S. L. TALATI, J. ( 1 ) THE petitioner was an accused person in Criminal Case No. 1763 of 1979 in the Court of the Judicial Magistrate First Class Gandhidham-Kutch. In that case complaint was filed against him that when shop Inspector of Gandhidham Municipality visited his cabin where he was carrying on business of Sweets and Farsan on 27-7-79 it was found that he had not exhibited a notice stating that a particular day will he a weekly holiday and further that he had not submitted annual list of holidays and thus contravened the provisions of sec. 18 (1) of the Bombay Shops and Establishments Act 1948 Ultimately the learned Judicial Magistrate First Class Gandhidham-Kutch held the accused guilty for an offence punishable under sec. 18 (1) of the Bombay Shops and Establishments Act 1948 (herein after referred to as the Act) and sentenced him to pay a fine of Rs. 75. 00 in default of payment of fine to suffer simple imprisonment for 8 days. That conviction came to be con- firmed by the learned Sessions Judge Bhuj-Kutch in Criminal Revision Application No. 37 of 1980. ( 2 ) THEREAFTER again on 8-8-80 another complaint was filed against the accused and it was Criminal Case No. 1320 of 1980. That complaint was also in regard to the same offence which was detacted according to the Shop Inspector on 14-5-80. This application is filed in this Court to get the conviction set aside which was recorded by the Judicial Magistrate First Class Gandhidham-Kutch as confirmed by the Sessions Judge Bhuj and also for quashing the proceedings which are initiated on 8-8-80 by filing Criminal Case No. 1320 of 1980. ( 3 ) WE have heard the learned Advocate Mr. A. K. Mankad for the petitioner and Mr. Akshay Mehta for the Gandhidham Municipality and learned P. P. Mr. C. K. Takwani for the State. It may be stated that an error of law has been committed and therefore the conviction is required to be set aside and so also the proceedings initiated by filing another Criminal Case No. 1320 of 1980 are required to be quashed for the reasons that follow. ( 4 ) SEC. C. K. Takwani for the State. It may be stated that an error of law has been committed and therefore the conviction is required to be set aside and so also the proceedings initiated by filing another Criminal Case No. 1320 of 1980 are required to be quashed for the reasons that follow. ( 4 ) SEC. 4 of the Act reads as under:"4 : Notwithstanding anything contained in this Act the provisions of the Act mentioned in the third column of Schedule II shall not apply to the establishments employees and other persons mentioned against them in the second column of the said Schedule :provided that the State Government may by notification published in the Official Gazette add to omit or alter any of the entries of the said Schedule subject to such conditions if any as may be specified in such notification and on the publication of such notification the entries in either column of the said Schedule shall be deemed to be amended accordingly. (2) : Every notification issued under the proviso to sub-sec. (1) shall be laid for not less than thirty days before the State Legislature as soon as possible after it is issued". Now this section is required to be read with Entry appearing at S. No. 89 in Schedule II which reads as under;s. No. Establishments employees or Provisions of the Act. other person. 1 2 3 89 Shops dealing wholly or princi- Secs. 10 11 16 and 18 subjects to pally in preparation and/or sale the following conditions namely :- of sweets and farsan. (1) Opening and closing hours shall not be earlier than 5 A. M. and later than 11 P. M. respectively. (2) No employees shall be required or allowed to commence work earlier than 4. 30. A. M. and to work later than 11. 30 P. M. (3) the spread-over of an employee shall not exceed fourteen hours. (4) The employees concerned are given one day in a week as a holiday and no deduction from wages is made on account thereof. It was tried to be argued that this case would fall in condition No. 4 and the employee concerned is given one day in a week as a holiday without deducting wages that weekly holiday is required to be published and list was required to be given. Such an argument cannot be accepted. Clearly by sec. It was tried to be argued that this case would fall in condition No. 4 and the employee concerned is given one day in a week as a holiday without deducting wages that weekly holiday is required to be published and list was required to be given. Such an argument cannot be accepted. Clearly by sec. 4 and by Entry 89 provisions of the Act namely secs. 10 11 16 and 18 are not to be applied at all except the conditions which are mentioned and they are four in number. Condition 4 would only require that if there is an employee kept in the establishment that em- ployee must be given a holiday once a week and for that holiday his wages should not be deducted. It is not the case of the petitioner that any employee was kept or that he was not given holiday once a week or that holiday was given and the wages were deducted. The case filed is that no notice is placed that the employee shall have a holiday on a particular day that is the requirement of sec. 18 which does not apply to the establishment where sale of Sweets and Farsan is to be made. Under these circumstances it is clear that there is no breach of condition 4 mentioned in the third column of Entry No. 89 and therefore the conviction of the petitioner is required to be set aside and it is to be held that he cannot be prosecuted for the alleged breach of sec. 18 (1) of the Act. ( 5 ) THE result would be that the petition is allowed and the convic- tion of the petitioner recorded by the learned Judicial Magistrate F. C. Gandhidham-Kutch on 30/04/1980 and confirmed by the Learned Sessions Judge Bhuj-Kutch on 13-1-81 are set aside. Proceedings initiated by filing a complaint dated 8-8-80 being Criminal Case No. 1320 of 1980 are hereby quashed. Fine if paid be refunded. Rule made absolute. Petition allowed. .