipality under the licence granted to him was a "shop" within the meaning of the expression under the Shops and Establishments Act, 1948. He urged that in holding that the stall which was utilized by the accused for the purpose of his retail trade in fruits constituted a "shop" within the meaning of the Act, the learned Presidency Magistrate overlooked certain conditions of the licence granted to the accused by the municipality for the purpose of carrying on his trade. He invited our attention to several conditions of the licence. The conditions to which our attention was drawn are as follows :