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2011 DIGILAW 677 (GUJ)

Surat Electric Co Ltd v. G. D. Naik, Inspector

2011-09-16

D.H.WAGHELA

body2011
JUDGMENT : D.H. Waghela, J. The petitioner has filed this petition under Section 401 of the Code of Criminal Procedure with the prayers to call for the record and proceedings of Criminal Appeal No. 3 of 1994 and quash judgment and order dated 29.01.1994 of learned JMFC in Shop Case No. 1473 of 1989 as well as judgment dated 25.10.2004 of learned Sessions Judge, Surat, in Criminal Appeal No. 3 of 1994. By the original judgment dated 29.01.1994, learned JMFC has convicted the petitioner for offences punishable under Sections 7(4), 51, 62(a)(b) read with Section 23(5) of the Bombay Shops and Establishments Act, 1948, and imposed fine of total Rs. 1,000/- and, in default, simple imprisonment for one month. 2. Short facts of the case are that, on 23.01.1989, the complainant-inspector had visited the office of the petitioner and found that provisions of the Bombay Shops and Establishments Act, 1948 (for short 'Act') were violated in several respects. Upon the criminal case being filed, the petitioner put up a defence that as the company of the petitioner was registered under Factories Act, provisions of the Shops Act did not apply to it. During the course of trial, the petitioner had examined the factory inspector and relied upon his oral testimony to submit and substantiate the defence that the office of the petitioner inspected by the complainant was part of the factory and covered by the license issued under the Factories Act, 1948. 3. Learned counsel for the petitioner vehemently argued that there was no evidence to suggest that the administrative office inspected by the complainant was not the part of premises of the factory of the petitioner in respect of which license was issued under the Factories Act. The relevant provisions of Section 70 of the Act clearly stipulate that nothing in the Act shall be deemed to apply to a factory and the provisions of the Factories Act, 1948, shall, notwithstanding anything contained in that Act, apply to all persons employed in and in connection with the factory. However, it is provided that, where any shop or commercial establishment situate within the precincts of a factory is not connected with the manufacturing process of the factory, the provisions of the Act shall apply to it. 4. However, it is provided that, where any shop or commercial establishment situate within the precincts of a factory is not connected with the manufacturing process of the factory, the provisions of the Act shall apply to it. 4. It could not be gainsaid that in spite of full opportunity to lead evidence in defence and produce the factory license before the trial court, the petitioner failed to do so. According to express and simple provisions of the Evidence Act, 1872, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person, according to Section 103 of the Evidence Act. It is further provided in Section 105 of the Evidence Act that, when a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the exceptions in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances; and Section 106 further clarifies in no uncertain terms that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. 5. Here, in the facts of the present case, whether the premises, which was admittedly an administrative office, was included in the precincts of the factory of the petitioner was in special knowledge of the petitioner and admittedly, in fact, the factory license was annexed with the plan of the factory. Under such circumstances, the burden of proving exemption from the provisions of the Act was squarely upon the petitioner which failed to discharge it in spite of adequate opportunity and examination of witnesses. Therefore, no cause for interference with the impugned judgment and order is made out, and hence, the petition is dismissed. Petition dismissed.