State by Public Prosecutor vs P. Shanmugam

M.N. Moorthy, J.—Aggrieved by the order of the learned Judicial First Class Magistrate, Tiruchhapalii in S.T.C. Nov 392 of 1977 acquitting the respondent accused for an offence under S. 33 of the Beedi and Cigar Workers (Conditions of Employment) Act, 1966, for con. traveling Rr. 26(1), 36(1) and 36(3) of the Rules framed under the Act, the State was preferred this Criminal Appeal.

The case of the prosecution, in brief is as follows:- P.W. 1 the Assistant Inspector of Labour, V Circle, Tiruchirapalli inspected Uriyadi Mark Cigar Company, situated at 65, Varaganeri Bazaar, Tiruchirapalli, which is a "cigar industrial premises" as defined under S. 2(i) of the Beedi and Cigar Workers (Conditions of Implement) Act, 1966, hereinafter to be referred to as ''the Act''. The accused is the "employer'' as defined under S. 2(g) of the Act. On Inspection at 1:15 p.m. , on 8th June, 1977, P.W. I found (i) there was no exhibition in the cigar industrial premises of a notice in Form No. IV specifying clearly the daily hours of work, intervals for rest and weekly holiday to the employees employed in a cigar industrial premises; (ii) failure to maintain a register "muster roll" in Form No. XIII in respect of the employees employed in'' the said premises, and (iii) failure to maintain a home-workers'' employment register in Form No. XV containing the names and particulars of all the home-workers employed and to keep it up-to-date on the basis of the entries in the home-worker''s log books. These contraventions of Rules are against the provisions of R. 26(l), 36(1) and 36(3). P.W. I further found 20 workers who were bringing cigars made out of the tobacco taken from the said premises. On the contravention of the provisions of the Act and the Rules, a ''show cause notice, Ex. P2 was sent to the accused. Ex. PI is the inspection report of P.W, 1, Ex. P3 is the reply of the accused to the show cause notice, Ex. P2. The prosecution has also filed Ex. P4 wherein the accused has attempted to get a license under the Act. According to P.W. 1, preparation for "cigar" M.O. 1 is different from that of Cheroot M.O.2. P.W. I in Ex. Pl has mentioned the names of workers who were actually employed at the time of the inspection and also the names of 13 persons out of the 20 who were engaged in bringing cigars made out of tobacco taken from the premises.

When the accused was examined, he denied that there were any workers with him working in the premises. He admits he has applied for a license under the Act but says it was because of pressure. He examined one witness on his behalf. According to D..W. 1 he was the Officer-in-charge of Tobacco Research Station, Vedasandur. There is no different variety of tobacco for cigar. There are different kinds of leaves of tobacco used for chewing, cheroot and cigar. Cheroot and cigar are not one and the same. In the case of cheroot, a filler is rolled around with a binder. In the case of cigar, there is also a wrapper over the binder. He further states that when the accused wanted some clarification and wrote to him, he had replied in Ex. Dl to more or less the same effect as he has deposed to in the witness box.

The learned Magistrate acquitted the accused on the ground that apart from P.W. 1''s inspection report, there is nothing to show that the workers who were working in the premises of the accused were employed by the accused. He was not prepared to accept the evidence of P.W. 1 that 20 persons were taking tobacco from the premises of the accused and bringing them back as cigars. He felt the need for corroboration of P.W. l''s evidence, Further, he was inclined to accept the defence evidence that cigar is different from Cheroot.

The learned Public Prosecutor contended that cheroot is not different from cigar. Cigar is the genus and cheroot is one of the species. P.W. 1''s evidence can be accepted without corroboration for a conviction. He further submitted that under S. 2(k) of the Act "manufacturing process" means even packing or otherwise treating of any article with a view to the use, sale; transport, delivery or disposal as cigar. On the admission of the accused in Ex. P3 the reply to the show cause notice by the accused that labels were being affixed for the cheroot in the premises, offences under the Act have been committed.

The trial Court has erred in holding that P.W. l''s evidence is not acceptable without corroboration. P.W. 1 is a responsible officer and there is DO reason why his evidence should be viewed as if it is that of an accomplice. When he inspected the place of accused on 8th June, 1977 at 1:15 p.m. , he saw four persons working there. The inspection report makes it abundantly clear that the employees in all were 24 and out of them 20 were engaged in bringing cigars made out of the tobacco taken out of the accused''s premises. The accused contended that cigars are being packed by some of his relations in the premises and that would not be contravention of any of the provisions. But as the learned Public. Prosecutor has rightly pointed out, this would clearly fall under S. 2(k) of the Act as it is a "manufacturing process". Ex. P3 states that his relations are engaged in affixing of labels in the premises which also is a process of manufacturing as contemplated under the Act. Another circumstance to be considered in this case is, the accused, long before prosecution was launched against him, knowing fully well that what he was doing, in the premises, needed a license, applied for the same as Ex. P4 shows. But, an application has to be accompanied by a plan in accordance with S. 4(2) of the Act and hence he was not successful in obtaining the license.

Regarding the contention that cigar is different from cheroot and so the Act is not applicable to what the accused was doing in the premises, an unreported decision of Suryamurthy, J., in Crl. M.P. Nos. 2173, 2177, 2466, 2475 and 2478 of 1978, dated 14th February, 1979 was brought to my notice. The learned Judge after dealing with the nature of these two items held that the word ''cigar'' is more comprehensive than ''cheroot'' and ''cheroot'' is a species and cigar is the genus and that the Legislature has used the word ''cigar'' its comprehensive sense as inclusive of cheroot. Therefore, ''cigar'' used in the Act includes the cheroot also. I am in respectful agreement with the above decision and hold that the Act applies to cheroot as well. The Learned Counsel for the accused cited before me a few decisions under the Factories Act where a worker has been defined. Apart from the fact that these decisions were before the definition of "worker", was amended under the said Act in 1976. I do not think it is necessary for me to refer to the definition of a "worker", as in the instant case we are dealing with "employee" as defined in S. 2(f) of the Beedi and Cigar Workers (Conditions and Employment) Act.

Net result of the analysis is, that the trial Court has erred in not accepting the evidence of P.W. 1 on the ground that it needed corroboration, secondly, that cigar is different from cheroot and that the Act is not applicable. In the result, the appeal against acquittal by the State is allowed and the accused, for contravening Rr. 26 (I), 36(1) and 36(3) of the Rules framed under the Act is liable to be punished under S. 33 of the Act. Consequently, for contravening the said rules, the respondent-accused is convicted under S. 33 of the Act and sentenced to pay a fine of Rs. 100, in default to undergo one week S.I. Time for payment of fine is 15 days from the date of the receipt of the order by the lower court.