IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16/02/2004
CORAM
THE HONOURABLE MRS. JUSTICE R.BANUMATHI
CRL.APPEAL No.357 of 1997
K. Dhanalakshmi ... Appellant
-Vs-
State by:
Inspector of Factories,
Villupuram. ... Respondent.
Criminal Appeal against the judgment dated 30.12.1996 made in
C.C. No.10 of 1996 on the file of Additional Sessions Judge-cum-Chief
Judicial Magistrate, Villupuram.
!For appellant : Mr.N.Sankarasubramanian
^For respondent : Mr.A.N.Thambidurai,
Govt. Advocate (Crl. Side)
:J U D G M E N T
Appellant is the Accused in C.C.No.10 of 1996 on the file of
Additional Sessions Judge-cum-Chief Judicial Magistrate, Villupuram. By the
judgment dated 30.12.1996, Accused was convicted under Sec.6 and Sec.92 of
Factories Act, 1948 r/w Rule 3 of 1950, Sec.6(1) and Sec.92 of Factories Act,
1948 r/w Rule 4 of 1950 and Sec.7(1) and Sec.92 of Factories Act, 1948 r/w
Rule 12 of 1950 and imposed a fine of Rs.5,000 /- on each count; total fine
amount of Rs.15,000/-.
2. The Respondent / Complainant is the Factories Inspector, Villupuram. The
Appellant / Accused – Dhanalakshmi is the owner and the occupier of Sri Siva
Blue Metals, where stone crushing work is being carried on. On 20.06.1996 –
3.30 p.m., Factories Inspector, Villupuram inspected Sri Siva Blue Metals. At
that time, he had noted six men and five women working. The stone crushing
work was being done, installing the machinery of 40 H.P. At the time of
inspection, Factories Inspector noted the following violations:-
Sec.7(1) r/w Rule 12
Violation of Sec.7(1)
r/w Rule 12
Requiring previous permission in writing of the State Government or the Chief
Inspector to be obtained for the site on which the factory to be situated and
for the construction or extension of any factory ;
For the purpose of considering applications for such permission the submission
of plans and specifications.
Appellant / Accused has not obtained prior permission for the plan;
Nature of the plan was not submitted in violation of Sec.6(1)(b) r/w Rule 3.
Rule 6(1)(d) r/w Rule 4
Violation of Sec.6(1)(d)
r/w Rule 4
The Rule may require for the-
(i) Registration of factories or any class or description of factories,
(ii) Licensing of factories or any class or description of factories,
(iii) Fees payable for such registration and licensing and the renewal of
licences.
Total amount of power installed was 40 H.P.;
Six men and five women were employed in the stone crushing unit;
Non obtaining of registration of Factories / licencing of factories and non
payment of fees payable for such registration, which is in violation of
Sec.6(1)(d) r/w Rule 4.
Section 7(1) imposes an obligation on the occupier of a factory to send a
written notice, containing prescribed particulars, to the Chief Inspector at
least 15 days before an occupier begins to occupy or use a premises as a
factory–
The name and situation of the factory;
The name and address of the occupier and such others.
Not sent the written notice to the Chief Inspector in the form with prescribed
particulars as contemplated under Sec.7(1) within 15 days prior to occupying
or using the premises as a factory; thereby violating Sec.7(1) r/w Rule 12.
All the above violations are punishable under Sec.92 of the Factories Act.
3. Complainant / Factories Inspector prepared the Inspection
Report. Show cause notice was served upon the Appellant / Accused. Since no
reply was forthcoming, complaint was launched against the Appellant / Accused
for violations of provisions of Factories Act on three counts as noted above.
The facts constituting the gist of the offences were set forth in the charge.
4. In the trial Court, when the Accused was questioned, she
has admitted the offences. On her admission, the trial convicted the Accused
under Ss.6 of Factories Act, 1948 r/w Rule 3 of 1950, 6(1) of Factories Act,
1948 r/w Rule 4 of 1950 and 7(1) of Factories Act, 1948 r/w Rule 12 of 1950
and imposed a fine of Rs.5,000/- on each count; total fine amount of
Rs.15,000/-. Aggrieved over the imposition of fine of Rs.15,000/-, the
Appellant / Accused has preferred this appeal.
5. In the Memorandum of Grounds, it is stated that for
similar other Accused, the uniform fine amount of Rs.100/- is imposed and the
Appellant / Accused ought to have been viewed of similar footing imposing a
fine of Rs.100/-. Assailing the quantum of fine as harsh, the learned counsel
for the Appellant / Accused has raised the following three contentions:-
(i) Placing reliance upon the case of State of Gujarat v. Dineshchandra
(1994 CRL.L.J.1393) it is submitted that when the guilt is not pure and
simple, there cannot be finding of guilty and imposition of fine;
(ii) further reliance placed upon in Kerala judgment (AIR 1958 KERALA
237) in support of the contention that for violation of Ss.6 and 7 r/w
Rules 3, 4 and 12, penal provision of Sec.92 is not applicable.
(iii)On 07.11.1996, Appellant / Accused has obtained the licence for running the stone crusher, which the trial Court has not taken note of while recording the plea of guilt on 30.12.1996 and imposing fine of Rs.5,000/- on each count.
6. Pointing out that the Quarry was in full operation on the
date of Inspection – 20.06.1996, the learned Government Advocate submitted
that only penal provision of Sec.92 of the Act is applicable and when under
Sec.92 of the Act for any violation two years punishment and fine of Rs.1 Lakh
is provided for, the trial Court has shown extreme leniency in imposing fine
of Rs.5,000/- on each counts, which warrants no interference.
7. This appeal is preferred against the plea of admission of
guilt. Under Sec.375 Crl.P.C., no appeal lies in cases when the Accused
pleads guilty excepting to the extent or legality of the sentence. It is to
be seen whether the fine amount of Rs.5,000/- on each counts on admission of
plea of guilt is reasonable or excessive as contended by the Appellant /
Accused.
8. We may firstly refer to the third contention urged
by the Appellant / Accused. It is submitted that the Appellant has obtained
the permission and licence for the quarry on 07.11.1996, which was not taken
note of by the trial Court while recording the plea of guilt and imposing a
fine, by judgment dated 30.12.1996.
9.
Obtaining permission / licence on 07.11.1996 would not in any way mitigate the
rigor of the earlier violation. It is to be noted that the show cause notice
was issued to the Accused on 02.0 7.1996 as to why she should not be
prosecuted. In continuation of the show cause notice, Corrigendum was issued
to the Accused on 14.08.1 996. Despite issuance of the notices, the Appellant
has not taken immediate steps to obtain licence, indicating that the initial
preparation for obtaining the licence, plan and others were not ready at hand.
Inspecting the premises by the authorities has its definite purpose. Safety
measures would be ensured before issuance of the licence. Operating the
quarry without submitting the plan and without obtaining the licence seriously
endangers the life of the workers, who are employed in the Quarry. On the
date of inspection i.e. on 20.06.1996 , the Complainant / Factory Inspector
found six men and five women working in the premises with 40 H.P. Power
installed. It is not known whether safety measures were installed. In that
view of the matter, non-obtaining of licence cannot be considered to be a
simple violation, which could be rectified at a later date. Further more, at
the time of pleading guilty, the Appellant / Accused has not brought to the
notice of the trial Court about her subsequent obtaining of the licence on
07.11.1996. When that was not brought to the notice of the trial Court, now
it is not open to the Appellant to urge this contention before this Court.
10. The decision in 1994 CRL.L.J.1393 was a case of
repetition of the offence and conviction under Sec.94 of the Factories Act.
In that view of the matter, in the facts and circumstances of the case, the
Court found that the plea of guilty was not a pure and simple but a ‘composite
plea of guilty’. By perusal of the records of the case in hand, it is seen
that the entire facts containing the gist of the offence were set forth in the
charge and the Accused was questioned on 08.12.1996. All the essential
details are clearly set forth in the charge and the Accused had admitted the
offence. The admission of guilt is a simple one and not a composite one as
was the case before the Gujarat High Court. The said decision cannot be
applied to the facts of this case.
11. The learned counsel for the Appellant / Accused has
contended that the penal provision of Sec.92 is not applicable for violation
of Ss.6 and 7 r/w Rules 3, 4 and 12. This contention also has no merits.
Sec.92 is the penal provision “for contravention of any of the provision of
this Act or of any Rule made thereunder or of any order in writing
thereunder”. Sec.92 is the general penal provision for the offences and
Chapter 1 is nowhere excluded from the operation of Sec.9 2. In the decision
relied upon by the Accused in the case of V.M. Patel v. Inspector of
Factories (AIR 1958 KERALA 237), the premises related to Gujarat Travancore
Agency to which the provision of the Factories Act was not then applicable.
In that view of the matter, the Kerala High Court held that the requirements
of Ss.6 and 7 of the Act r/w Rules 3, 4 and 12 and the Rules framed thereunder
are not punishable under Sec.92 of the Act regarding the premises in question.
That decision cannot be made applicable to the case in hand, where Sri Siva
Blue Metal Unit is clearly covered under the provisions of the Factories Act
to which penal provision of Sec.92 is applicable.
12. Sec.92 of the Factories Act contemplates imprisonment for
a term of two years or with fine which may extend to Rupees One Lakh or with
both. Since violations of the provisions are serious offence, huge fine
amount of Rupees One Lakh is contemplated for such violation of the
provisions. When the licence was not obtained, nor the plan was submitted for
approval, the same cannot be viewed as lesser offence. The trial Court has
shown extreme leniency in imposing Rs.5,000/- on each counts. It cannot be
said to be excessive or unreasonable. This appeal has no merits and is bound
to fail.
13. Therefore, the conviction of the Appellant / Accused in
C.C.No.10 of 1996 (dated 30.12.1996) and the quantum of fine are confirmed.
This appeal is dismissed.
Index: Yes
Internet: Yes
sbi
To
1.The Addl. Sessions Judge -cum-
Chief Judicial Magistrate,
Villupuram.
2 Through, the Principal District and
Sessions Judge, Villupuram.
3.The Inspector of Factories,
Villupuram.
4.The Public Prosecutor,
High Court, Chennai.