Accused. - Golaghatgolaghatjudiciary.gov.in/jmnt/2017/mar/mn bkt/CR 44 of 2015 14.03... · 11.Now let me turn to point (iv) as formulated above. Before going into details of the evidence

CR 44 OF 2015 Page 1 of 15

Written and corrected by me

Saptarshi Garg, JMFC, Bokakhat

IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS: BOKAKHAT:GOLAGHAT.

Case No. C.R. 44 of 2015 u/s 92 of The Factories Act, 1948.

State of Assam

-vs-

SMTI BINITA DEVI NIMODIA

-------------Accused.

Present: - Shri S.Garg BA.LLB,AJS. J.M.F.C.,Bokakhat,Golaghat.

Advocates appeared in the case:-

Smti M.Baruah, A.P.P ………………….. For the State.

Shri R.Uzir …………………. For the Accused.

Date of Evidence:- 01.11.2016 Date of Argument:- 09.03.2017 Date of Judgment:- 14.03.2017

J U D G M E N T

1. Complainant’s case in brief is on 17-11-2015 Shri Arup Bordoloi, Inspector of

Factories; Zonal Factory Office, Jorhat submitted an offence report before learned

Chief Judicial Magistrate, Golaghat, alleging inter alia that during his inspection of

M/S Balaji Energy Station at Bokakhat, District Golaghat on 16-05-2015; he noticed

serious violation of the important provisions of the Factories Act viz. breach of Rules

3 and 4 of Assam Factories Rules 1950 read with section 6 and 7 of the Factories

Act, 1948 for Registration and grant of factory license and also breach of rule 101 of

Factories Rules 1950 for non complying with the letter issued by him dated 18-05-

2015 and thus making herself liable for punishment u/s 92 of the Factories Act,

1948.

2. On receipt of the complaint, the case was forwarded to the Court of SDJM (M),

Bokakhat and vide order dated 20.11.15 the case was registered and transferred to

this Court for disposal. In pursuant to the Court process, cognizance was taken

against the accused Smti Binita Devi Nimodia and summons were issued to the

accused. Thereafter, accused appeared before the Court and was allowed to remain

CR 44 OF 2015 Page 2 of 15



on bail. Copies of the complaint petition and the documents were furnished to her.

Substance of accusation u/s 92 of the Factories Act, 1948 are read over and

explained to the accused to which she pleaded not guilty.

3. During trial, complainant side examined only the complainant as P.W.1. Accused was

examined u/s 313 Cr.P.C. Defence examined none. From the trend of cross-

examination and the answers given in the Sec. 313 Cr.P.C. examination it appears

that the defence case is total denial except about the ownership of the petrol pump.

Accused took the plea that she has not received any notice from the Factory

Inspector. It is also the case of the defence that the Factory Inspector did not visit

the M/S Balaji Service Station as alleged and accused has not violated any of the

provisions of The Factories Act, 1948.

4. I have heard oral arguments of learned counsel for both the sides, gone through the

case record, evidence, documents and also the relevant provisions of Factories Act

1948 and The Assam Factories Rules, 1950.

5. In the Course of argument hearing, Learned Advocate for the accused argued that

there are no other witnesses to corroborate the allegation of P.W. 1. It is also argued

that the factory inspector never visited the M/S Balaji Energy Station and that

accused has not received any notice from the complainant so question of

disobedience is not there. On the other hand learned APP for the state submitted

that evidence of complaint is self sufficient and reliable. Learned APP also referred to

a notification of Govt. of Assam where a Petrol Pump requires compulsory license

irrespective use of power or number of labour employed. In view of above

arguments and facts in dispute, following points are formulated for decision of this

case.

6. POINTS FOR THE DETERMINATION ARE:-.

i) Whether the accused Smti Binita Devi Nimodia is the owner/occupier of M/S

Balaji Energy Station situated at Bokakhat, Dist: Golaghat?

ii) Whether the complainant visited the M/S Balaji Energy Station at Bokakhat on

16.05.15?

iii) Whether the complainant served any notice as per the provisions of Rule 101

of The Assam Factories Rules?

iv) Whether the accused has violated the provisions of Rules 3, Rules 4 and Rule

101 of Assam Factories Rules r/w section 6, 7 of the Factories Act?

CR 44 OF 2015 Page 3 of 15



7. DECISION AND THE REASONS THEREOF:-

8. In respect of Point (i) as formulated above, that whether the accused is the

owner/occupier of the M/S Balaji Energy Station (petrol pump) at Bokakhat. The

accused in her examination u/s 313 Cr.P.C. clearly admitted that she is the

occupier/owner of the M/S Balaji Energy Station at Bokakhat. The P.W. 1 in his

evidence deposed that on 16.05.2015, when he visited M/S Balaji Service Station at

Bokakhat under Golaghat District he got to know that the accused is the owner of

the said petrol pump. While cross-examination, the accused side did not specifically

deny the above fact, rather the cross-examination went up to suggestion of non visit

of the P.W. 1 to that petrol pump. Apart from the evidence of P.W. 1, on perusal of

case record, it appears that summons of this case was issued and served upon the

accused as occupier/owner of M/S Balaji Energy Station, Bokakhat who in turn

appeared in the court and prayed for bail. The plea of denial of ownership of the

petrol pump or that summon was wrongly served upon her were not been taken on

the first day of appearance. Hence, from the admission at the Sec. 313 Cr.P.C. stage

and non denial of the ownership during cross examination, henceforth proves and

makes it crystal clear that the accused is the owner/occupier of M/S Balaji Energy

Station at Bokakhat.

9. In respect of point (ii) i.e., whether the complainant v isited the M/S Balaji Energy

Station on 16.05.15. In this regard PW 1 in his evidence deposed that on 16.05.16

he alone went for general inspection of factories at Bokakhat and he visited the M/S

Balaji Energy Station and meet Mr Sandip Nimodia who is the brother in law of the

accused Smti Binita Devi Nimodia and Mr. Sandip Nimodia told him that owner of the

said petrol pump is in the name of the accused. Regarding this fact the defence only

gave suggestion that the complainant did not v isited the said petrol pump but the

defence did not give any evidence to not even of the person Sandip Nimodia to

decline the said fact. Merely giv ing a suggestion does not amount to disproving the

fact. Moreover, the accused admitted in her 313 statement that Sandip Nimodia is

her brother in law. The complainant is an official person and he do not have any

enmity with the accused and further his v isit is proved as because he could tell that

Sandip Nimodia is the brother in law of the accused, which a person can tell only if

he meet that person. Hence in my opinion this point is proved.

10. In respect of point (iii) i.e. service of notice upon the accused by the complainant,

P.W. 1 deposed that on inspection, he detected that the owner was running the

CR 44 OF 2015 Page 4 of 15



petrol pump without valid license. This constitutes Factory which requires registration

and licenses under the provis ion of section 6 and 7 Factories Act and read with Rules

3 and 4 of Assam Factories Rules made there under. Since, the occupier was not in

possession of any such factories license, P.W. 1 issued a notice vide letter memo

number FA/20/382 dated 18-05-2015 asking the accused for procuring the license of

her premises under Factories Act within 7 seven days of receipt of such

communication. The said notice was sent by registered post. Exhibit-2 is the notice.

Exhibit-2(1)(2) are his signature. Exhibit-3 is the postal receipt dated 19-05-2015

vide No. A-RS439866225IN but the accused did not complied with the said notice

due to which again on 25.06.15 he send another notice vide memo number

FA/20/498 dated 25.06.15 to comply with the said inspection report but then also

the accused did not comply with the same. In the cross-examination of P.W. 1,

there is nothing to disbelief him in this aspect. In his cross-examination P.W. 1

denied the defence suggestion that P.W. 1 has has not issued any notice to the

accused.

From the above evidence on record, the defence plea that accused has not

received any notice has no base. Rule 100 of Assam Factories Rules provides

that ―The despatch by post under registered cover of any notice or order sha ll be

deemed sufficient service on the occupier, owner or Manager of a factory of such

notice or order.‖ This presumption of law also get strengthen when we apply the

provision of Sec section 27 of General Clauses Act in respect of service of notice

when it was sent by registered post.

Sec 27 of General Clauses Act reads as follows... 27. Meaning of service by post.-

Where any [Central Act] or Regulation made after the commencement of this Act

authorizes or requires any document to be served by post, whether the expression

"serve" or either of the expressions "give" or "send" or any other expression is used,

then, unless a different intention appears, the service shall be deemed to be effected

by properly addressing, pre-paying and posting by registered post, a letter containing

the document, and, unless the contrary is proved, to have been effected at the time

at which the letter would be delivered in the ordinary course of post.

Exhibit-3 is the proved with original postal receipt of forwarding of the notice

(Exbt.2) as proved by P.W.1. There is no rebuttal on the part of the accused

regarding prosecution ev idence of sending of notice by Regd. Post. In respect of

correctness of address, I have already discussed the matter while deciding point (i)

CR 44 OF 2015 Page 5 of 15



that the address of M/S Balaji Energy Station at Bokakhat for the accused is correct

and proper and she responded on the same upon receipt of summon. Exbt. 3 also

show that the notice was sent to accused on the same address. So it can safely

presumed that the notice issued to informant vide Exhibit -2 was duly served. Though

the issuance of the second notice dated 25.06.15 remained unproved because no

postal receipt was shown by the complainant in this regard. As such the point is

decided in affirmative.

11. Now let me turn to point (iv) as formulated above. Before going into details of

the evidence both oral and documentary, let me first consider the various Provisions

of The Factories Act, 1948 as alleged to have been violated by the accused due to

non-compliance. At first it will be proper to look at the definition of factory as

provided by The Factories Act, 1948.

According to section 2 (m) "factory" means any premises including the precincts

thereof-

(i) whereon ten or more workers are working, or were working on any day of

the preceding twelve months, and in any part of which a manufacturing

process is being carried on with the aid of power, or is ordinarily so carried

on, or

(ii) whereon twenty or more workers are working, or were working on any day

of the preceding twelve months, and in any part of which a manufacturing

process is being carried on without the aid of power, or is ordinarily so

carried on,- but does not include a mine subject to the operation of [the

Mines Act, 1952 (35 of 1952),] or [a mobile unit belonging to the armed

forces of the Union, a railway running shed or a hotel, restaurant or eating

place].

[Explanation. I]--For computing the number of workers for the purposes of

this clause all the workers in [different groups and relays] in a day shall be

taken into account;]

[Explanation. II.--For the purposes of this clause, the mere fact that an

Electronic Data Processing Unit or a Computer Unit is installed in any

premises or part thereof, shall not be construed to make it a factory f no

manufacturing process is being carried on in such premises or part thereof;

12. Apart from the above definition as mentioned in The Factories Act, 1948, Govt. of

Assam vide notification No.GLR.173/2001/14 dated 09.06.14: extended the definition

CR 44 OF 2015 Page 6 of 15



of Factory by using the power u/s 85 of The Factories Act, 1948 and brought 17

classes of industries under it irrespective of the fact of using power or manpower.

The said Notification reads as under:-

Notification No.GLR.173/2001/14:-

In the exercise of the powers conferred by sub-section (I) of Section 85 of the

Factories Act, 1948 (LXIII of 1948) the Governor of Assam is pleased to declare that

all the provisions of the said Act and the rules made there under shall apply to any

place in the State of Assam wherein any manufacturing process specified in Schedule

annexed hereto is carried on with or without the aid of power notwithstanding that.

(1) The number of persons employed therein is less than ten if working with the

aid of power and less than twenty working without the aid of power and.

(2) The persons working therein are not employed by the owner, but are

working with the permission of or under agreement with such owner.

Provided that nothing in this notification shall apply to any place wherein

manufacturing process is carried on by the owner only with the aid of his family and

no other persons ever employed therein.

SCHEDULE

1. Sawing of timber.

2. Manufacturing of ice and ice candy.

3. Manufacturing of oil.

4. Flour milling and grinding, breaking and crushing of any other cereal or material.

5. Rice Milling.

6. Dal Milling.

7. Petrol Pumps.

8. Manufacturing of plastic and plastic products.

9. Canning and preservation of food materials, fruits and vegetable.

10. Filling bottles with acrated water or drinks and processes initiated thereto.

11. Manufacturing of bakery products such as Breads, Bhujia, Papad etc.

12. Manufacturing of any electrical equipment, apparatus, appliances or devices.

13. Fabrication of steel furniture, manufacturing of wooden furnitures, Wire netting

and drawing.

14. Manufacturing of fireworks, detonators, cattroids or any other components

thereof.

15. Automobile Garages.

CR 44 OF 2015 Page 7 of 15



16. Spinning, Weaving, Knitting of finishing (including dyeing) of any textile material

including hosiery and carding and breaking of cotton.

17. Brick Manufacturing.

13. After coming into effect of the above notification w.e.f. 09.06.2004, A Petrol Pump of

Assam is now compulsorily require to comply with the provisions of Factories Act

and rules made there under i.e. Assam Factories rules, 1950 as amended up-to-date

irrespective of the fact of labour employed or power utilized there on.

14. The factory Inspector in his evidence and offence report has complained of v iolation

of provisions of Sec. 6 and 7 of The Factories Act, 1948 and rule 3, 4 and 101 of

Assam Factories rule. In the above context, let us examine the provisions of Sections

6 and 7 of Factories Act, 1948 and rule 3, 4 and 101 of Assam Factories rule, 1955

as amended up-to-date.

15. Section 6 and 7 of factories Act, 1948 reads as follows:-

16. Sec. 6. Approval, licensing and registration of factories:-

(1) The State Government may make rules-

(a) requiring, for the purposes of this Act, the submission of plans of any

class or description of factories to the Chief Inspector or the State

Government;]

(aa) requiring the previous permission in writing of the State Government or

the Chief Inspector to be obtained for the site on which the factory is to be

situated and for the construction or extension of any factory or class or

description of factories;

(b) requiring for the purpose of considering application for such permission

the submission of plans and specifications;

(c) prescribing the nature of such plans and specifications and by whom they

shall be certif ied;

(d) requiring the registration and licensing of factories or any class or

description of factories, and prescribing the fees payable for such registration

and licensing and for the renewal of licences;

(e) requiring that no license shall be granted or renewed unless the notice

specified in section 7 has been given.

(2) If on an application for permission referred to in [clause (aa)] of sub-section (1)

accompanied by the plans and specifications required by the rules made under

clause (b) of that sub-section, sent to the State Government or Chief Inspector by

CR 44 OF 2015 Page 8 of 15



registered post, no order is communicated to the applicant within three months from

the date on which it is so sent, the permission applied for in the said application shall

be deemed to have been granted.

(3) Where a State Government or a Chief Inspector refuses to grant permission to

the site, construction or extension of a factory or to the registration and licensing of

a factory, the applicant may within thirty days of the date of such refusal appeal to

the Central Government if the decision appealed from was of the State Government

and to the State Government in any other case.

Explanation.--A factory shall not be deemed to be extended within the meaning of

this section by reason only of the replacement of any plant or machinery, or within

such limits as may be prescribed, of the addition of any plant or machinery [if such

replacement or addition does not reduce the minimum clear space required for safe

working around the plant or machinery or adversely affect the environmental

conditions from the evolution or emission of steam, heat or dust or fumes injurious

to health].

17. Sec. 7. Notice by occupier:-

(1) The occupier shall, at least fifteen days before he begins to occupy or use any

premises as a factory, sent to the Chief Inspector a written notice containing-

(a) the name and situation of the factory;

(b) the name and address of the occupier;

[(bb) the name and address of the owner of the premises or building

(including the precincts thereof) referred to in section 93;]

(c) the address to which communications relating to the factory may be sent;

(d) the nature of the manufacturing process-

(i) carried on in the factory during the last twelve months in the case

of factories in existence on the date of the commencement of this Act,

and

(ii) to be carried on in the factory during the next twelve months in

the case of all factories;

(e) the total rated horse power installed or to be installed in the factory,

which shall not include the rated horse power of any separate stand-by

plant;]

(f) the name of the manage of the factory of the purposes of this Act;

(g) the number of workers likely to be employed in the factory;

CR 44 OF 2015 Page 9 of 15



(h) the average number of workers per day employed during the last twelve

months in the case of factory in existence on the date of the commencement

of this Act.

(i) such other particulars as may be prescribed.

(2) In respect of all establishments which come within the scope of the Act for the

first time, the occupier shall send a written notice to the Chief Inspector containing

the particulars specified in subsection (1) within thirty days, from the date of the

commencement of this Act.

(3) Before a factory engaged in a manufacturing process which is ordinarily carried

on for less than one hundred and eighty working days in the year resumes working,

the occupier shall send a written notice to the Chief Inspector containing the

particulars specified in sub-section (1) [at least thirty days] before the date of the

commencement of work.

(4) Whenever a new manager is appointed, the occupier shall send to the [Inspector

a written notice and to the Chief Inspector a Copy thereof] within seven days from

the date on which such person takes over charges.

(5) During any period for which no person has been designated as manager of a

factory or during which the person designated does not manage the factory, any

person found acting as manage, or if no such person is found, the occupier himself,

shall be deemed to be the manager of the factory for the purposes of this Act.

18. Rules 3, 4 and 101 of Assam Factories Rule read as follows.

Rule-3:- Submission of Plan---The State Government or the Chief Inspector of

Factories may require for the purposes of the Act, submissions of plans of any

factory which was either in existence on the date of commencement of the Act or

which has not been constructed or extended since then. Such plans shall be drawn

to the scale showing---

(a)the site of the factory and immediate surrounding including adjacent

building and other structures, roads, drains, etc.;

(b) the plan elevation and necessary cross Section of the factory buildings

indicating all relevant details relating to natural lighting, ventilation and

means of escape in case of fire and the position of the plant and machinery,

aisles and passage ways;

(c) such other particulars as the State Government or the Chief Inspector of

Factories as the case may be, may require.

CR 44 OF 2015 Page 10 of 15



19. Rule-4:- Application for registration and grant or renewal of license and

notice of occupation—The occupier of every factory, whether in existence at the

date of the commencement of the Act or coming for the first time within the scope of

the Act, shall submit to the Chief Inspector an application in Form 2 in triplicate

prescribed under Sections 6 and 7; provided that the occupier of premises in use as

a factory on date of commencement of the Act shall submit such application within

30 days from the date of commencement of the Rules.

20. Rule-101:- Information required by the Inspector—The occupier, owner or

manager of a factory shall furnish any information that an Inspector may require for

the purpose of satisfying himself whether any provision of the Act has been complied

with or whether any order of an Inspector has been duly carried out. Any demand by

an Inspector of any such information, if made during the course of an inspection,

shall be complied forthwith if the information is available in the factory, brief made in

writing shall be complied with within seven days of the receipt thereof.

21. Thus, close scrutiny of Sec. 6 and 7 of The Factories Act 1948 and Rules 3, 4 and

101 of Assam Factories Rule read with the notification of the Govt. of Assam as

stated above, it became clear that before starting a factory, the owner shall have to

comply with the provisions of Sec. 6 and 7 of The Factories Act, 1948 i.e. obtain a

license by submitting a notice under Sec. 7 with required information to Chief

Inspector of Factories of the State. In case of Petrol Pump, it became mandatory

irrespective of number of workers. Rule 101 also mandates to provide the

information sought for by Factory Inspector.

22. Let me now look at evidence of P.W. 1 to apply the above law to the case in hand.

P.W. 1 in his evidence deposed that since, the occupier was not in possession of any

such license, a notice was served to her asking for registration and license of her

premises under Factories Act vide his letter memo no. FA/20/382 dated 18-05-2015

within 7 seven days of receipt of such communication. The said notice was sent by

registered post. Exhibit-2 is the notice. Exhibit-2(1) (2) are his signature. Exhibit-3 is

the postal receipt dated 19-05-2015. Since the owner of the factory failed to comply

with the registration and license of his above referred notice, the Chief Inspector of

Factories, Assam accorded his sanction for prosecution of the accused vide his letter

dated 26-08-2015. Exhibit-5 is the copy of sanction order. Exhibit-5(1) is the

signature of Chief Inspector of Factories. Accordingly he submitted the offence report

CR 44 OF 2015 Page 11 of 15



against the accused Smti Binita Devi Nimodia for the offences punishable u/s 92 of

Factories Act for the violation of section 6 and 7 of Factories Act and Rules 3, 4 and

101 of the Assam Factories Rules. Exhibit-1 is the offence report/complaint petition.

Exhibit-1(1) is his signature. P.W. 1 further deposed that to his knowledge, one Sri

Nabin Nimodia who is the husband accused apply for registration on 22.02.16 i.e.,

after filing of this case. In his cross-examination he deposed that he has not

submitted any documents to show that on 16-05-2015, he visited the petrol pump of

the accused. On that day none accompanied him. He had not seized any documents

or taken the signatures of the employee of the petrol pump and Sanjib Nimodia

whom he meet, through he saw 5 numbers of Employee at the petrol pump. He

denied the defence suggestion that on 16-05-2015 he has not visited M/S Balaji

Energy Station. He further denied that accused has not violated the provision of

section 6 and 7 or any Rule made under Assam Factories Rules.

23. On going through the Exhibit. 2 it appears that the P.W. 1 asked the accused to

apply for license of her Petrol Pump as per the provisions of The Factories Act, 1948

and rules made there under within 7 days of receipt of the notice. I have already

held that notice was duly served on the accused and there is nothing to show that

accused has complied with the direction of Exbt. 2 notice. P.W. 1 admitted that on

22.02.16 the husband of the accused has applied for license. So mere putting a

suggestion to the witness that accused has not violated the provisions of Sec. 6 and

7 of The Factories Act, 1948 shall not exonerate the accused from her liability to

abide by the law of the State. Further, accused in her 313 statement clearly admitted

that on 16.05.15 she do not had the factory license of her petrol pump namely M/S

Balaji Energy Station. Therefore, the prosecution has able to prove the facts as

alleged that accused has violated the provisions of Sec. 6 and 7 of The Factories Act,

1948 beyond all reasonable doubt. As such the point number (iv) is decided in

affirmative and against the accused.

24. At this stage before considering the penal action for violation of provisions of The

Factories Act, 1948, I would like to examine the compliance of some other

mandatory provision of Factories Act, 1948 by the prosecution side. It may be noted

here that defense has not raised any plea on those provisions.

25. Sec 105 of The Factories Act, 1948 provides that:-

(1) No Court shall take cognizance of any offence under this Act except on complaint

by, or with the previous sanction in writing of, an Inspector.

CR 44 OF 2015 Page 12 of 15



(2) No Court below that of a Presidency Magistrate or of a Magistrate of the first

class shall try any offence punishable under this Act.

In the present case the written complaint was filed the Factory Inspector of

the area (Exbt. 1) after obtaining written Sanction (Exbt. 5) from the chief Inspector

of Factories Assam. Hence it is clear that the provisions of Sec. 105 has been

complied with.

26. Sec 106 of The Factories Act, 1948 provides that no Court shall take cognizance

of any offence punishable under this Act unless complaint thereof made within three

months of the date on which the alleged commission of the offence came to the

knowledge of an Inspector:

Provided that where the offence consists of disobeying a written order made

by an Inspector, complaint thereof may be made within six months of the date on

which the offence is alleged to have been committed.

[Explanation.--For the purposes of this section,--

(a) in the case of continuing offence, the period of limitation shall be

computed with reference to every point of time during which the offence

continues;

(b) where for the performance of any act time is granted or extended on an

application made by the occupier or manager of a factory, the period of

limitation shall be computed from the date on which the time so granted or

extended expired.

On going through the case record it appears that the complaint visited the premises

of the accused on 16.05.2015 and detected the matter of non-compliance of

Provisions of Sec. 6 and 7 of The Factories Act, 1948 and rules made there under.

Thereafter the complaint issued him a notice dated 18.05.2005 (Exbt. 2) and again

on 25.06.15 another notice was given (Exhibit 4) and on 17.11.2015 vide Exbt. 1 the

said case was filed by the complaint. As held above, accused has disobeyed the

written order made by the Inspector vide Exbt. 2 and Exbt. 4, and as such the period

of limitation will be six months of the date on which the offence is alleged to have

been committed. The offence was detected on 16.05.2015 and the case was filed on

17.11.2015 i.e. the complaint was filed within the period of six months of detection.

27. Further, it will be proper to refer Sec. 92 of The Factories Act, 1948 for ready

reference.

CR 44 OF 2015 Page 13 of 15



Sec. 92. reads as follows –

―Save as is otherwise expressly provided in this Act and subject to the provisions of

section 93, if in, or in respect of, any factory there is any contravention of any of the

provisions of this Act or of any rules made there under or of any order in writing

given there under, the occupier and manager of the factory shall each be guilty of an

offence and punishable with imprisonment for a term which may extend to [two

years] or with fine which may extend to [one lakh rupees] or with both, and if the

contravention is continued after conviction, with a further fine which may extend to

[one thousand rupees] for each day on which the contravention is so continued:

[Provided that where contravention of any of the provisions of Chapter IV or

any rule made there under section 87 has resulted in an accident causing death or

serious bodily injury, the fine shall not be less than [twenty five thousand] in the

case of an accident causing death, and [five thousand rupees] in the case of an

accident causing serious bodily injury.

Explanation.--In this section and in section 94 "serious bodily injury" means

an injury which involves, or in all probability will involve, the permanent loss of the

use of, or permanent injury to, any limb or the permanent loss of, or injury to, sight

or hearing, or the fracture of any bone, but shall not include, the fracture of bone or

joint (not being fracture of more than one bone or joint) of any phalanges of the

hand or foot.

28. From the above discussion it is clear that accused Smti Binita Devi Nimodia being the

owner/occupier of M/S Balaji Energy Station at Bokakhat, Dist: Golaghat, has

violated the provisions of Sec. 6 and 7 of The Factories Act, 1948 and Rule 3, 4 and

101 of The Assam Factories Rules, 1950 as amended up-to-date by running the

petrol pump without obtaining required license and registration from the Chief

Inspector of Factories, Assam and make herself liable for punishment under section

92 of The Factories Act, 1948. Prosecution is successful in proving the allegations

beyond all reasonable doubt.

29. Accordingly I held the accused Smti Binita Devi Nimodia guilty for the offence

punishable u/s 92 of The Factories Act, 1948 and convict her for the said offence.

30. I have considered the provisions of Section 3 and 4 of probation of offenders Act for

its applicability to the convict. Considering willful disobedience of LAW of the STATE

CR 44 OF 2015 Page 14 of 15



which was meant for safety of the workers of a factory, creating norms and

guidelines to run a factory; conduct of the accused particularly disregard to the

necessity of obtaining license prior to start a factory and in the present case even

after notice by the Factory Inspector, I am not inclined to extend the benefit of

section 3 and 4 of the Probation of Offenders Act to the accused Smti Binita Devi

Nimodia.

31. Heard the accused Smti Binita Devi Nimodia on the point of Sentence. She pleaded

the fact that due to not having the necessary information about obtaining factory

license of a petrol pump, the license was not taken and prayed for forgiveness as

this is her first offence, also she is a mother of two children and a sick person with

osthoritis disease and to take a lenient view by imposing only fine.

32. Considering the fact that accused is a woman and also not a habitual offender and

due to ignorance the said license was not taken on time, I am of the opinion that a

lenient sentence of fine will meet the ends of justice.

33. Accordingly, I sentence the accused Smti Binita Devi Nimodia to pay a fine

of Rs. 10,000.00 (Rupees ten Thousand) only in default to undergo simple

imprisonment for six months for the offence punishable under section 92

of The Factories Act, 1948.

34. Moreover, if the contravention is continued from today onwards a further fine of Rs.

1000/- (one thousand only) for each day will be imposed upon the accused.

35. Let a free copy of this judgment be given to the accused immediately. Accused is

informed about her right of appeal against the judgment and order of conviction and

sentence.

36. Judgment is pronounced in open court. Case is disposed of on contest.

Given under the hand and seal of this court on this 14th day of March, 2017.

Saptarshi Garg Judicial Magistrate First Class,

Bokakhat, Golaghat.

CR 44 OF 2015 Page 15 of 15



APPENDIX PROSECUTION WITNESSES:-

1. PW 1 Sri. Arup Bordoloi (Informant),

PROSECUTION DOCUMENTS:- 1. Exhibit 1 Complaint petition/offence report

i. Exhibit 1 (1) signature of PW 1

2. Exhibit 2 Proved in original of notice vide memo number FA/20/382 dated 18.05.15

i. Exhibit 2 (1) signature of PW 1,

ii. Exhibit 2 (2) signature of PW 1,

3. Exhibit 3 Proved in original of postal receipt dated 19.05.15

4. Exhibit 4 Proved in original of notice vide memo number FA/20/498 dated 25.06.15

5. Exhibit 5 Proved in original of prosecution sanction letter vide memo number

MISC/pros/139/9738 dated 26.08.15

i. Exhibit 5 (1) Signature of Chayan Prakash Purkaystha, Chief Inspector Of

Factories identified by PW 1.

DEFENCE WITNESSES:- 1. NONE.

DEFENCE DOCUMENTS:- 1. NONE.

Saptarshi Garg Judicial Magistrate First Class,

Bokakhat, Golaghat.

Documents

Accused. - Golaghatgolaghatjudiciary.gov.in/jmnt/2017/mar/mn bkt/CR 44 of 2015 14.03... · 11.Now let me turn to point (iv) as formulated above. Before going into details of the evidence