STATE OF MAHARASHTRA Vs. SHAMUSDDIN BANGADIWALA

JUDGEMENT

(1.) This is an appeal by the State against the order of acquittal of the respondent original accused No. 2, of the offence under section 394(1)(e)(i) of the Bombay Municipal Corporation Act, 1888. The respondent and the other accused who has been convicted are partners of Messrs Associate Engineering Works at M.N.T. Compound in Andheri. On July 11, 1974, Shri C.K. Savant, the Beat Inspector of the Bombay Municipal Corporation, visited the premises in response to application submitted by the concern that they wanted to keep two sets of gas cylinders for gas welding work in their premises. They had, therefore, requested the Corporation to include the said item in their existing permit for the year 1973-74. It appears that no action was taken in this application dated May 9, 1973 till July 11, 1974 when Shri Sawant visited the factory. At the time of the visit, accused No. 1 along was present in the premises, and it was noticed by the Beat Inspector that welding was going on in the premises in the area of 10 square meters. As the accused did not hold the requisite licence for carrying on the welding work in the factory compound, they were prosecuted for the offence under section 394(1)(e)(i) of the Act. The learned Magistrate found the accused No. 1 guilty of the offence and sentenced him to pay a fine of Rs. 200. As regards accused No. 2, he was given benefit of doubt on the ground that he was not present on that day in the premises at the time when the welding was found to be going on. The State has challenged the order of acquittal of accused No. 2.

(2.) Mr. Hudlikar, the learned Public Prosecutor, submitted that both the accused were partners of the firm and both of them must therefore be held liable for the offence. He submitted that the mere fact that accused No. 2 was absent at the time of the visit of the Beat Inspector cannot be a ground for his acquittal. According to him, no distinction can be made between the two accused as admittedly both of them were partners and the evidence of the Inspector clearly shows that welding was going on at the time of his visit and that they did not have a requisite licence.

(3.) Section 394 of the Act inter alia, provides that except under and in accordance with the terms and conditions of the licence granted by the Commissioner, no person shall carry on, or allow or suffer to be carried on, in or upon any premises, any of the trades specified in Part IV of Schedule M, or any process or operation connected with any such trade. In Schedule M, Part IV, the item Welding of Metal by electric; gas or any process whatsoever" is included.