1 cr-wp-2550-09 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI.W.P. NO. 2550 OF 2009 Shilpa Doshi & Anr. ..Petitioners Vs. State of Maharashtra and Anr. ..Respondents .... Mr. A.A.Pandey i/b A.R.Pande Adv. for Petitioners Mr. S.A.Shaikh APP for State Smt. Seema Rawade Adv. for respondent no.2-B.M.C. .... CORAM : SMT.V.K.TAHILRAMANI, J. DATE : OCTOBER 13, 2010 P.C.: 1 Heard the learned advocate for the petitioners and the learned advocate for the respondent no.2-B.M.C.. 2 The petitioners have challenged the order of the learned Metropolitan Magistrate Girgaum, Mumbai whereby process came to be issued against them for the offence punishable under Section 52 of the Bombay Shops and Establishment Act, 1948. 3 The complaint came to be filed by the respondent-corporation against the petitioners for the offence under Section 52 of the Bombay 2 cr-wp-2550-09 Shops and Establishment Act, 1948 for contravening Section 7(1) of the Act and Rule 20(5) of the Bombay Shops and Establishment Rules. The case against the applicants is that they have failed to get their establishment registered. 4 The learned advocate for the petitioners submitted that the business of petitioners is distribution of LPG gas cylinders. He submitted that only commercial establishments are required to be registered under Section 7(1) and the petitioners ’ establishment is not a commercial establishment, hence, the establishment would not be required to be registered. To support his contention, he placed reliance on Section 2(4) wherein commercial establishment has been defined. The relevant portion from Section 2(4) reads as under: “2(4) `Commercial establishment ’ means an establishment which carries on, any business, trade or profession or any work in connection with, or incidental or ancillary to, any business, trade or profession and includes establishment of any legal practitioner, medical practitioner, architect, engineer, accountant, tax consultant or any other technical or professional consultant and also includes a society registered under the Societies Registration Act, 1866 (XXI of 1860) and a charitable or other trust, whether 3 cr-wp-2550-09 registered or not, which carries on whether for purpose of gain or not, any business or trade or profession or work in connection with or incidental or ancillary thereto but does not include a factory, shop, residential hotel, restaurant, eating house, theatre or other place of public amusement or entertainment. ” 5 Admittedly, the petitioners are distributors of LPG gas Cylinders. Their business is distribution of gas cylinders. It cannot be said that they are not carrying out any trade or business in their premises because this distribution work done by them generates income i.e. by way of commission on each cylinder. It is well known that all distributors get the commission on each cylinder. Thus in such case, it cannot be said that they are not carrying on business in the said premises. 6 The learned advocate for the petitioners submitted that they are storing LPG cylinders for Bharat Petroleum and only Bharat Petroleum the initial supplier, is a commercial establishment and Bharat Petroleum would fall under definition of commercial establishment. It would not be necessary to go into the issue whether Bharat Petroleum is a commercial establishment or not because it is a matter of common 4 cr-wp-2550-09 knowledge that all distributors of LPG cylinders get commission on every cylinder distributed by them. Looking to this fact, it can certainly be said that the petitioners are carrying on business of distribution of gas cylinders. To carry on such business, it is necessary to store cylinders, which is an activity incidental to the business and hence, the establishment of the petitioner, can be said to be a commercial establishment which would be covered by Section 2(4) of the Act. In view of the fact that it is covered by Section 2(4) of the Act, they would be required to be registered under Section 7. Not having done so, an offence is made out under section 7 punishable under Section 52 of the Act. Hence, no case is made out for quashing of process. 7 Petition dismissed. [ SMT. V.K.TAHILRAMANI, J.]