RAM CHANDER BARU RAM Vs. STATE

JUDGEMENT

(1.) THIS is a petition for revision and is directed against the conviction and sentence of the petitioner under Section 26 of the Punjab Shops and Commercial establishments Act, 1958 (No. 15 of 1958 ). Henceforth this Act will be referred to as the Act.

(2.) THE petitioner Ram Chander is a salesman of Lipton Tea Company Limited. This company has salesmen stationed at various places in the Punjab. The place where ram Chandar, at the relevant time, was stationed was Kalka. The company takes on rent godowns where tea is stocked, either in tins or in packets. The salesmen at various depots are not allowed to sell tea at the go-downs or even to book orders at the godowns. What happens at the godowns is that tea is taken out for delivery to the customers in the market where the godown is situate or to markets which are attached to the godown. These markets may be in the rural area or in towns. It may be pointed out that the Act has not been extended to rural areas. The salesman maintains his books in the godown. The tea received, the tea sold and the sale proceeds received by such salesmen are entered in these books. Statements to this effect are also prepared at the godown and are sent to the head office of the company. Beyond this nothing further happens at the godowns. The procedure for sale prescribed by the company is that the salesman hires out a push-cart or some other kind of transport, puts the tea packets in that vehicle and proceeds to the bazar where his customers are, they being the regular shopkeepers who vend such articles or hotels, restaurants and tea shops. He moves from door to door and either books orders for supply later or gives them the instant supply and receives the price. Whatever quantity of tea is left unsold, he brings it back and stores it in the godown. Thus it will be seen that at the godown besides writing accounts and similar statements all that happens is that the tea is either taken out or is put back. No actual selling or any kind of business deal takes place at the godown. No orders are booked there. The entire business is conducted by the salesman outside the godown. In view of the provisions of section 25 of the Act this business cannot be conducted outside the opening and the closing hours. At the relevant time the opening and the closing hours were 9. 00 a. m. to 7. 45 p. m.

(3.) THE present prosecution is based on the following facts: On the 9th December, 1958, the petitioner opened the godown at 8. 45 a. m. He was according to the inspector found selling one-pound packet of tea at the premises of the depot to a customer. On this the petitioner was challaned by the Shop Inspector Harkarnail singh. This complaint came up for trial before a Magistrate stationed at chandigarh, who convicted the petitioner under Section 26 of the Act. The petitioner came up in revision to this Court. His revision was allowed and it was directed that the petitioner be retried. On retrial the case was heard by Magistrate 1st Class, Jagadhri. Before the learned Magistrate two contentions were raised by the petitioner, namely, -