STATE OF MAHARASHTRA Vs. ARDESHIR HORMUSJI BHIWANDIWALA

JUDGEMENT

(1.) This is an appeal by the State of Bombay from a judgment of the learned Chief Presidency Magistrate, Bombay, acquitting the respondent who was charged with having committed an offence under Section 92, Factories Act 1948, for breach of the provisions of Section 6, Factories Act, 1948, read with Rule 4 of the Bombay Factories Rules, 1950. The appeal raises an important question-of construction of Clause (k) (1) and Clause (m) of Section 2, Factories Act 1948. The respondent is the occupier of the Wadia Mahal Salt Works at Wadala where the salt is made, and the questions which have arisen before us are whether the site where the salt works are situated is "premises" within the meaning of Clause (m) of Section 2 and whether the sale is made as a result of any manufacturing process within the meaning of Clause (k) (1) of Section 2.

(2.) The respondent, Ardeshir Hormusji Bhiwandiwala is a partner in the firm of Messrs. H. M. O. H. Bhiwandiwala and Co. who are occupiers of the Wadia Mahal Salt Works situated at Wadala, Bombay. The complainant in this case is one Mr. Bapat, an Inspector of Factories, and on 18-7-1953 he filed a complaint against the respondent. The gist of the complaint was that the respondent, who was the occupier of the Wadia Mahal Salt Works, which were a factory under Section 2(m), Factories Act, had failed to submit to the Chief Inspector of Factories, Bombay State, an application in Form No. 2 for the registration of the factory and for the grant of a licence as required under Section 6, Factories Act, read with Rule 4 of the Bombay Factories Rules, 1950. The complaint stated that by reason of the abovementioned contravention of the provisions of Section 6, Factories Act read with Rule 4 of the Bombay Factories Rules, the respondent had committed an offence under Section 92, Factories Act.

(3.) When the case went up first before the learned Chief Presidency Magistrate for trial, he held that as the complaint against the respondent was made beyond the period of three months from the date on which the commission of the offence had come to the knowledge of the complainant, it was barred by limitation under Section 106 of the Act. Accordingly, he ordered the complaint to be dismissed. There was an appeal to the High Court by the State of Bombay against that order of dismissal and the High Court held that, so far as the failure to have the factory registered under the provisions of the Act was concerned, it was not a continuing offence and that, therefore, the complaint in so far as that part of the charge was concerned was barred by limitation at the date upon which it was filed. But, in respect of the charge that the respondent had failed to make an application for the grant of a licence to him for the working of this factory, the High Court held that the failure to apply for a licence was a continuing offence, and that a fresh offence was committed on each. day upon which the factory was worked without a licence. The pertinent observations which the High Court made in that appeal, which was 'Cri. Appeal No. 762 of 1954 (Bom) (A)', were these: "Every day that the respondent used the premises as a factory without obtaining a licence, he has committed a fresh offence, and in respect of each fresh offence, a separate prosecution is competent. The failure of the complainant to prosecute the respondent for the earlier offences committed by him cannot, in our opinion, justify the application of the provisions of Section 108 in support of his plea of limitation." Consistently with this view which the High Court took, the Court sent back the case to the learned Chief Presidency Magistrate with a direction that the learned Magistrate should deal with second charge, viz. the charge regarding the respondent running his factory without obtaining a licence, in accordance with law.