IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 24TH MARCH 2009 / 3RD CHAITHRA 1931 Crl.Rev.Pet.No. 306 of 2002() ----------------------------- CRA.26/1996 of SESSIONS COURT, KALPETTA ST.1754/1992 of CHIEF JUDICIAL MAGISTRATE, KALPETTA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- K.T.PAUL, MANAGING PARTNER, BLUE DIAMONDS, P.O.KAMBALAKKAD, WAYANAD DISTRICT. BY ADV. SRI.PHILIP M.VARUGHESE SRI.BIJISH B.TOM RESPONDENT(S): RESPONDENT/COMPLAINANT ------------------------------------- 1. THE INSPECTOR OF FACTORIES, TELLICHERRY. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. R. BINDU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/03/2009, THE COURT ON 24.3.2009 PASSED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No. 306 of 2002 - - - - - - - - - - - - - - - - - - - - - - Dated this the ...th day of March, 2009 O R D E R This Revision Petition is filed by the accused in S.T.C. No. 1754 of 1992 on the file of the Chief Judicial Magistrate Court, Kalpetta. 2. The case of the complainant, as revealed from the complaint, is as follows. The complainant is the Inspector appointed under Section 8(1) of the Factories Act, 1948 (for short 'the Act'). He is having jurisdiction over Thalasserry Factory Division, which consists of the Revenue District of Wayanad, Thalassery Taluk of Kannur District and Vatakara Taluk of Kozhikode Revenue District. 'Blue Diamonds', Kambalakkad P.O. is a factory, coming under Section 2m(1) of the Factories Act. The said factory is not registered under the Factories Act. Accused is the occupier of that factory, as defined under Crl.R.P.No. 306 of 2002 2 Section 2n(1) of the Act. He is also the Manager of the factory under Section 7(5) of the Act. 3. On 28.12.1991, at about 2.30 p.m. when the complainant inspected that factory, 22 men and 2 women were found engaged in the manufacturing process (polishing of Diamonds) with the help of 11 H.P. Motor. It was also noticed that the factory was working without obtaining previous permission for constructing a building and erecting machinery for using the same as a factory and without a valid licence under the Factories Act and the Rules. 4. In the Magistrate's court PWs. 1 and 2 were examined and Exts.P1 to P13 were marked. Considering the evidence, the facts and circumstances of the case and the nature of the offence committed by the accused, the learned C.J.M. convicted the accused under Section 92 of the Factories Act and sentenced to pay a fine of Rs.50,000/- In case of default to pay the fine, he was sentenced to undergo simple imprisonment for a period of six months. In case the contravention is continued after that Crl.R.P.No. 306 of 2002 3 date, he was directed to pay a fine at the rate of Rs.1,000/- for each day on which the contravention is continued. 5. Against that conviction and sentence, the accused filed Crl.A.No. 26 of 1996 before the Sessions Court, Kalpetta, which was allowed in part. The conviction under Section 92 of the Act was confirmed and the sentence of fine imposed is reduced to Rs.20,000/- and in default to undergo S.I. for a period of three months. Against that judgment, the accused filed this revision petition. 6. Heard the learned counsel for the revision petitioner and the learned counsel for the respondents. 7. The learned counsel for the revision petitioner submitted that the complaint filed by PW1 is barred under Section 106 of the Act, as the complaint was filed after three months of the detection of the offence. PW1 inspected the premises on 28.12.1991 and he filed inspection report on 30.12.1991. The complaint was lodged on 18.5.1992, after the Crl.R.P.No. 306 of 2002 4 period of three months. Since the offence is a continuing one, as observed by the learned Sessions Judge, there is no bar of limitation. 8. The learned counsel for the petitioner submitted that as no manufacturing process is carried out in the factory, known as Blue Diamonds, the same does not come within the scope of the Factories Act. This argument is not sustainable, as the definition of 'factory' makes it clear that the present concern will also come within the definition of factory. PW1 is the Factory Inspector of Thalasserry. He swears that on 28.12.1991 at about 2.30 p.m. he inspected the Blue Diamonds Factory at Kambalakkad and at that time he found 22 men and 2 women employees engaged in the manufacturing process i.e. diamond polishing with the aid of 22.5 HP motor. At the time of his inspection, the accused was there. PW1 prepared Ext.P3 inspection report and obtained signature of the accused in it. He noticed that the accused had failed to obtain previous permission in writing from the Director of Factories and Boilers, Thiruvananthapuram, for using that Crl.R.P.No. 306 of 2002 5 building as a factory. He also noticed that the accused had failed to get the factory registered and licensed by the Chief Inspector of Factories and he carried out manufacturing process (polishing of diamonds) without taking valid licence from the Chief Inspector of Factories. He demanded many times to the accused to rectify those defects. But the accused had not complied with it. Hence on 10.2.1992, a show cause notice was sent to the accused. The accused submitted Ext.P7 application, requesting fifteen days time to rectify the defects and time was granted. But the accused had not sent any reply and not cared to rectify the defects. 9. On perusing the judgments of the courts below, I am of the view that the courts below arrived at a right conclusion, on properly appreciating the evidence on record. Therefore, I am of the view that the accused has committed the offence punishable under Section 92 of the Factories Act. The learned counsel for the revision petitioner submits that as the factory was closed, a lenient view may be taken with regard to the Crl.R.P.No. 306 of 2002 6 sentence. Considering the facts and circumstances of the case, I am of the view that the sentence to pay a fine of Rs.20,000/- has to be reduced to Rs.10,000/-, which would meet the ends of justice. 10. This Crl.R.P. is accordingly allowed in part. The conviction of the accused in S.T.C. 1754 of 1992 on the file of the C.J.M., Kalpetta under Section 92 of the Factories Act is confirmed. The sentence to pay a fine of Rs.20,000/- is reduced and the accused is sentenced to pay a fine of Rs.10,000/- and in default to undergo S.I. for a period of three months. The C.J.M., Kalpetta is directed to execute the modified sentence. (M.L. JOSEPH FRANCIS) Judge tm