CR.A/117419/1998 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1174 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= STATE OF GUJARAT - Appellant(s) Versus HARISH B MORE - Opponent(s) ========================================= Appearance : MR KT DAVE, ADDL. PUBLIC PROSECUTOR for Appellant(s) : 1, MR AY KOGJE for Opponent(s) : 1, ========================================= CORAM : HONOURABLE MR.JUSTICE RAJESH H.SHUKLA Date : 06/10/2008 ORAL JUDGMENT By way of the present appeal under Section 378 of the Code of Criminal Procedure, 1973 (“the Code” for short), the CR.A/117419/1998 2/10 JUDGMENT appellant-State has questioned the legality and validity of the impugned judgment and order of acquittal dated 21.8.1998 passed in Criminal Cases Nos. 4691/86 and 4692/86 by the learned Metropolitan Magistrate, Court No. 4, Ahmedabad. 2. The facts of the case, briefly summarized, are that the Factory Inspector Shri N.N. Rao visited the factory premises of M/s. Shakti Enterprises, Survey No. 155/2 situated at Kubernagar and found that the factory premises was required to be registered under Sec. 85 of the Factories Act, 1948. Further, for the use of the premises and machinery for the purpose of the factory, the approval of the Factory Inspector was not obtained and thereby the provisions of the Factories Act and the rules were violated. It is alleged that at the time of his visit, there were 5 workers working in the factory which was run with power for making hosiery products. It is also alleged that the factory was engaged in manufacture of hosiery products with the use of power and it also used acid and, therefore, Sec. 6(1)(d) of the Factories Act, 1948 read with Rule 4(1) of the Gujarat Factories Rules, 1963 were violated and thereby committed an offence under Sec. 92 of the said Act. It is on the basis of this the Factory Inspector made a report and lodged the complaint for the alleged CR.A/117419/1998 3/10 JUDGMENT violation of the provisions of law, i.e., the Factories Act and the rules made thereunder for which Criminal Case Nos. 4691/86 and 4692/86 were registered. Summons were issued to the owner and as the owner of the factory did not admit the guilt and claimed to be tried, the charge was framed and it was tried as a summary trial under the provisions of Cr.P.C. 3. The main thrust of the prosecution case was that there were 5 workers working in the factory premises which was engaged in manufacturing hosiery products and have also used acid for which the procedure had not been followed and the provisions of Sec. 6(1)(d) of the Factories Act r/w sec. 4 was violated and thereby committed offence under Sec. 92 of the said Act. Further, the factory was required to be registered under sec. 85 and as it has not been registered and also had not taken necessary approval of the Factory Inspector, the rules were violated and therefore an offence under sec. 92 was committed. The learned Metropolitan Magistrate recorded the plea and the accused came to be tried. The learned Metropolitan Magistrate proceeded with the trial as provided in Cr.P.C. and recorded the acquittal of the accused, which has been assailed by the appellant-State in the present appeal on the grounds narrated in detail in the CR.A/117419/1998 4/10 JUDGMENT memo of appeal, inter alia, that the learned Metropolitan Magistrate has failed to appreciate that the prosecution had examined one material witness, who is a public servant and there was no reason to disbelieve him. Further, it has been contended that the learned Metropolitan Magistrate has failed to appreciate that the Factory Inspector had, in his deposition, referred to various documents and material on the basis of which the facts were proved and the conviction could have been recorded instead of acquittal. It has also been contended that the learned Metropolitan Magistrate has erred in appreciating the material and evidence on record and erroneously recorded the acquittal on the ground that the prosecution has failed to establish about the violation of provisions of the Factories Act and the Rules made thereunder. 4. Learned APP Mr. K.T. Dave has referred to the material and evidence on record. He referred to the deposition and also the impugned judgment and submitted that, admittedly, there were 5 workers working at the time of the visit of the Factory Inspector and the premises/factory was engaged in manufacturing hosiery products with the use of power and acid was also used in the process. The learned APP referred CR.A/117419/1998 5/10 JUDGMENT to Sec. 85 (Chapter IX) of the Factories Act, 1948 and particularly clause (i) of Sec. 85, which provides, “the number of persons employed therein is less than ten, if working with the aid of power and less than twenty if working without the aid of power.” Therefore, learned APP Mr. Dave submitted that, admittedly, there was manufacturing process carried out with the power and therefore even if number of persons employed were less than 10, it would attract the provisions of law. However, he fairly conceded that for that purpose notification is required and the notification has not been produced on record. 5. Another relevant aspect which he tried to emphasize was with regard to licence and registration under the Factories Act under Sec. 6 and submitted that as provided in Sec. 6, subject to the rules that may be made by the Government, the registration or licence of the factory on payment of prescribed fees was required or necessary. 6. Further, it was submitted referring to the Gujarat Factories Rules, 1963 and particularly Rule 102 r/w Schedule XII that Rule 102 provides for certain procedures when CR.A/117419/1998 6/10 JUDGMENT dangerous manufacturing process is carried out in the factory and he referred to Schedule XII which reads, “Manipulationof acids or alkalis” It was submitted that Schedule XII referred to manipulation of acids or alkalies and the necessary requirement is to be fulfilled if such an item is used. He also submitted that if the factory was exempted, then an application is required to be made to the chief Inspector for necessary exemption which is also not there. 7. Therefore, the learned APP submitted that there were violations which have not been appreciated on the basis of the material and evidence produced by the Factory Inspector during his deposition. However, he fairly conceded that whether the factory was required to be registered and whether Sec. 85 would be attracted or not could be decided with reference to the notification, which has not been produced and, therefore, it would be most relevant. However, it was submitted that the notification ought to have been called upon instead of recording the acquittal and, therefore, the judgment and order is erroneous. 8. Learned advocate Mr. Kogje for the respondent CR.A/117419/1998 7/10 JUDGMENT submitted that, as reflected in the impugned judgment and order of the learned Metropolitan Magistrate, whether the factory was required to be registered as provided under sec. 85 of the Factories Act and whether the said provision would be attracted could be decided with reference to the notification and no notification has been admittedly produced. Therefore, the entire exercise of the prosecution was without any base and the impugned judgment and order recording the acquittal is justified. 9. In view of the rival submissions and also on appreciation and scrutiny of the evidence, it is required to be considered whether it would call for any interference in the impugned judgment and order recording acquittal of the accused. On scrutiny of the evidence, it is evident that whether Sec. 85 would be attracted or not could be decided with reference to the notification, which has not been produced at all. Therefore, whether the factory was covered as provided under sec. 85 itself is doubtful. Further, much emphasis is given to Rule 102 referring to Schedule XII and also the use of acid as well as the issue of licence and registration or exemption. 10. It is required to be appreciated that in the impugned CR.A/117419/1998 8/10 JUDGMENT judgment and order, the learned Metropolitan Magistrate has specifically recorded that the complainant has not recorded even the statements of the workers who were working there. There is also no positive evidence that the factory which was engaged in manufacturing hosiery products was utilizing acid in the process and it has been specifically stated and observed that there is no evidence produced by the prosecution with regard to the use of acid in the process and therefore there is no breach or violation of any of the rules. Further, it has also been observed that the complainant-Factory Inspector in his deposition has also stated that in his complaint he has not referred to this aspect of any breach or violation of rule 102 and the use of acid in the manufacturing process. 11. Therefore, considering the totality of the circumstances and the provision of law as well as the material and evidence on record, it cannot be said that the prosecution has established or proved the case beyond reasonable doubt as it has been observed that for violation of sec. 85, notification has not been produced and for violation of other rules including rule 102 there is no material brought on record that acid was used in the manufacturing process. CR.A/117419/1998 9/10 JUDGMENT 12. Therefore, the view taken by the learned Metropolitan Magistrate recording the acquittal cannot be said to be perverse but possible and this court is in agreement with the ultimate conclusion arrived at and recorded by the learned Metropolitan Magistrate. Therefore, it may not be necessary to elaborate on this aspect any further. 13. Moreover, the settled position of law as laid down by the Hon'ble Apex Court in the case of Shingara Singh c. State of Haryana & Anr. reported in AIR 2004 SC 124 is that in an appeal against the acquittal if two views are reasonably possible on the basis of evidence and the view taken by the trial court, which is a reasonable view, then this court should not interfere with the acquittal. It has also been followed subsequently in another judgment by the Hon'ble Apex Court in the case of State of Goa v. Sanjay Thakran & Anr. reported in (2007) 3 SCC 755 in which, again, the scope of interference by the appellate court has been discussed and it has been clearly observed that “the appellate court can review the evidence and interfere with the order of acquittal only if the approach of the lower court is vitiated by some manifest illegality or the decision is perverse and the court has committed a manifest error of law and ignored the material evidence on record.” CR.A/117419/1998 10/10 JUDGMENT 14. As discussed hereinabove, in the facts of the present case, it cannot be said that there is any manifest error of law or the conclusion arrived at is perverse ignoring the material evidence on record or it suffers from legal infirmity. 15. Therefore, in view of the discussion made hereinabove, the impugned judgment and order of acquittal dated 21.8.1998 passed by the learned Metropolitan Magistrate, Court No. 4, Ahmedabad, in Criminal Cases Nos. 4691/86 and 4692/86 is a possible reasonable view and on appreciation of evidence, broadly, the conclusion arrived at is just and proper and this court is not inclined to interfere with the acquittal recorded by him. Therefore, the impugned judgment and oder passed by the learned Metropolitan Magistrate recording the acquittal is hereby confirmed and the present appeal is required to be dismissed. In the result, the appeal is dismissed. (Rajesh H. Shukla, J.) (hn)