KHAN MOHAMMED Vs. STATE OF ANDHRA PRADESH
HIGH COURT OF ANDHRA PRADESH
STATE OF ANDHRA PRADESH
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Kondaiah, J. -
(1.) This bunch of three criminal revisions gives rise to an important question of law, whether a premises wherein the proprietor thereof engages himself in repairing watches of customers for remuneration, is or is not a "shop" within the meaning of clause (21) of Section 2 of the Andhra Pradesh Shops and Establishments Act, 1966 (hereinafter called the Act).
(2.) The principal question involved in these cases being common, we prefer to dispose of the same by a common judgment The Criminal Revision Case No. 560/70 being more comprehensive apart from its being the first case either in point of time of the alleged offence or in presenting the revision in this Court, we feel it not only sufficient but convenient and proper to refer to the facts of that case in order to appreciate the scope of the question. The petitioner, one Khan Mohammed, is the employer of Universal Watch Company situate in a premises at Afzalganj, Hyderabad. At about 7-50 P. M. on October 5, 1969 which happened to be a Sunday P. W. 1 inspected the premises of the petitioner and found him keeping his shop open and repairing watches. When demanded by P. W. 1 to produce the visit book prescribed under the Aadhra Pradesh Shops and Establishments Rules, 1968 (hereinafter called the Rules) the petitioner refused or failed to produce the same. Similarly, at about 4-30 P. M. on 12-7-1970 and at 1-05 P. M. on 5-8-1970, both the days being Sundays, the petitioner and another were found by P. W. 1 repairing watches keeping the premises open. Hence the petitioner was sought to be prosecuted by the State for the offences punishable under Section 54 (2) read with Section 9 (1) of the Act and Rule 28 (2) of the Rules made under Sub-section (2) to Section 62 of the Act; Several pleas by way of defence were raised by the petitioner. But suffice it to refer here to the legal pleas which are material for the present case. Firstly it was urged that the premises where the petitioner was found by P. W. 1 to be repairing watches belonging to his customers at various times on Sundays, does not fall within the definition of a "shop" under clause (21) of Section 2 of the Act. Secondly, P. W. 1, who inspected the premises of the petitioner, was not competent to check the premises as he was not validly appointed under Section 50 of the Act and no notification authorising him as the Inspector of Circle No. VII wherein the petitioner's shop is situate, has been issued. He examined D. Ws. 1 and 2 in support of his pleas other than the legal contentions, whereas the prosecution examined P. W. 1, the Inspector, and filed Exs. P.1 to P-8 in sup- port of its case. Rejecting all the pleas set up by the defence and agreeing with the prosecution case, the trial Magistrate has convicted the petitioner for the offences under Section 54 (2) read with Section 9 (1) of the Act and Rule 28 (2) of the Rules and sentenced him to pay a fine of Rs 75/- on each of the counts and in default, to undergo rigorous imprisonment for a period of one month: On appeal, the learned Principal Sessions Judge, Hyderabad affirmed the convictions but reduced the fine of Rs. 75/- to Rs. 20/- on each of the counts. Hence this Criminal Revision Petition No. 560 of 1970.
(3.) We may point out that in the other two cases, the appellate Court has set aside the conviction of the petitioner under Section 54 (2) read with Section 9(1) of the Act but confirmed the conviction for the offence punishable under Rule 28 (2) and sentenced the petitioner to a fine of Rs. 25/- in each case. Sri Keshava Rao Ahmed Pulkar, the learned counsel appearing for the petitioner, raise'd the following contentions .
(1) The premises where the petitioner was found to be working and repairing the watches of his customers is not a "shop" within the meaning of clause (21) of Section 2 of the Act, and therefore, the provisions of the Act are not applicable to him.
(2) P W 1 was not competent to inspect the petitioner's premises as he was not appointed as Inspector under Section 50 of the Act and there is no notification issued empowering him to have jurisdiction over Circle No. VII where the petitioner's shop is situate,
(3) P.W. 1 is not an Inspector but only a Assistant and hence, is not competent to prefer the complaint and the present complaint filed by him, therefore, ought not to have been taken cognizance of by the trial Magistrate.
(4) It is for the Commissioner of Labour under Section 65 to decide as to whether all or any of the provisions of the Act shall or shall not apply to an establishment and hence, the trial Court has no jurisdiction to decide the points raised in these cases and convict his client. Finally, on merits, it was contended that the prosecution has failed to establish beyond reasonable doubt that the petitioner had opened his shop for any trade or business and that he had denied the production of the register as stated by P.W. 1.;
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