S. B. MAJMUDAR, J. ( 1 ) THESE two appeals against an acquittal order are preferred by the State of Gujarat and Surat Municipal Corporation challenging the order of acquittal passed by the learned Judicial Magistrate (F. C.) Surat (Municipal) in Shop Establishment case No. 1052/77 acquitting respondent No. 1 accused of the offence pertaining to the alleged breach of sec. 18 (1b) (b) of the Bombay Shops and Establishments Act 1948 hereinafter referred to as `the Act. As both the appeals arise out of the same case they are heard together and are being disposed of by this common judgment. ( 2 ) THE prosecution case against respondent No. 1 accused in short is that the accused on 3-7-1977 was running a grocery shop in Ward No. 8 in Gopipura Vorvad Surat. The said shop of the accused was named Jalaram Stores. For Ward No. 8 Sunday was the closed day of the week as per the provisions of sec. 18 (1b) (b) of the Act. It was further the case of prosecution that in spite of the fact that Sunday was a closed day the accused had kept the shop open on that day i. e. on 3-7-1977 which was a Sunday and hence he had committed breach of the provision of sec. 18 (1b) (b) of the Act. Accordingly a complaint was filed by the Shop Establishment Inspector of Surat Municipal Corporation before the Judicial Magistrate Surat after obtaining necessary sanction from the Municipal Commissioner against respondent No. 1-accused. ( 3 ) RESPONDENT No-1-accused pleaded not guilty to the charge. The learned Judicial Magistrate came to the conclusion that even though Sunday was a closed day for all shops in Surat Municipal Ward No. 8 the accused wanted permission to close his shop on Thursday instead of Sunday every week and for that he had already applied to the competent authority for permitting him to do so and to change over closed day from Sunday to Thursday. That application was rejected subsequently. That application was rejected subsequently. The learned Magistrate found that the request was wrongly refused and a businessman must be free to choose any day of a week for closure otherwise any restriction in that respect affected the religious and other freedom of a person and hence it was unconstitutional and it was not in the interest of justice to impose restriction to compel a person to close his shop on a particular day in a week. On the aforesaid reasoning the accused came to be acquitted of the offence with which he was charged. ( 4 ) AS stated above it is the aforesaid order which has prompted the Surat Municipal Corporation to prefer Criminal Appeal No. 344/78 and the State of Gujarat also joined the Corporation by filing separate Criminal Appeal No. 410/78 of course challenging the same order passed by the learned Magistrate in favour of respondent No. 1. Mr. J. M. Panchal learned P. P. appearing for the appellant as well as Mr. K. J. Shethna appearing for the Municipal Corporation have contended before me that the learned Magistrate was obviously in error in holding that if the businessman was required to keep his shop closed on a particular day of the week which may not be of his choice it amounted to an unreasonable restriction on his fundamental right. It was further submitted by them that in any case though the learned Magistrate was of the view that sec. 18 (1b) (b) of the Act was ultra vires the Constitution the learned Magistrate could not have himself decided that point but he ought to have made a reference to this Court under sec. 395 of the Cr. P. C. Mr. J. C. Sheth learned Advocate appearing for respondent No. 1 accused fairly stated before me that it was impossible for him to endorse the reasoning of the learned Magistrate to the effect that the provisions of the Act impose unreasonable restrictions on the fundamental right of a businessman to carry on his trade. He did not seek to support the acquittal on that ground. In view of the aforesaid posture adopted by the learned Advocate of the accused it was not necessary for the to go into the wider question whether the provisions of sec. He did not seek to support the acquittal on that ground. In view of the aforesaid posture adopted by the learned Advocate of the accused it was not necessary for the to go into the wider question whether the provisions of sec. 18 (1b) (b) of the Act are ultra vires Article 19 of the Constitution or not nor is it necessary for me to go into the further question as to whether the learned Magistrate should be called upon to reconsider the question and to Follow the procedure of sec. 395 of the Cr. P. C. in the present case. ( 5 ) MR. J. C. Sheth learned Advocate appearing for respondent No. 1 however submitted before me that the order of acquittal as passed by the learned Magistrate was ultimately correct on merits. Mr. Sheth urged that it was true that for ward No. 8 of Surat Municipal Corporation the local authority had issued a notification choosing weekly holiday as Sunday as shown by the notification at Ex. 4. Mr. Sheth also accepted the fact that the accused had kept his shop open on the date of the incident which was a Sunday. But according to Mr. Sheth the accused was entitled to do so under the bona fide belief that he had already made an application on 28 to the competent authority under the Act to permit the accused to keep weekly off on Thursday instead of on Sunday. The said application was pending when the shop inspector visited the shop of the accused on 3 as the application of the accused came to be rejected only on 4 as seen from Ex. 15 the intimation issued by the Chief Shop Inspector. The accused was under a bona fide impression that he was entitled to keep Thursday as weekly off day instead of Sunday. On the aforesaid submission Mr. Sheth contended that the accused cannot be held guilty of any breach of sec. 18 (1b) of the Act. It is difficult to accept the said submission of Mr. Sheth. The admitted facts reflected by the record of the case are that the shop of the accused was situated in Ward No. 8 of Surat City and for Ward No. 8 the Surat Municipal Corporation had fixed Sunday as weekly off day for all shops and establishments in exercise of its power under sec. Sheth. The admitted facts reflected by the record of the case are that the shop of the accused was situated in Ward No. 8 of Surat City and for Ward No. 8 the Surat Municipal Corporation had fixed Sunday as weekly off day for all shops and establishments in exercise of its power under sec. 18 (1b) (a) of the Act. It is also an admitted position on the record that the accused even though knowing that Sunday was day of weekly off for his shop had kept his shop open on the day of the incident i. e. on 3-7-77 which was a Sunday. The application of the accused dated 28-6-77 itself shows that there was a direction to keep his shop closed on Sunday every week. But he wanted to change the said weekly off from Sunday to Thursday and even though he had applied to the authority for that the accused well knew that Sunday was the weekly off day. In spite of this fact he had kept his shop open. In the light of the aforesaid admitted facts on record it is not possible to accept the submission of Mr. Sheth that the accused was under a bona fide impression that it was permissible for him to keep his shop open on other weekly off day and that he had not committed any conscious breach of the provisions of sec. 18 (1b) of the Act. The relevant provisions of sec. 18 (1)- (1b) are as under :"18 (1) Every shop and commercial establishment shall remain closed on one day of the week Except where the day is fixed under sub-sec. (1b) the employer shall prepare a calendar or list of such closed days notify such calendar or list to the Inspector and specify it in a notice prominently displayed in a conspicuous place in the shop or commercial establishment. Such calendar or list shall be prepared in the beginning of the year but in case of a shop or establishment to which this Act becomes applicable for the first time after the beginning of a year the first calendar or list for the remaining part of the year shall be prepared before the expiry of one month from the date of the application of this Act thereto. (1a) Notwithstanding anything contained in sub-sec. (1) but except where the day is fixed under sub-sec. (1a) Notwithstanding anything contained in sub-sec. (1) but except where the day is fixed under sub-sec. (1b) a shop of commercial establishment may remain open on any day notified as a closed day under sub-sec. (1) if (a) it remains closed on any other day of the week. and (b) the employer has notified to the inspector his intention to close the shop or the commercial establishment as the case may be on the day substituted under clause (a ). at least seven days before the substituted day or the day notified as closed day under sub-sec. (1) whichever is earlier. (1b) (a) Notwithstanding anything contained in sub-sec. (1) in respect of any area within the jurisdiction of local authority the local authority and in respect of any other area the State Government may by an order published in the prescribed manner fix the day on which a shop or commercial establishment shall remain closed every week and different days may be fixed with reference to different classes of shops or establishments different parts of the same area or different period of the year; (4) Every shop and commercial establishment to which such other applies shall remain closed accordingly; Provided that nothing in this clause shall apply to a shop or commercial establishment the employer of which has notified to the Inspector at the beginning of the year his intention to close the shop or establishment on a public holiday within the meaning of the Negotiable Instruments Act 1881"a mere glance at the aforesaid provisions of sec. 18 shows that once in any area the local authority has published an order fixing a day on which the shop or commercial establishment has to be closed the shop or commercial establishment has got to remain closed on that day. If by duly published order Sunday is fixed as a weekly off day as directed by the local authority every shop and establishment in that locality has got to remain closed on that day. In spite of such directive if a shopkeeper keeps his shop or establishment open on a closed day it would necessarily amount to breach of the statutory provisions. There is no question of mens rea or absence of mens rea involved in such a case. Such statutory breaches reflect wrongs of absolute liability. In spite of such directive if a shopkeeper keeps his shop or establishment open on a closed day it would necessarily amount to breach of the statutory provisions. There is no question of mens rea or absence of mens rea involved in such a case. Such statutory breaches reflect wrongs of absolute liability. Mere breach of the statutory provisions would entail legal consequences provided by the statute for such breaches. It is not for any one to urge that he committed such breach with bona fide intention. Under the circumstances it is difficult to uphold the submission of Mr. Sheth that even though the accused had committed breach of sec. 18 (1b) of the Act he had done it with bona fide intention and he deserves to be acquitted. Admittedly the accused had kept his shop open on Sunday which was a closed day fixed by the local authority in that particular locality where his shop was situated. Hence the provisions of sec. 52 (b) of the Act were clearly attracted and it can easily be said that for the establishment of the accused there was contravention of the provisions of sec. 18 (1b ). Once that is established the employer concerned would entail this liability to be convicted for such an offence. Under the circumstances it must be held that the accused had committed breach of the provisions of sec. 18 (1b) (b) of the Act and hence he would be liable to be convicted under the provisions of sec. 52 (b) of the Act. 6 So far as the question of sentence is concerned it cannot be gainsaid that the accused had already made an application to the competent authority to permit him to close his shop on Thursday instead of Sunday and such an application was till then pending when the Inspector visited the shop of the accused on 3-7-1977. Hence the accused may have entertained a bona fide impression and belief that during the pendency of the application he could keep his; shop closed on Thursday instead of on Sunday. But that may not exonerate him of the offence with which he was charged still this circumstance will have a very material bearing on the question of sentence to be imposed on him. Sec. 52 of the Act provides a minimum fine of Rs. 25. 00 and maximum fine of Rs. 200. 00. Mr. But that may not exonerate him of the offence with which he was charged still this circumstance will have a very material bearing on the question of sentence to be imposed on him. Sec. 52 of the Act provides a minimum fine of Rs. 25. 00 and maximum fine of Rs. 200. 00. Mr. Sheth submitted that now the accused was already closing his shop on Sundays. Under the circumstances taking an overall view of the matter I think the accused must be given minimum sentence of fine of Rs. 25. 00 and nothing more These two acquittal appeals are allowed the Order of acquittal passed by the learned Magistrate in shop case No. 1052 of 1977 against the accused is set aside. The accused is convicted of the offence of committing breach of sec. 18 (1b) of the Act and is sentenced to pay a fine of Rs. 25. 00 in default to undergo S. I. for four days. The accused is given a fortnights time to deposit the amount of fine in the trial Court. Appeals are accordingly allowed. .