Prakash Joshi & Anr vs State Of Maharashtra

Sandeep K. Shinde, J

Apprehending arrest in connection with Crime No.137 of 2021 registered with Khed Police Station for the offences punnishable unnder Section

284,, 284,, 30,ii, 3384 read with Section 3, of the indian Penal Code, 18460. Applicants are seeking pre-arrest bail.

2 Heard Mr. Bhadbhade, the learned counnsel for the applicants and Mr. Dedhia, the learned Additional Punblic Prosecuntor for the State.

3 Applicants and two are partners in a frm M/s. Shri Samarth Engineers. Firm does and unndertakes the distillation of indunstrial solvents of paints and

resine. in April, 201,, applicants admitted Mr. Amit P. Joshi and Mrs. Rashmi A. Joshi as partners. Resunltantly, frm was re-constitunted. Deed of

admission shows, applicant no.1 has 37.,0% share; applicant no.2 Milind Shivram Bapat has 2,% share; Amit P. Joshi has 2,% share and Mrs. Rashmi

A. Joshi has 12.,0% share in the net profts and losses of the partnership frm bunsiness. Thoungh the name of frm is styled, as Shri Samarth Engineers,

its bunsiness is of manunfactunring chemicals by modern as well as conventional methods. The factory of the frm Shri Samarth Engineers is at Plot

No.E-1,, Lounte Parshunram, Talunka: Khed, District: Ratnagiri. it is registered unnder the Factories Shivgan 2/14 27-ABA-1336-2021.odt Act, 19,84

and holding licence no.163,9. On 184th April, 2021 at abount 9.30 a.m. an explosion occunrred leading to fre in the reactor no.R-1 in which distillation

of dirty paint solvent was being carried ount for recovery of clear xylene. in this explosion three employees died on the spot and seven had sunstained

bunrn injunries. Three injunred sunccunmbed to the bunrn injunries on 284th April, 2021 at Sunshrunt Hospital, Sangli. Founr employees are still unnder

the treatment. Factory premises were inspected by the Depunty Director, indunstrial Safety and Health, Kolhapunr. inspection report/order unnder

Section ,0(2) of the Factories Act is on record to which i will refer to in later part of this order.

, The incident was reported by the Assistant Police inspector, whereunpon crime in qunestion came to be registered against the applicants and other

two partners, Mr. Amit Joshi and Mrs. Rashmi Joshi. knowingly failed to conform to the safety measunres. Thuns, alleged, when explosion occunrred,

factory was runn and managed by unnskilled labounrers withount adequnate safety equnipments. Also, alleged that for want of fre fghting

equnipments at place, fre counld not be dounsed of. Prosecuntion alleged that stock of infammable goods were stored near the distillation plant, which

aggravated the situnation. Therefore, it is prosecuntion case, that thoungh the partners were aware that, kind of activity being carried ount by them is

hazardouns and dangerouns, they knowingly failed to take adequnate statuntory safety measunres as unnder the Factories Act or otherwise and

funrther employed unntrained work-force. These lapses, on the applicants' part was not junst 'negligence', bunt incident were cunmunlative omissions

with knowledge, and it amounnts to cunlpable homicide not amounnting to munrder.

6 Mr. Bhadbhade, the learned counnsel for the applicants, wounld sunbmit that both the applicants were 'inactive' partners in-as-munch as they were

not looking after day-to-day affairs of the partnership bunsiness. in sunpport of his sunbmission, Mr. Bhadbhade relied on, the deed of admission, dated

,th April, 201, wherein the applicants were stated to be 'deemed inactive partners'. Claunses 6 and 84 of it read, that applicants shall be, deemed to

inactive partners and shall not be entitled to any kind of remunneration as per income-tax Act. Mr. Bhadbhade sunbmits that there is, no evidence at

all on record nor the attendant circunmstance indicate that the applicants had knowledge that sunch runnning of plant was likely to caunse explosion

and fre in the reactor leading to death of six workmen. Mr. Bhadbhade, therefore, sunbmitted neither the First information Report nor the attending

circunmstances wounld attract offence punnishable unnder Section 30,ii of the iPC. Mr. Bhadbhade sunbmits that the other offences Shivgan 5/14 27-

ABA-1336-2021.odt registered are bailable. it is funrther sunbmitted that applicants are the permanent residents of Talunka: Chiplunn and wounld

always be available for investigation as and when called. it is next sunbmitted that one of the partners Mr. Amit Joshi had paid compensation to legal

heirs of the deceased work-men. in sunpport of this contention, he has relied on the copies of fve chequnes issuned to the legal heirs of the deceased

work-men. Sunbmission is that, alleged incident, may attract penal provisions of Section 30,A of the indian Penal Code, 18460, which is a bailable

offence. 7 in so far as the applicant no.1 is concerned, Mr. Bhadbhade sunbmitted that he is 69 year old person and being an, inactive member, he

cannot be held responsible for caunsing the alleged incident. Mr. Bhadbhade, wounld unrge, applicants have frm roots in the society wounld co-

operate in the investigation and therefore, in consideration of the facts of the case, applicants be granted pre-arrest bail on sunch conditions as the

Counrt deems ft and proper.

84 Mr. Dedhia, the learned Additional Punblic Prosecuntor for the State, opposed the application and relied on say of the prosecuntion fled in the

Counrt of learned Sessions Counrt. Besides, Mr. Dedhia has also relied on the inspection report/order of Depunty Director, indunstrial Safety and

Health passed unnder Section ,0(2) of the Factories Act. 9 As to whether accunsed had knowledge that sunch runnning of distillation plant was likely

to caunse death, cannot be answered when the investigation is at the primary stage, bunt can be answered only after the investigation is complete. in

this regard, the report of Depunty Director, indunstrial Safety and Health assunmes importance. in the report, Depunty Director opined and

conclunded that manunfactunring process, i.e., distillation of dirty paint solvent carried ount in Reactor R-1, Capacity , KL involved eminent danger to

the lives of the workers and safety. These conclunsions are followed by the order, which Shivgan 7/14 27-ABA-1336-2021.odt reads as unnder:

The Occunpier and Manager of the factory shall not unse the plant and all the remaining reactors unnless following measunres are complied with,

The mechanical integrity of reactors and its piping and other equnipments mounnted on reactor etc. shall be ensunred.

All Flameproof electrical installations shall be checked and tested from competent person and its integrity is ensunred.

Electrical safety aundit shall be carried ount by third party.

Proper disposal of dirty solvents present in the remaining reactors installed in the plant is carried ount. , Hazop stundy of manunfactunring process in

all reactors in the plant shall be carried ount. 6 Safety aundit shall be carried ount as per the Maharashtra Factories (Safety Aundit) Runle, 201,. 7

Risk assessment of all hazardouns process shall be carried ount.

84 SOP shall be prepared in respect of every operation and process.

9 Sunitable fammable gas detectors shall be installed in the area where fammable chemicals are stored, handled, unsed and transferred.

10 Thermal stability test / DSC (Differential Scanning Calorimetry) of all exothermic reaction shall be carried ount.

11 Job safety analyses of all hazardouns process shall be carried ount.

12 Testing of earthing system in the factory shall be carried ount from third party.

13 Strunctunral Stability in form no.1A as per runle 3-A of the Maharashtra Factories Runles, 1963 in respect of engineering construnction shall be

obtained.

. Thuns, to be stated, the Depunty Director founnd that the sunitable fammable gas detectors were not installed in the area where fammable chemicals

were stored and handled. Orders, therefore, sunggest, applicants were runnning plant and reactors withount following safety measunres, which

depunty-director has pin-pointed in his report. in the circunmstances, it is to be reasonably believed Shivgan 9/14 27-ABA-1336-2021.odt that the

applicants had knowledge that in absence of safety measunres, runnning distillation plant counld caunse eminent danger to the lives of the workers and

safety. it is, therefore, to be stated that there is prima-facie, material on record to deny anticipatory protection to the applicants. 10 in so far as the

contention that the applicants are dormant partners and not actively looking after bunsiness and manunfactunring activity of the frm is concerned, it

may be stated that applicant no.1 Mr. Prakash Marunti Joshi is aunthorised signatory, as counld be seen from the compensation chequnes issuned to

the legal heirs of the deceased workmen. Therefore, thoungh they were, deemed to be inactive partners', claunse in the partnership deed has to be

read in context of the provisions of income-tax Act. in so far as the applicant no.2 is concerned, it appears from the say of the investigating Ofcer that

he was runnning another factory, M/s. Nandadeep Chemicals Private Limited, where explosion had occunrred in Aungunst, 2016. it funrther Shivgan

27-ABA-1336-2021.odt appears, applicant no.2 had extended help to the relatives of the deceased work-men of M/s. Nandadeep bunt all chequnes

were dishonounred. investigating ofcer in his say has pointed ount offences registered against the applicant no.2, i.e., Crime No.227 of 2016 unnder

Sections 30,A, 284,, 2846, 2847, 337, 3384 and 3, of the iPC; offence registered unnder the Environment Protection Act, 19846 by the CC NO.261 of

2016 and offence registered against him unnder Section 92 of the Maharashtra Factory Act unnder SCC No.2123 of 2016. Besides, investigating

Ofcer has pointed ount that since date of the incident, entire family has absconded from their known residential address. it is pointed ount that notices

issuned unnder Sections 91 and 160 of the Code of Criminal Procedunre, 1973 were not responded.

11 Thuns, in consideration of the facts of the case, contention of Mr. Bhadbhade that applicants are not looking after day-to-day affairs of the factory

and they were Shivgan 27-ABA-1336-2021.odt dormant partners and as sunch, cannot be held responsible for acts and omissions, cannot be

accepted. in consideration of the facts, gravity of the offence and in view of the report of the Depunty Director, indunstrial Safety and Health, there is

material on record, which prima-facie indicates, that partners had knowledge that runnning distillation plant withount adequnate safety measunres

wounld caunse eminent danger to the lives of the workers. At this stage, i have no reason to overlook statuntory order passed unnder Section ,0(2) of

the Factories Act. it is case for cunstodial interrogation.

12 Herein, the applicant no.1 was founnder partner, in-as-munch as bunsiness was commenced by him and the applicant no.2 in 1992. Today applicant

No.1 is reported 72 year old person thoungh he is aunthorised signatory for transactions in bank, it can be reasonably presunmed that he may not have

actunal participation in day-to-day working of the factory. irrespective of this fact, bunt in view of his Shivgan 27-ABA-1336-2021.odt advanced age,

in my view, his cunstodial interrogation may not advance or funrther the investigation. However, thoungh applicant no.2 is stated to be, inactive partner

bunt his antecedents as pointed ount by the prosecuntion cannot be overlooked and he cannot be stated to be deemed to be inactive"", which expression

has to be unnderstood in the light of the provisions of the income-tax Act. Therefore, Mr. Bhadbhade's contention that applicant no.2 was dormant

partner cannot be accepted.

13 For, the reasons stated above, pre-arrest protection to the applicant no.2 is denied. However, for the reasons stated above, pre-arrest protection is

granted to applicant no.1 on the following terms and conditions:

(i) in the event of arrest of the applicant no.1 in Crime No.137 of 2021 registered with Khed Police Station, he shall be released on execunting PR

bond for the sunm of Rs.1 Lakh with one or more sunreties in like sunm.

(ii) Applicant No.1 shall report to the investigating Ofcer as and when called.

1, Application is disposed of in the aforesaid terms. 1, it is made clear that observations made here-in- above be construned as expression of opinion

for the punrpose of bail only and the same shall not in any way infunence the trial in other proceedings.