Municipal Corporation of Delhi vs Ved Sayal Kumar Ice Factory

O.N. Vohra and Anand Sarup, JJ.

(1) Inspector, Department of Factories, Delhi Municipal Corporation, visited Kumar Ice Factory at 14, Upper Bela Road;, Jamuna Ice Factory at 16, Upper Bela Road and Friends Ice Factory at 18, Upper Bela Road, on 7/06/1969 and again on 10/06/1969 and found that the ice factories were being run by electricity by Ved Sayal, DesRaj and Lochan Singh, respectively, in the absence of any license issued bythe Commissioner, Delhi Municipal Corporation under Sections 416 and 417 of Delhi Municipal Corporation Act, 1957 hereinafter referred to as the Act. Accordingly, he prepared challans on the basis of which six complaints were prepared and were filed before the Magistrate by Inspector Raghbir Saran, Office Inspector, Prosecution Department, Delhi Municipal Corporation, who was competent to file the same by virtue of an order passed by the Commissioner, Delhi Municipal Corporation, copy whereof is Ex. PE. The complaints in respect of the first visit came up on June 11, 1969 when Ved Sayal, DesRaj and Lochan Singh were asked to show cause why they should not be convicted under Sections 416 and 417 read with Section 430 of the Act. They pleaded not guilty and took the stand that licenses had been applied for similar show cause notices in regard to complaints in respect of second visit were given to these persons on November 5, ] 969 and they pleaded not guilty. Three separate trials in respect of both the notices ensued. On behalf of Municipal Corporation of Delhi, Anand Sarup appeared as Public Witness Public Witness 1and spoke about the two visits paid by him. He swore that Ved Sayat, DesRaj and Lochan Singh were found running the three factories, namely, Kumar Ice Factory, Jamuna Ice Factory and Friends Ice Factory, in the absence of any license issued by the Commissioner, Municipal Corporation of Delhi in the names of these factories. Raghbir Saran appeared as Public Witness Public Witness 2and proved his reports Ex. Pa and Ex. Pb in regard to the two visits and complaints Ex. Pc and Ex. Pd, which had been filed on the basis of the said reports .He swore that be was authorised to file complaints on behalf of the Commissioner ,Municipal Corporation of Delhi, and produced Ex. Pe, copy of order passed by the Commissioner in that behalf.

(2) Ved Sayal, Des Raj and Lochan Singh admitted that they were running their respective ice factories with the help of electricity on the dates and timings which were put to them but denied visits having been paid by Anand Sarup. They filed written statements on identical lines contending that ice factories were set up as far back as the year 1948 or 1949 and they were issued single license for running the factory by the Notified Area Committe but subsequently on the coming into existence of the Municipal Corporation of Delhi in the year 1958, their licenses were renewed up to 31/03/1969. They further stated that in the year 196 , Delhi Municial Corporation issued notification for issuance of trade licenses in regard to factories situated in conforming as well as non-conforming areas and they requested for issuance of such licenses but despite long correspondence they had and legal notices which were served. Municipal Corporation of Delhi withheld renewal of licenses by acting in the most in discriminatory fashion.

(3) In defense Shri Mangey Ram (DW2), Deputy Assessor & collector, Shri Bansi Lal (DW3), Zonal Assistant Commissioner, S.P. Zone and Shri H.L. Gupta, (DW3), license Clerk, Civil Lines Zone, all belonging to the Municipal Corporation of Delhi, were examined. Subsequently, Shri R.L.Gupta was examined as CW.1. The pith and substance of the evidence of these witnesses was that Ved Sayal, Des Raj and Lochan Singh applied for renewal of licenses for their factories in April 1969 and the licenses were renewed in the year 1969-70 or for even subsequent period but those licenses were for sale and manufacture of ice issued by the Health Department of Municipal Corporation of Delhi whereas these persons were required to obtain separate licenses for running of factories by electricity from Factory Department of the Municipal Corporation of Delhi.

(4) Shri B.L. Anand, Judicial Magistrate, 1st Class, Delhi, vide his separate judgments passed on 3/04/1972 found firms Kumar Ice Factory, Jamuna Ice Factory and Friends Ice Factory guilty of having Contravened the provisions of Section 417 of the Act punishable u/s 461 of the Act and imposed on each of the firms a fine of Rs. 1,000.00.

(5) Feeling aggrieved the three firms filed three separate appeals before the Sessions Judge, Delhi. The appeals came up before Shri M.K. Chawla, Additional Sessions Judge, Delhi for hearing. It was submitted before the learned Additional Sessions Judge that complaints had not been filed by a duly authorised person and, Therefore, the trials stood vitiated on that count .It was also submitted that from the facts which bad come on the record, it was manifest that the prosecution was barred by limitation. Both these objections found favor with the learned Additional Sessions Judge who further took the view that there was no merit in the contention that the three firms were required to obtain separate sets of licenses from the Department of Health and Department of Factories and if that were so, the Commissioner of Delhi Municipal Corporation should have made it clear to the three firms that they were so required. The result was that the three appeals were accepted vide consolidated judgment dated 8/12/1972.

(6) Peeling dissatisfied with the judgment of acquittal, the Delhi Municipal Corporation has preferred Criminal Appeal No. 101 of 1973 in respect of Kumar Ice Factors, Criminal Appeal No. 102 of 1973 in respect of Jamun Ice Factory and Criminal Appeal No. 103 of 1973 in respect of Friends Ice Factory. Inasmuch as common questions of law and fact are involved ,it would be expedient to dispose of these three appeals by a single judgment .

(7) It is submitted by Shri Maheshwar Dayal, learned Counsel appearing for Municipal Corporation of Delhi, that Raghbir Saran was a person duly authorised by the Commissioner, Municipal Corporation of Delhi to make complaints and that the complaints were actually made and no objection in this behalf was raised before the learned Magistrate and, Therefore, the finding of the learned Additional Sessions Judge that complaints had not been filed by a person duly authorised is wholly unwarranted. After having been led through the records it is found that reports in regard to two dates when the ice factories were visited. Ex. Pa and Ex. Pb in each case are on one side and complaints Ex. Pc and Ex. Pd are on the reverse of the same sheets .All the complaints bear the signatures of Raghbir Saran and it is not in dispute that he was a person duly authorised by the Commissioner, Municipal Corporation of Delhi u/s 467 of the Act. The provision, in substance, creates an embargo on holding trial for any offence made punishable by or under the Act except on the complaint of, or upon information received from the Commissioner etc. or a person authorised by the Commissioner etc. by general or special order in that behalf. It appears that Raghbir Saran stated in answer to a question put in cross-examination that he received the reports Ex. Pa and Ex. Pb on 12/06/1969 and filed complaints in Court on that very day. The learned Additional Sessions Judge got so much bogged down by this submission, which was partially correct, that he came to the conclusion that it could not be said that both the complaints had been filed in accordance with the provisions of Section 467 of the Act. This conclusion is manifestly erroneous and unwarranted. The complaint Ex. Pc bears the date 6/06/1969 and happens to be on the reverse of the sheet bearing report Ex. Pa which pertains to the visit paid on 7/06/1969. There is a specific mention that the respondents had been directed to appear before the Municipal Magistrate on 9/06/1969. The judicial record shows that the complaint was put up on that day and appearance was entered on behalf of the respondents as well as the Counsel. Not only this, notices u/s 242 of the Criminal Procedure Code were given to the respondents and their pleas of not guilty were recorded. These facts when put to Shri Prabhash Chand Mathur. learned Counsel who represented the respondents before the Magistrate, were not denied. It, Therefore, follows that what wag stated by Raghbir Saran in cross-examination pertained to the one set of complaints Ex. Pd which appears on the back side of the report Ex. PB. The complaints bear the date 12/06/1969. The fact that after the transfer of the case from the Magistrate who took cognizance on 9/06/1969, fresh notices in regard to subsequent complaints dated 12/06/1969 were issued and fresh pleas of not guilty were recorded, gives strength to the conclusion that the two complaints were filed on June 9 and June 12, 1969 which were the dates intimated to the respondents for appearance before the Magistrate.

(8) It is next submitted that the findings of the learned Additional Sessions Judge that the prosecutions were barred by limitation is hot sustainable inasmuch as the violation with which the respondents'' were( charged came to notice within six months of the filing of the complaints as provided by Section 471 of the Act.'' There is obvious force in this contention. Section 416(1) of the Act provides that no person shall, without the previous permission in writing of the Comnussioner,'' establish in any premises or materially alter ,enlarge or extend, any factory, workshop or trade premises in which IT is intended to e.i ploy steam, electricity, water or other mechanical power and ,Therefore, no complaint against establishing, materially altering of any factory etc. alter the expiry of six months, from the date , the Commission of such an offence or the date on which the commission or existence of suchan offence was first brought to the notice of the Municipal Corporation of Delhi ,could be filed. Herein we are concerned with the violation of the provisions of Section 417 of the Act. The relevant portion of this Section says that no person shall use any premises for any of the purposes without or otherwise than in conformity with the terms of a license granted by the Commissioner .Clause (a) of sub-section (1) mentions any of ''the purposes specified in Part I of the Eleventh Schedule", and such item (xxxi) pertaining to manufacturing is ice (including dry ice). According to the scheme of the Act, licenses are issued from year to year. The visits in these cases were paid by the Inspector during the year 1969-70. The respondents ''were found running ice factories by using electricity. They were not in possession of any license issued by the Commissioner u/s 417 of the'' Act. The complaints were filed within a couple of days of the detection of the violation. No consideration, in the circumstances, of prosecutions being barred and6rSection 471 of the Act, at all, arises. It appears that the learned Additional Sessions Judge completely misdirected himself by excessively relying upon the statement of Mangey Ram who stated on the basis of an office note to which no finality attached that the respondents were issued licenses by''( he Notified Area Committee prior to the coming into force of the Act and that no licenses had been issued after 31/03/1958 or Mar 31/03/1959. The offence of running factory without license is a continuing offence and if prosecution for violation of Section 417 of the Act is launched within six months of the detection of the violation in a particular financial year, it is not possible to say that the bar of limitation arises.

(9) On merits, the acquittals were wholly unjustified. Although the respondents pleaded not guilty on 9/06/1969 they admitted that they were not in possession of licenses. They admitted that they had applied for licenses .Submission of an application for license or payment of license fee in anticipation of the grant of the license may, in certain circumstances. Constitute factors which have bearing on the consideration of quantum of sentence once violation of the provision of Section 417 of the Act is found to have been established but these have no relevance when the point for determinations whether there was violation inasmuch as something was done without procuring license when there was prohibition against doing of that thing in the absence of a license. Learned Counsel for the respondents have taken us through the evidence of the three witnesses examined in defense and the last one who was again called as a Court witness. We have also been shown receipts in regard to payment of certain amounts on account of license fees v ell as penalty to the Health Department. Inasmuch as it was claimed that everything that was required of the respondents in the matter of procuring licenses had in fact been done and licenses had been withheld without just cause, we called for the records of the Municipal Corporation of Delhi and found that in regard to the alleged payments for the period from 1972 to1980, licenses had been renewed by Zonal Health Officer on receipt of license fees and penalties licenses had been issued but those licenses were licenses prescribed by Rule 50 of the Prevention of Food Adulteration Rules ,1955. Administration'' Circular No. 161 dated 14/03/1960 comprises of two parts. The first part states that with effect from 1/04/1960licensing of food shops and the allied traders will be done, regulated and controlled in accordance with the provisions of, the Delhi Prevention of FoodAdulteration Rules, 1956 and para 2 mentions .rates for original license or its renewal after one month from the expiry of the previous license. Item 9of the Schedule pertains to manufacture of ice and Item 10 pertains to sale office .Rule 7 of Delhi Prevention of Food Adulteration Rules, 1956 contains scale of fee for the issue and. renewal of license for each trade as fixed by local authority concerned in its local area and mentions maximum rates which could be fixed for manufacture of ice and sale of ice against Items 11 and 12. It is manifest that respondents sought renewal of licenses under the Prevention of Food Adulteration Rules and had last succeeded in their endeavor. This if, however, wholly irrelevant for determining their liability for having violated the provisn of Section 417 of the Act. The witnesses examined in defense have been categorical that besides the license required under the Prevention of Food, Adulteration Rules, another license issued by the Factories Department of the Municipal Corporation of Delhi is incumbent. The observations of the learned Additional Sessions Judge that if it were so, the respondents should have clearly notified is to say the least wholly uncalled for .Every citizen is expected to know the law of the land and ignorance thereof can never furnish an excuse. In the instant case, however, the respondents'' knew that they were required to have a license from the Factories Department of the Delhi Municipal Corporation and they were running their factories in the hope that they would be granted the license. The license in writing, is a condition precedent for the working of an ice factory under the Municipal Corporation Law and once that fact is admitted or established, the necessary conclusion is in regard to guilt of the respondents. It would also be seen that the respondents have brought on record copy of notice dated 24/06/1969 served by them through Gauri Shanker, Advocate, on the Commissioner, Municipal Corporation of Delhi. It is mark ''A''. In para4 of this it is mentioned that the respondents were granted health licensel by the health Department of the Municipal Corporation of Delhi but the otter licenses known as trade licenses were required to be issued by the Licensing Department of the Municipal Corporation of Delhi and which had been applied for but had been withheld despite issuance of many reminders and personal approaches by the respondents. It cannot, Therefore, be said that the respondents were not aware of the requirement of the law, namely, the issuance of licenses for running factories in the premises by use of electricity in addition to the health license which was required under the Prevention of Food Adulteration Rules, 1955.

(10) For the foregoing reasons, the acquittals of the respondents must be held to be wholly illegal, and unjust besides being contrary to the facts established on record. Accordingly, we accept these appeals and set aside the impugned judgment dated 8/12/1972 of the Additional Sessions Judge and restore the judgment dated 3/04/1972 of the Judicial Magistrate 1st Class, Delhi. A period of 15 days is allowed for payment of the fine.