Kumar Satya Prakash vs State Of Bihar on 30 September, 2011

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Patna High Court
Kumar Satya Prakash vs State Of Bihar on 30 September, 2011
Author: Hemant Kumar Srivastava
       In the matter of an application under section 482 of the
                     Code of Criminal Procedure.
                                   --------

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.8497 of 2009
Kumar Satya Prakash
…. …. Petitioner
Versus
State Of Bihar
…. …. Opposite Party
Appearance :

For the Petitioner : Mr. Arun Kumar Prasad, Advocate
For the Opposite Party : Mr. Nityanand Tiwary, A.P.P.
=======================================================
====
CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR
SRIVASTAVA

——————

This petition under section 482 of the Cr. P.C. has been filed on

behalf the petitioner for quashing order dated 3.1.2009 passed by the

learned Sessions Judge, Saran at Chapra in Cr. Revision no. 107/2008 and

order dated 5.2.2008 passed by Judicial Magistrate, Ist Class, Saran at

Chapra in Trial no.2599/2008.

2. The brief fact of the case, is that Factory Inspector, Chapra

filed a written complaint petition on 29.9.2005 before the learned Chief

Judicial Magistrate Saran at Chapra under the provision of Factories Act,

1948 against the petitioner mentioning therein that the petitioner has

violated provision of section 6 of the Factories Act, 1948 read with rule 7

of the Bihar Factory Rule, 1950 which is punishable under section 92 of

the Factories Act, 1948. The above stated Factory Inspector mentioned in

his written complaint that on 5.7.2005, he inspected premises of M/s

Pankaj Industry situated at Digwara District Saran and at the time of

inspection, he found 3 to 4 labourers working in the said factory. In

course of his inspection, he found that licence fee and renewal of the

licence for the years 1992, 1994 to 2005 had not been deposited and the

aforesaid factory was being run without renewal of the licence and
Patna High Court Cr.Misc. No.8497 of 2009 dt.30-09-2011
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without having valid licence. The petitioner was proprietor of the

aforesaid factory. After inspection, the Factory Inspector issued notice to

the petitioner but the petitioner did not respond to the aforesaid notice and

subsequently, the above stated Factory Inspector filed written complaint

in the court of Chief Judicial Magistrate Saran at Chapra as stated above.

3. The petitioner filed a petition in the court of Sri D.L. Prasad,

Judicial Magistrate, lst Class, Saran in Trial no. 2599/2008 praying therein

to drop the proceeding and discharge him from aforesaid Trial no.

2599/2008. The aforesaid petition was rejected by Sri D.L. Prasad, Judicial

Magistrate, lst Class, Saran vide order dated 5.2.2008 which is in challenge

in this petition. After rejection of the above stated petition, the petitioner

preferred Cr. Revision no. 107/2008 in the court of learned Sessions Judge,

Saran against the order dated 5.2.2008 passed by Sri D.L. Prasad, Judicial

Magistrate, lst Class, Saran in Trial no. 2599/2008 but the learned Sessions

Judge, too, dismissed the aforesaid revision passing the impugned order

dated 3.1.2009 which is also in challenge before this court.

4.This court gave several adjournments to the State to file

counter affidavit but no counter affidavit was filed on behalf of the State

and subsequently, petition under section 482 of the Cr. P.C filed on behalf

of petitioner was admitted by this court vide order dated 12.1.2011.

5. Learned counsel for the petitioner challenged the impugned

order on the ground that admittedly, petitioner was running a saw mill on

the alleged date of the occurrence and the premises of saw mill of the

petitioner was inspected by the Factory Inspector. It is also contended by

him that the petitioner had taken valid licence from the Forest department

and Factory Inspector had no power to make search and seizure in respect

of saw mill of the petitioner. It is further contended by him that after

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passing of Bihar Saw Mills (Regulation) Act, 1990, the jurisdiction of

Factory Inspector has already been seized and only officials of the Forest

department could have inspected the premises of saw mill of the

petitioner. To fortify his above stated contentions, learned counsel for the

petitioner referred section 24 of the Bihar Saw Mills (Regulation) Act,

1990.

6. On the other hand, learned Addl. Public Prosecutor

appearing for the State submitted that Bihar Saw Mills (Regulation) Act,

1990 has been enacted to protect forest whereas Factories Act is for the

purpose of regulating and running of the factories and the Factories Act

has been enacted for the purpose of welfare of the labourers engaged in the

factories and, therefore, section 24 of the Bihar Saw Mills (Regulation)

Act, 1990 does not operate as a bar in application of the Factories Act,

1948.

7. Having heard the rival contentions of both the parties, I have

gone through the record as well as relevant provisions of the Factories Act

as well as Bihar Saw Mills (Regulation) Act, 1990.

8. Here, I would like to refer section 24 of the Bihar Saw Mills

(Regulation) Act, 1990 which runs as follows:-

“Other Act and laws not to apply to saw mill or
saw pit – nothing contained in any other Act or law,
rule, order or any other thing having a force of law in
any area of the State shall apply to the saw mill and
saw pit and sawing in respect of matters for which
provisions are contained in this Act”.

The above Bihar Saw Mills (Regulation) Act, 1990 was

published in Bihar Gazette on 7.12.1990. The aforesaid Act has been

enacted to make provision for regulating in the public interest the

establishment and operation of saw mills and saw pits and trade of sawing

for the protection and conservation of forest and the environment.

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Section 7 of the aforesaid Act relates to grant, renewal,

revocation or suspension of licence. The aforesaid section 7 of the Bihar

Saw Mills (Regulation) Act, 1990 prescribes for grant of licence, renewal,

revocation or suspension for running a saw mill. Section 8 of the aforesaid

Act gives power to licensing officer or any other person authorized by the

licensing officer in this behalf for entry, inspection, search, seizure etc. in

respect of any saw mill or saw pit. Section 2(d) of the above stated Act

define the word licensing officer and says that licensing officer means a

licensing officer appointed under sub-section (1) of section 3 of the Bihar

Saw Mills (Regulation) Act, 1990. Section 3 of Bihar Saw Mills

(Regulation) Act, 1990 says that the State Government may, by

notification, appoint an officer not below the rank of Divisional Forest

officer to be licensing officer for the purpose of this Act and define the

local limits within which licensing officer shall exercise the powers

conferred and performed duties imposed on him by and under this Act.

9. In this connection, section 5 of the Bihar Saw Mills

(Regulation) Act, 1990 is also relevant. Section 5 of the above stated Act

says that on and from the appointed day- no person shall establish a saw

mill or saw pit except under the authority and subject to the conditions of a

licence granted in that behalf under this Act and no person shall operate a

saw mill or a saw pit in existence on the said date, unless he is granted a

licence in that behalf under this Act on an application made by such person

within a period of thirty days from such date. Section 2(a) of the above

stated Act says that appointed day means a date appointed under sub-section

(3) of section 1.

10. The State Government on 27.4.1993 issued notification la0 ou

fodz; 33/93- 1929–appointing Divisional Forest officer, Saran as licensing

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officer for Saran division. Therefore, after publication of the aforesaid

notification only Divisional Forest officer had got jurisdiction to issue

licence for saw mill and the Divisional Forest officer had got jurisdiction to

make inspection, search and seizure of a saw mill.

11. In the present case, Factory Inspector inspected the

premises of saw mill of the petitioner on 5.7.2005 and found some

irregularities such as non-renewal of licence and running of saw mill

without having any valid licence but on the above stated date Factory

Inspector had got no power to inspect saw mill of the petitioner in view of

application of Bihar Saw Mills (Regulation) Act, 1990 and the power of

above stated Factory Inspector had already been seized after application of

the above stated Act. Apart from this, section 24 of Bihar Saw Mills

(Regulation) Act, 1990 bars the application of Factories Act, 1948 in

respect of saw mill and saw pit.

12. On the basis of the aforesaid discussions, I am of the opinion

that not only the learned Judicial Magistrate, Chapra but also the learned

Sessions Judge, Chapra committed an error in not dropping the proceeding

against the petitioner which has been initiated on the basis of report of

Factory Inspector after coming into force of Bihar Saw Mills (Regulation)

Act, 1990.

13. In the aforesaid circumstances, the continuance of

proceeding against the petitioner is an abuse of process of the court and, in

my view, it must be quashed.

14. Accordingly, order dated 3.1.2009 passed by the learned

Sessions Judge, Saran at Chapra in Cr. Revision no. 107/2008 and order

dated 5.2.2008 passed by Judicial Magistrate, Ist Class, Saran at Chapra in

Trial no.2599/2008 are, hereby, quashed with direction to the Judicial

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Magistrate, Saran to pass a fresh order on the above stated petition of the

petitioner in the light of the observations given in this order.

15. In the aforesaid manner, this quashing petition stands

disposed off.


             The Patna High Court
             The 30th September,2011
             Shahid/ NAFR

  Shahid                                              ( Hemant Kumar Srivastava,J)




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