STATE OF MAHARASHTRA Vs. BHIWANDIWALLA A H

JUDGEMENT

(1.) THESE two appeals arise from orders of acquittal passed by the learned Chief Presidency Magistrate in favour of the respondent. In both the cases the respondent was charged under S. 92 of the Factories Act (Act LXIII of 1948 ). The respondent is the occupier of Wadia Mahal Salt Works which, according to the prosecution case, is a factory as defined under S. 2 (m) of the Factories Act. This factory is situated near Koliwada, Sion, Bombay 22. In the case from which criminal appeal No. 761 of 1954 arises, the charge against the respondent was that, before occupying or using the said premises as a factory, he had failed to submit to the Chief Inspector of Factories, Bombay State, a written notice of occupation in form No. 3 as required under S. 7 (1) of the Factories Act, and the rules made thereunder. In the companion case from which criminal appeal No. 762 of 1954 arises, the charge was that the respondent had failed to submit to the Chief Inspector of Factories an application in form No. 2 for registration of the factory and grant of licence as required under S. 6 of the Factories Act read with rule 4 of the Bombay Factories Rules, 1950. It appears that the learned Chief Presidency Magistrate was about to take the pleas of the respondent to the two charges framed against him when it was brought to his notice by the accused that one of his pleas was that the prosecution in both in cases was barred by limitation under the provisions of S. 106 of the Factories Act. The learned Chief Presidency Magistrate was disposed to accept this plea and so he had held in both the cases that the prosecution is barred by limitation. In the result, he has acquitted the respondent of the offences charged. That is how the only question which arises before us in these two appeals is whether the learned Chief Presidency Magistrate was right in coming to the conclusion that the prosecution against the respondent in both the cases was barred by limitation.

(2.) BEFORE dealing with this question, it would be convenient to refer to some more facts. In the complaint which has been filed against the respondent by the inspector of factories it has been alleged that the complainant had visited the factory on 23 May, 1953, at about 10 a. m. and he had found that the factory was working. The complainant noticed that the workers shown in the list atached to the complaint were working in the factory and that common salt was being manufactured from sea water by evaporation in the pans. A pump driven by an oil engine of 9 h. p. was also seen to be in use. It is common ground that the inspector has visited this factory on an earlier occasion on 10 March, 1952, and on 14 March, 1952, the occupier had been called upon to comply with the requirements of the Factories Act in respect of this factory. The occupier took on steps to comply with the requisition and it was found on the second visit which the inspector paid to the factory on 23 May, 1953, that the factory was working without complying with the requisition which had already been served on the occupier. It would thus be seen that, if the present complaints are held to be in respect of the offence which was discovered by the inspector on his first visit to the factory on 10 March, 1952, the prosecution of the respondent would be clearly barred by limitation. On the other hand, if it is held that the failure of the respondent to comply with the requisitions served on him and his conduct in running the factory without complying with the said requisitions constitutes a continuing offence, then the prosecutions would not be barred by limitation.

(3.) AT this stage it would be relevant to consider the material provisions of the Factories Act. This Act came into force on 23 September, 1948. Section 6 of the Act lays down the procedure in regard to the approval, licensing and registration of factories. By this section the Provincial Government is authorized to make rules in respect of the matters set out in Sub-cls. (a) to (e) of Sub-section (1) of the said section. Rule 3 to 11 have accordingly been framed by the local Government in that behalf. Rule 3 requires an application for obtaining previous permission for the site on which the factory is to be situated and for the construction or extension of a factory. Form No. 1 prescribes the details which have to be mentioned in the said application. Sub-rule (2) of rule 3 provides that, if the Chief Inspector is satisfied that the plans are in consonance with the requirements of the Act, he shall, subject to such conditions as he may be specify, approve them by signing and returning to the applicant one copy of the each plain; it would also be open to the Chief Inspector to call for further particulars before granting his approval. Rule 4 then provides for the application for registration and grant of licence. In the present appeals we are concerned with the provisions of this rule. According to this rule the occupier of every factory, whether in existence at the date of the commencement of the Act or coming within the scope of the Act, after its commencement shall submit to the Chief Inspector an application in form No. 2 for the registration of the factory and grant of a licence; and the application shall be accompanied by the notice of occupation in from No. 3 in triplicate prescribed under S. 7, provided that the occupier of premises in use as a factory on the date of the commencement of the Act shall submit such application within thirty days from the date of the commencement of the rules. Section 7 of the Act provides that the occupier shall, at least fifteen days before he begins to the occupy or use any premises as a factory, send to the Chief Inspector a written notice setting out the details mentioned in the said section. It would thus be noticed that, where as in regard to a factory which would be established after the commencement of the Act the occupier is required to give a notice to the inspector at least fifteen days before he begins to occupy to use the premises in question as a factory, the legislature knew that many factories were in existence before the commencement of the Act and so in respect of these factories the rule 4 provides a period of thirty days from the date of commencement of the rules within which the requisite notice has to be given by the occupiers of such factories. It is common ground that in the present case on such notice has been given in form No. 2 or in form No. 3 and no licence has been applied for or obtained in respect of the factory in question. Rule 5 then provided for the grant of licence; rule 6 lays down the manner in which the licence can be amended; rule 7 deals with the renewal of licence; and rule 8 deals with the transfer of licence. Rule 9 lays down the procedure to be followed in case the licence dies or becomes insolvent. Cases of loss of licence are dealt with in rule 10, while rule 11 deals with the payment of fees. Rule 12 lays down that the notice of occupation shall be made in form No. 3.