D.K. Trivedi, J.
1. The State of Maharashtra has filed this appeal and challenged the order passed by the learned Judicial Magistrate, First Class, Panvel, Raigad dated July 10, 1991 in Summary Case No. 1935 of 1989 acquitting the respondent accused from the offence under Rule 65(3)(i)(a) of the Maharashtra Factories Rules, 1963. Shri Galeria, the learned A.P.P. appearing for the appellant-State took me through the paper-book consisting of the complaint filed by the Factory Inspector Shri Umare against the respondent accused before the learned Judicial Magistrate, First Class at Panvel dated September 16, 1989 and the evidence of the prosecution witness No. 1 Shri Pundalik Tukaram Umare viz. the complainant and the evidence of P.W. 2 Shri Madhav Krishna Divekar at Exhibit 22 and the documentary evidence viz. report of the complainant in respect of his visit to the factory of the respondent dated June 22, 1989 and the show cause notice issued to the respondent and the reply furnished by the respondent accused to the said show cause notice and the other documents and the judgment of the learned Magistrate acquitting the accused.
2. Shri Galeria, the learned A.P.P. while taking me through the evidence and the documents, has vehemently urged that the learned Magistrate was not right in acquitting the accused when as per evidence of the complainant and prosecution witness No. 2, the prosecution has proved that the respondent accused has contravened the provisions of Rule 65(3)(i)(a) of the Maharashtra Factories Rules, 1963 which is punishable under Section 92 of the Factories Act. Shri Galeria has contended that even considering defence of the accused, the respondent accused has not denied the visit made by the Factory Inspector on June 22, 1989 and during his visit he found certain irregularities and the respondent accused was called upon by issuing show cause notice and even in reply to the said show cause notice as found that the respondent accused has in terms admitted the fact that the safety valves were not there along with the other irregularities. He accordingly submitted that the learned Magistrate has failed to consider evidence of the prosecution witnesses coupled with defence of the accused wherein the accused has also not denied such violation of Rules under the Factories Act which is punishable under Section 92 of the Factories Act and accordingly prayed that the order of acquittal deserves to be set aside.
3. Shri Ghadge, the learned advocate appearing for the respondent has supported the order of learned Magistrate and he contended that in view of the evidence and admittedly the factory was inspected by the complainant Factory Inspector on June 22, 1989 and in reply to the show cause notice the accused had explained the situation for not providing the safety valve in the factory and further it is also brought to the notice of the complainant that necessary orders were also placed for providing such safety valve and even such valves were not readily available in the market and in reply the accused has prayed for time for about four to six weeks to attach the safety valve and further that even in cross-examination P.W. 1 complainant has admitted that seven days' time was given to the Manager to explain the irregularity and without waiting the complainant had filed the complaint and the same is rightly dismissed by the learned Magistrate by giving cogent reasons and thereby this Court is not required to interfere with the order of acquittal recorded by the learned Court and prayed for dismissal of the appeal. While considering the submissions as contended before me by the learned advocates appearing for the parties, it is necessary for me to examine the order of acquittal recorded by the learned Magistrate in light of the evidence led by the prosecution as found from the complaint dated September 16, 1989, it is case of the complainant that the complainant had visited and inspected the factory of the respondent on June 22, 1989 and during his inspection he found certain irregularities by not following requirements of the provisions of the Factories Act and the Rules. It is the positive case of the complainant that the respondent accused has contravened provisions of Rule 65(3)(i)(a) of the Maharashtra Factories Rules, 1963. It is the positive case of the complainant and as found from the report when the respondent accused were to show cause in respect of breach of the provisions of the Factories Rules, it is the case of complainant that in the factory there were three reactors each having the capacity of 3.5 MT each and in these reactors PEG (polyethylene glycol) and a Catalyst is heated with steam to 12-125 degree centrigrade. Then ethylene oxide, highly flammable gas is passed steadily exothermic reaction occurs which tends to raise the temperature which is controlled at 130 degree C by circulating cold water. Above the reaction mixture a nitrogen blanket is maintained by passing nitrogen at 1.5 to 2.00 kg./cm.2 pressure. Thus reactor is a pressure vessel as defined in Rule 65 (1) (d) and the plant is a pressure plant. As found from the report that none of the three reactors had pressure tank with safety valves to relieve the accidental build up of the excess pressure. Accordingly the accused has contravened the provisions of Rule 65 (3) (i) (a) of the Maharashtra Factories Rules, 1963 and has committed an offence punishable under Section 92 of the Factories Act, 1948. In respect of the visit made by the complainant, P.W. 1, as found in his deposition, Exhibit-10 and as per his evidence the complainant is a graduate in Chemical Engineering and he was working with the Inspection Department and he visited factory of the respondent accused on June 22, 1989. In his deposition he has referred to about What was found which was reflected in the complaint and it is the case of the complainant in his evidence that the respondent in his factory has not provided three pressure valves in three different reactors. In his deposition he has also proved the report submitted in respect of the inspection carried out on June 22, 1989 and the said report is proved which is found at Exhibit 12. As the respondent has violated the provisions of the Factory Rules, the complainant gave show cause notice to the accused on June 26, 1989 and the same was served on the accused. The office copy of the show cause notice is also proved and it is found at Exhibit 30. He has also produced acknowledgment of the notice which was served on both the accused and this acknowledgment receipt is also proved at Exhibit 14. In reply to the show cause notice, the respondent had submitted compliance report in favour of the Factory Inspector as per letter dated July 26, 1989. As found from Exhibit 16, the compliance report submitted by the respondent accused in respect of the inspection report and more particularly in respect of not fitting safety valves, it is their reply which I reproduce as under:
'Regarding fitting of safety valve on the reactors, we have already ordered for required safety valve and hope to complete the same within 4/6 weeks.'
The respondents had also given detailed reply to the show cause notice signed by Shri S.R. Shetty, the Factory Manager/Director. After the compliance report submitted by the respondent in favour of the Factory Inspector, the complainant Factory Inspector had informed the respondent that the explanation rendered is not found satisfactory by giving reasons which I reproduce hereunder:
'(i) You have still not provided the necessary safety valves on the pressure vessels.
(ii) The pressure vessels and pressure plants have still not got examined from the competent person approved by CIF. The test reports are still not received by this office.'
Thereafter the complainant had after obtaining sanction from the Competent Authority had filed complaint against the petitioner accused on September 16, 1989. As found from the record, Exhibit 12, the Inspector of Factory had in paragraph 6 observed that since about two years since the factory has restarted after the previous explosion and his enquiries with Sahashikant Shetty reveals that the pressure vessels have not lasted since. From Exhibit 12 it is clear that in past the factory had an explosion and thereafter the factory was restarted and even when the factory was restarted, no provision is made for providing safety valve to the reactors. It is further found from the evidence of P.W. 2 Madhav Krishna Divekar in cross-examination wherein the witness has in terms stated that the safety valves were not provided and the vessels were okay.
4. In view of the above and even as per the defence, it is not the case of the respondents accused that there was no violation of any of the Rules under the Factories Act and even in reply to the show cause notice as referred to earlier they have stated that they have placed order for required safety valve and they hope to complete the same within 4/6 weeks. This is not permissible and even under the Act or under the Rules no one can give such permission to start factory against violation of the Rule and particularly in the present case there had been an explosion in the factory in past and as found even there were eight workers working in the factory. With this situation if the workers are required to work and if the respondents are permitted to carry on his business to run factory, there is always risk to the workers.
5. Considering the evidence and the reason that has been adopted by the learned Magistrate, by observing that there is no guilty mind of the accused for the alleged offence and the learned Magistrate has also with these observations, recorded the order of acquittal and ignoring the fact that even the accused has admitted contravention of the Rules under the Factories Act, in view of the above, the order of acquittal recorded by the learned Magistrate deserves to be set aside.
6. In my view, the learned Magistrate was only required to consider the evidence led by the prosecution, and as found from the evidence of the complainant who is the person who had visited factory of the respondent and after his visit he had noted contravention of the rules under the Factories Act and show cause notice was issued by giving seven days time and in reply to the show cause notice, the respondent accused has in clear terms admitted that no safety valve was provided on these reactors and he stated that it was not readily available in the market and he will get the safety valve within 4 to 6 weeks. The complainant is not required to wait for this much time. Admittedly the respondent accused has contravened the provisions of the Factories Rules. Therefore, it is not possible for this Court to accept the submissions of Shri Ghadge that the complainant had filed complaint without verifying that thereafter the safety valve was not provided in the respondent's factory and as found from the reply of the accused, the explanation was not found satisfactory by giving reasons and thereafter the complainant after obtaining sanction to prosecute the accused filed the complaint.
7. In the evidence, the prosecution has proved the case beyond reasonable doubt and it is not the case of the respondent that in their Company all the reactors had safety valves. In my view, the order of acquittal deserves to be set aside and the respondent accused is found guilty for the offence under Rule 65(3)(i)(a) of the Maharashtra Factories Rules, 1963. Shri Ghadge, the learned advocate appearing on behalf of the respondent has requested to keep the matter on Tuesday, April 11, 2000 for hearing on the point of sentence. Accordingly the appeal is allowed. The matter is kept on April 11, 2000.
April 11, 2000
8. This appeal was kept today at the request of the advocate Shri Ghadge to enable him to prepare the affidavit of the respondent as well as for hearing on the point of sentence. Accordingly Shri Murthy appeared with Shri Ghadge on behalf of the respondent accused and he has tendered a joint affidavit of respondent Nos. 1 and 2 dated April 11, 2000. I have also heard Shri Murthy, the learned counsel for the respondents as well as Shri Galeria, the learned A.P.P. on the point of sentence. Shri Murthy, the learned counsel appearing on behalf of the respondent has while taking me through the joint affidavit of the respondent has submitted that in view of the fact that the factory was already sold since last ten years to S.M. Dyes and Chemicals Ltd. and even the factory is shut down due to heavy loss. It is further found from the affidavit that the learned Magistrate has acquitted the accused as per order dated July 10, 1991 on a complaint filed on September 16, 1989 and considering the lapse of 11 years from that date and further as the offence is a technical offence, the accused be released on probation and prayed that a lenient view be taken while imposing sentence.
9. On the other hand Shri Galeria, the learned A.P.P. appearing for the appellant has vehemently urged that in view of the fact that the Court has accepted the prosecution case and held that the accused are guilty of the offence under the Factories Act and in view of the fact that if the Court is not inclined to send the accused to jail, this is a case where heavy fine be imposed.
10. After considering the submissions of Shri Murthy and Shri Galeria and considering the joint affidavit of the respondents-accused dated April 11, 2000 and considering the fact that the accused have committed breach of the provisions of the Factories Rules by not providing safety valves and it is also found in the statement of the accused under Section 313 of the Cr.P.C. admitting the fact that the Factory Inspector had visited the factory and, safety valves were not provided and it is further found that even in reply to the show cause notice it is their case that they had placed order and it will take 4 to 6 weeks time to provide safety valve to the reactors. As found from the affidavit that the factory in question is already disposed of by the accused before ten years and thereafter due to heavy financial loss the factory is closed. I am also conscious that breach of the provisions of the Factory Rules had occurred in the year 1989 and the order of acquittal was challenged by the appellant State and the appeal notified for final hearing after nine years and after hearing the appeal the Court has set aside the order of acquittal and convicted the accused and accordingly I am of the view that it is not the case where the accused are required to be sent to jail and, therefore, I am not imposing any substantive sentence on the accused. However, the fact remains that the breach is proved and the accused has not provided safety valve to the reactors and as found from the record that in past there was an explosion and accordingly as the offence is proved and the accused is found guilty of the breach of Rule 65(3)(i)(a) of the Maharashtra Factories Rules, 1963 punishable under Section 92 of the Factories Act, the ends of justice will met if the accused are ordered to pay a fine of Rs. 15,000/- each and in default the accused are ordered to suffer simple imprisonment for one month.
11. Shri Murthy, the learned counsel appearing on behalf of the appellant requests that time be granted to enable the respondent accused to deposit the fine in the Trial Court. . Considering the request of Shri Murthy, the time to deposit the fine is granted and it is directed that the respondent shall deposit the fine with Trial Court on or before May 30, 2000. If the respondent accused fails to deposit the fine amount within the time granted by this Court the accused are directed to surrender to the jail authority to serve out the sentence of imprisonment.