((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.191 OF 1997 The State of Maharashtra Appellant versus P.H.Khatiwala Respondent WITH CRIMINAL APPEAL NO.192 OF 1997 The State of Maharashtra Appellant versus P.H.Khatiwala Respondent Mr.J.P.Yagnik, APP for the appellant-State. Kiran S. Bapat, adv. for respondent. CORAM : A.S.OKA, J. DATE : 24th March 2009 JUDGEMENT : 1. These are the appeals against acquittal preferred by the State. The appeals can be disposed of by common judgement as the accused in both the cases is the same and there is common evidence recorded by the Trial Court. 2. With a view to appreciate the submissions made by the counsel for the parties, it will be necessary to refer to the facts of the case in brief. ((-2-)) 3. The appeals arise out of private complaints filed by one R.D.Kichambare, Deputy Director of Industrial Safety and Health, Pune. 4. According to the case of the prosecution, the respondent-accused is the occupier of the factory namely Arlabs Limited, Bhatghar, Tal. Bhor, District Pune. The factory has been duly registered and licensed under the Factories Act, 1948. 5. On 24th May 1992 one Arun Pandharinath Awale met with a fatal accident at about 9.00 a.m. while working in the said factory. After receiving the information of the incident one Mr.J.N.Pare, Deputy Director, Industrial Safety and Health, Pune visited the factory. Enquiries made with the Manager and members of staff revealed that maintenance work of brine chilling plant was going on in the factory. During trial of the newly installed bring chilling plant ice was found formed in the brine circulation tubes. It resulted into choking up of tubes and stopping the circulation of brine. For cleaning up these tubes the Junior Engineer Bhope and the ((-3-)) deceased Avale were engaged in passing the steam at a pressure of at about 90 pounds LBS through the tubes. When all the ice in the brine tubes was melted, while passing the steam the welded end plate of the vaopur receiving shell of the chilling plant gave way from the welding joints causing the explosion. The pipeline from liquid receiver to the chiller shell was also broken and 500 kgs. of ammonia escaped/leaked in the chiller plant room and adjoining surroundings. Mr.Avale who was doing the work of passing the steam in the tubes was overcome by toxic ammonia gas became unconscious and subsequently succumbed. Another worker Mr.Sampat Pawar who went inside the chiller plant room without wearing breathing mask to remove the deceased worker, was also affected. But he survived. After enquiry the following defects were noticed :- "i) The sate working pressure of chiller shell and the vapour receiving shell of the chilling plant was exceeded; ii) No safety valve and a pressure gauge was provided to the brine chilling ammonia shell of the chilling plant; iii) The maximum safe working pressure was not marked on the brine chilling shells and the shells were operated at a pressure higher than the maximum safe working pressure; ((-4-)) iv) The brine chilling plant was taken into use for the first time without thoroughly examining it by the competent person, in the factory premises." 6. The allegation made in the complaint subject matter of Criminal Appeal No.191 of 1997 is that the respondent was occupier of the factory contravened the provisions of section 31(1) of Factories Act, 1948 and Rules 65(6)(i), 65(6)(iii)(b), 65(3)(i) (b&c) of Maharashtra Factories Rules, 1963. The process was issued by the learned Magistrate for the said violations for the offence punishable under section 92 of the Factories Act. 7. The complaint subject matter of Criminal Appeal No.192 of 1997 relates to the same incident. The allegation in the said complaint is that the respondent had not provided the chilling plant the system of work that was safe and without risks to health. The occupier had not provided information, instructions, training and supervision as were necessary to ensure the health and safety of all the workers at work. Hence, it was alleged that the respondent has contravened the provisions of section 7A(1) and 7A1(2)(a) and (c) of the Factories Act, 1948. Accordingly, the learned ((-5-)) Magistrate issued process on the said complaint on account of violation of the said provisions punishable under section 92 of the Factories Act. 8. The complaints wee tried and by the impugned orde, the respondent-accused has been acquitted. 9. The learned APP has taken me through the notes of evidence and other relevant material on record. He submitted that the prosecution witnesses have established the case of accident. He submitted that the evidence of the prosecution witnesses establishes that there was gross negligence on the part of the respondent in taking safety measures. He submitted that the respondent did not take care to ensure the safety of the workmen considering the nature of their duties. He submitted that the evidence on record clearly shows that the work of passing steam was not done in presence of any senior or experienced officer of the respondent in the factory of the respondent. He submitted that the respondent and his officers could have stopped the accident. He submitted that an unsafe method of removing the ((-6-)) blocks in the tubes was adopted by the respondent. He submitted that the prosecution had established several breaches on the part of the respondent-accused and had proved the case beyond a reasonable doubt. 10. The learned counsel appearing for the respondent pointed out that all precautions were taken by the respondent. He pointed out that none of the breaches have been established by the prosecution in these cases. He submitted that there are no compelling reasons to interfere in the order of acquittal. 11. I have perused the notes of evidence and other relevant documents on record. I have also perused the averments made in the complaint and the findings recorded by the learned Magistrate. With a view to appreciate the submissions, it will be necessary to refer to the evidence of the prosecution witnesses. PW-1 is the complainant Mr.Ramkrishna Damodhar Kichambare. He stated that his predecessor Mr.J.N.Pare conducted thorough enquiry after examining the witnesses. He stated that the enquiry report was sent to the respondent along with a show cause notice. An explanation was ((-7-)) received to the show cause notice. In the cross examination a specific question was asked to him as to whether he had any personal knowledge about the incident. His specific response was that he was aware about the incident on the basis of record that was available in the office. He stated that after receiving the information he has not made any enquiry. He stated that while handing over the charge to him, Mr.Pare handed over documents to him. Therefore, as far as knowledge of the breaches or negligence on the part of the respondent is concerned, the said officer has no personal knowledge. 12. It will be necessary to refer to the evidence of PW-2 Mr.Jaykrishna Namdeorao Pare who was at the relevant time the Deputy Director of Industrial Safety and Health. After knowing about the incident he immediately visited the factory of the respondent. In paragraph no.2 of his deposition the witness has stated thus:- "2. After full observation I have noticed that at the time of the accident, even ammonia was present in the chiller shell of the plant steam was passed at the pressure 85 pressure in the tube for melting the ice. These was before and ((-8-)) after chilling shell valves to ice melting were closed. There was no separate pressure gauge or safety valve provided to the chilling shell and the receiving shell. As the steam was passed in the tubes, the ammonia gas present in the shell was expanded and there was tremendous increase of pressure due to the explansion of the ammonia gas. As there was no safety valve the pressure could not get released, the safe working pressure got exceeded and therefore, the vapour shell welding joint gave way because of the explosion. Because of the impact, the pipeline connecting the liquid Ammonia receiver and chiller shell also gave way and entire ammonia weighing about 500 kg. spreaded in the room. The deceased was working there got affected by Intoxi ammonia. He was taken to the Hospital. He succumbed to the injury." In paragraph 3 of his deposition he stated that there was no safety valve and there was no supervision of workers. In the cross examination he stated that during his previous visit he visited the chilling plant. He stated that he had made a remark that the plant should be examined by the competent person approved by the Inspector of Factory. He stated that instructions have been recorded in the inspection book but he was unable to produce the same. He categorically admitted that after the examination of the plant, the accused submitted a certificate of the competent person. He was extensively cross examined by the advocate for the respondent. He stated ((-9-)) that the safety officer was an important person in respect of safety and health of the workers. However, he did not recod his statement. 13. It will be also necessary to refer to the evidence of other prosecution witness namely PW-3 Rohidas Vitthal Bhelker. He stated that on 23rd May 1992 at about 4.00 p.m. he was working as chilling plant operator. He stated that at about 6.00 to 6.30 p.m. brine was not coming out from the chilling plant and he reported this fact to Benwalkar, his superior officer. After checking it was noticed that the brine was coming on the inlet side but it was not coming from the outlet side of the chilling plant. He stated that Mr.Benwalkar told him that some ice must have formed inside the chilling plant and he instructed him to pass the steam so that due to the heat the ice collected would be melted and the pipe will become free. He stated that they released the steam for 1-2 minutes. He stated that the tube became free. He stated that at 12’O clock in the mid night he handed over the plant to one Pawar and Bhope. As far as experience of the workers is concerned, in the cross examination he deposed thus:- ((-10-)) "... ... At least 3 months training is given to each worker, and they were placed under the senior person for training. Time to time, they used to instruct and after experience they were taken as operator. As per this the direction was given to me and other operators and Engineers. Bhope and Bengalkar was having experience of these working as they worked on another machine. Dange is also experienced person and Sr.Engineer. Marar was Chief Engineer. The plant was started in presence of Dange, Marar and others. They are residing in the campus of the factory and they are available for guidance and instruction in the factory. The trial of the plant was smoothly done since from morning. The machinery of the plant was installed before 4 months and after installation of the machinery the experts have visited the factory. It was the first occasion that there was cholk in the plant. We our own accord, we find the reason for the cholk. There is direction to supply water in case of such cholk." He clearly admitted that there is a safety valve and pressure gauge. He admitted that there is also a marking showing maximum pressure and a thermometer showing temperature. 14. PW-4 is Sampat Ganpat Pawar who was working as Ice Plant Operator. He stated that at about 3.00 a.m., he heard an explosion. He stated that Avale was there and when he tried to lift him he fell and got injuries. He stated that due to Ammonia he lost his consciousness. He was cross examined in which ((-11-)) he admitted that when plant was installed a trial was taken by the company after checking and examining. He stated that plant and factory are checked by the company every year and are duly certified. 15. PW-5 is Milind Narayan Bhope who was working as Junior Maintenance Engineer with the factory of the respondent. He described the manner in which the accident took place. He reiterated that there was safety gauge and safety valve to the plant and the same were in working condition. He stated that there was marking of the safe working on the pressure gauge. He stated that if the pressure increases, the safety valve opens automatically. 16. Now, turning to the allegations of the prosecution. It must be stated that the chilling plant was examined and certified by the competent officer. The prosecution witnesses have stated that there was safety valve and pressure gauge provided to the brine chilling plant. If this is the version of the prosecution witnesses, none of the four breaches or drawbacks which are set out in ((-12-)) Complaint No.33 of 1992 have been established by the prosecution. The prosecution has not established that the respondent had not provided to the chilling plant the system of work which was safe and without risk to the health. The evidence of the prosecution witnesses shows that the staff was trained. 17. If the evidence of the prosecution witnesses is examined, it is apparent that the view taken by the learned Trial Judge that the guilt of respondent is not established, is certainly a possible view which could have been taken only on the basis of evidence on record. Even assuming that another view is possible to be taken, that is no a ground for interference in an appeal against acquittal. The incident is of the year 1992. The order of acquittal was passed in the year 1995. It is well settled that the presumption of innocence is further strengthened by an order of acquittal of the accused. 18. It is well settled law that unless there are compelling reasons the Court cannot interfere in an appeal against acquittal. ((-13-)) 19. There is no merit in the appeals and the same are accordingly dismissed. (A.S.OKA, J.) ((-14-)) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.191 OF 1997 The State of Maharashtra Appellant versus P.H.Khatiwala Respondent WITH CRIMINAL APPEAL NO.192 OF 1997 The State of Maharashtra Appellant versus P.H.Khatiwala Respondent Mr.J.P.Yagnik, APP for the appellant-State. Kiran S. Bapat, adv. for respondent. CORAM : A.S.OKA, J. DATE : 24th March 2009 JUDGEMENT : 1. For the reasons separately recorded, the appeal is dismissed. (A.S.OKA, J.)