JUDGMENT : The petitioner who was convicted and sentenced to SI for one year under section 92 of the Factories Act, 1948 approached the appellate Court in Criminal Appeal No. 66 of 2005, raising various grounds both on facts and in law. However, Criminal Appeal No. 66 of 2005 was dismissed on 29th January 2015 on the ground that the trial Magistrate did not commit any error in law in convicting him for the aforesaid offence. 2. Md. Zaid Ahmad, the learned counsel for the petitioner submits that before any offence under the Factories Act is held to have been committed the prosecution must first establish that the offence was committed in relation to or in connection to affairs of a factory as defined under section 2(m) of the Factories Act, 1948. 3. This plea has been raised for the reason that at the time of the inspection the petitioner was found engaged in printing business with three associates and nowhere the prosecution has even whispered leave alone establishing that atleast ten workers were working on any day of the preceding twelve months with the aid of power, as provided under section 2(m) which defines “Factory”. 4. The prosecution case which is narrated in the complaint dated 4th August 1999 by the Factory Inspector is that the petitioner was running a factory without any license and though he was given a written notice on 31st May 1999 he did not respond and continued to run the factory without license which is an offence under section 6 of the Factories Act, 1948 and under Rule 4 of the Bihar Factories Rules, 1950. In the trial, the only witness examined by the prosecution was the Circle Inspector who was conferred the powers under the Factories Act. 5. In paragraph no.10 of the judgment in Criminal Appeal No. 66 of 2005, the appellate Court has held as under : “10. Thus it appears from the statement of P.W1 and the materials available on record that on 06.05.1999 some of the factories located at Jainamore were inspected by the Factory Inspector of Bokaro. One press namely Goutam press located at Meena Bazar, Jainamore was also inspected. During the course of inspection his occupier Vinay Vinit Jaiswal was found alongwith three workers in the running press. One press namely Goutam press located at Meena Bazar, Jainamore was also inspected. During the course of inspection his occupier Vinay Vinit Jaiswal was found alongwith three workers in the running press. During the course of inspection the factory was found running without licence which is an offence U/S 6 of the Factory Act 1948 alongwith Section 3 & 4 of Bihar Factory Rules 1950. Besides it the first aid box was also found absent which is an offence U/S 45 of the Factory Act 1948 alongwith Sec. 64 of Bihar factory Rules 1950. The fire extinguisher was also absent inside the factory which is an offence U/S 38 of Factory Act 1948 alongwith Sec. 62 of Bihar Factory Ruels 1950. In this respect the occupier Vinay Vinit was given one letter No. 128 dated 31.05.1999 for submitting reply or taking action but the same was not complied by Vinay vinit Jaiswal. This letter No.128 dated 31.05.1999 is exhibited as mark-1. The Deputy Chief Inspector vide letter No. 170 dated 02.08.1999 had given consent for lodging the case which is exhibited as mark-2. On 04.8.1999 a complaint case was lodged by the Factory Inspector in the Court of A.C.J.M., Bermo at Tenughat in this concern for taking suitable legal action. The application No.215 dated 04.8.1999 is exhibited as mark-3/1 while the Complaint petition is exhibited as mark-3. The detail report of the Factory Inspector was also submitted in favour of prosecution which is exhibited as mark-4. Since the xerox copy has been exhibited but the P.W.1 has admitted in the Court in his examination-in-chief that the original copies are located in the office of the Factory Inspector of Bokaro cercle which can be produced upon demand by the Court. Since the occupier has not complied the direction/show-cause No.128 dated 31.05.1999 issued from the office of the Factory Inspector. This Court find that there is no illegality in holding guilty to the accused/appellant Vinay Vinit Jaiswal by the Court below.” 6. On a glance at the judgments rendered by both the Courts below, this Court does not find any reference to the plea sought to be raised by Md. Zaid Ahmad, the learned counsel for the petitioner. This Court find that there is no illegality in holding guilty to the accused/appellant Vinay Vinit Jaiswal by the Court below.” 6. On a glance at the judgments rendered by both the Courts below, this Court does not find any reference to the plea sought to be raised by Md. Zaid Ahmad, the learned counsel for the petitioner. But at the same time, this Court also does not find any reference as regards employment of ten persons in M/s Goutam Press, Meena Market run by the petitioner at any time of the calendar year in respect to its business. Besides the above, the offence committed by the petitioner under the Factories Act, 1948 is not strictly in the nature of a public offence. A person is convicted and sentenced under section 92 of the Factories Act, 1948 for not complying with the provisions under section 6 of the Factories Act or Rule 4 of the Bihar Factories Rules, 1950. Such non-compliance does not take the colour of criminality stricto sensu and it does not affect the public at large. By now it is well settled that punishment awarded to a convict should be commensurate with the gravity of offence and the Courts are required to weigh mitigating and aggravating circumstances. The learned trial Judge in the order of sentence dated 9th August 2005 did not advert to the mitigating or aggravating circumstances, and there is no reason why a punishment of imprisonment instead of fine should be imposed upon the convict. Section 92 of the Factories Act provides that a person guilty of an offence shall be punished with imprisonment for a term which may extend to 2 years “or” with fine which may extend to Rs. One Lakh “or” with both. 7. The petitioner has brought on record medical report of Christian Medical College Vellore-4 which would indicate that he is suffering from serious renal disease. Md. Zaid Ahmad, the learned counsel for the petitioner submits that by an order dated 31st July 2017 the application seeking exemption from surrendering was allowed by a co-ordinate Bench of this Court on the ground that the petitioner is suffering from kidney ailment and he has to regularly undergo dialysis. 8. Md. Zaid Ahmad, the learned counsel for the petitioner submits that by an order dated 31st July 2017 the application seeking exemption from surrendering was allowed by a co-ordinate Bench of this Court on the ground that the petitioner is suffering from kidney ailment and he has to regularly undergo dialysis. 8. Having regard to the aforesaid facts and circumstances in the case, this Court is of the opinion that it would serve the interest of justice if the punishment of SI for one year is converted into punishment of fine to the extent of Rs.25000/- to be paid by the petitioner within a period of six weeks. 9. Accordingly, while affirming the judgment of conviction of the petitioner the order of sentence dated 9th August 2005 as affirmed by the appellate Court in Criminal Appeal No. 66 of 2005 is set-aside and the petitioner is sentenced under section 92 of the Factories Act, 1948 to punishment of fine of Rs.25000/-. 10. Criminal Revision No. 483 of 2015 is partly allowed, in the aforesaid terms. 11. Let the lower Court records be sent to the Court concerned, forthwith.