Emperor Vs. Mulji Damodardas

city of bombay municipal act (iii of 1888), section 390-factory, establishing of - municipal commissioner, permission of.;the accused obtained the municipal commissioner's permission under section 390 (1) of the city cf bombay municipal act, 1888, to establish a hand loom factory worked by an oil engine : but by means of this oil engine he also established a flour mill without any permission. the accused was, therefore, charged with the offence under section 390 (1) of the act:-;that the accused was guilty of a technical offence under section 390 (1) of the city of bombay municipal act, 1888 : for although the accused had leave to establish the hand-loom factory he had no leave to establish the flour mill which was not the less another and a separate factory because it happened to be worked by the same power which it was proposed to employ in the permitted factory. - 1. the respondent was charged before the presidency magistrate, with having committed an offence under section 390 (i) of the bombay municipal act iii of 1888. he was acquitted by the magistrate, and the government of bombay appeals against that acquittal. section 390 (i) lays down that-no person shall newly establish in any premises any factory, workshop or workplace in which it is intended that steam, water or other mechanical power shall be employed, without the previous written permission of the commissioner.2. the accused obtained the municipal commissioner's permission to establish a hand-loom factory, worked by an oil engine. but by means of this oil engine the accused has also established a hour mill. it seems to us quite clear that he is guilty of a technical offence under section 390. the mechanical power or force is to be distinguished from the factory. and here, although the respondent had leave to establish the hand-loom factory, he had no leave to establish the flour mill factory, which, in our opinion, is not the less another and a separate factory because it happens to be worked by the same power, which it was proposed to employ in the permitted factory. we are, therefore, of opinion that the acquittal should be set aside, and that the respondent should be convicted of the offence charged. he has undertaken, through his counsel, not to work the flour mill beyond to-day, without permission under section 390, and, in these circumstances, we think that a nominal fine of one rupee will be sufficient.