Murugan vs State

N. Dhinakar, J.—Petitioner is accused in CC No. 96 of 1995 on the file of the Additional District Judge, Nagercoil and he was tried for violation of Section 6(1)(2) of the Factories Act and Rule 4(1)(2) & (3) r/w. 12(b)(5) of the Rules framed under the said Act.

The case of the prosecution against the Petitioner is that at 2 p.m. on 6.3.1991 PW1, the Assistant Inspector of Factories inspected Vidhu Match Works, a factory belonging to the Petitioner and found that he was running the factory with 16.5. Hours power motor where there were 12 persons working to run the factory. When he asked for the licence, he did not produce nor did he produce any receipt for the payment of licence fee. Ex.P. 1 is inspection report. Thereafter, the Assistant Inspector of Factories sent a show cause notice Ex.P.2 which was returned unserved. The Assistant Inspector of Factories made a further attempt to serve the notice through his employee, which was also refused by the accused. The Assistant Inspector of Factories, then sent a notice under certificate of posting and the certificate of posting is marked as Ex.P.3. After obtaining sanction from the Additional Chief Inspector of Factories, he filed the complaint against the accused.

Learned Counsel appearing for the Petitioner contends that since Section 105 of the Factories Act is not complied with inasmuch as no sanction was obtained from the authority, the prosecution is bad in law Section 105 of the Act read as follows:

Cognizance of offences (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.

(2) No Court below that of a Presidency Magistrate or of a Magistrate of the first class skill try any offences punishable under this Act.

A reading of the above Section shows that no Court can take cognizance of an offence under the Act except on complaint by the Inspector or with the previous sanction in writing by an Inspector.

According to the Counsel, since no sanction was obtained from the Assistant Inspector of Factories, he is not competent to lay the complaint. Countering the said argument, learned Additional Public Prosecutor brought to my notice Ex.P-4 copy of the sanction order, issued by the Additional Chief Inspector of Factories. Learned Counsel appearing for the Petitioner contends that Ex.P-4 is not the original order issued by the Additional Chief Inspector of Factories but only a copy.

I have perused the document and a perusal of the same shows that Ex. P.4 is not the original sanction order issued by the Additional Chief Inspector of Factories but it is only a copy of the sanction order purported to have been issued by the Additional Chief Inspector of Factories. The Assistant Inspector of Factories has endorsed the said document as true copy which means that Ex.P.4 is not the original sanction order. The prosecution also before the trial Court did not come out with any explanation as to with they did not mark the original sanction order When primary evidence is available, it is the duty of the prosecution to mark the same and secondary evidence cannot be allowed to come on record.

On the above discussion, it is clear that the prosecution did not produce the sanction order and mark it in terms of the provisions of the Evidence Act. Under the circumstances, I cannot but hold that the prosecution did not produce the sanction order and mark it before the trial Court. The revision is allowed on this short ground. The sum of Rs. 6.000/- imposed with a default sentence of two months simple imprisonment by the trial Court and confirmed by the appellate Court is set aside Consequently, Crl.M.P. No. 2711 of 1996 is dismissed.