Provincial Government, C.P & Berar v. Seth Chapsi Dhanji Oswal Bhate And Another Accused

1. This is an appeal by the Provincial Government against an acquittal under the Factories Act 25 of 1934. At 6.5 P.M on 18th April 1937, Mr. Sen, the Inspector of Factories, visited the Sir Sarup Chand Hukum Chand Ginning Factory, Khamgaon, and found that factory at work. In accordance with S. 39(1) of the Act, there was a notice posted up showing the periods of work as 7 A.M to 12 noon and 1 P.M to 6 P.M The work stopped that day at 6-15 P.M The clock in the engine room was 15 minutes slow but the clock in the office-room was correct. S. 42 of the Act provides that no adult worker shall be allowed to work otherwise than in accordance with the notice of the periods for work for adults displayed under sub-s. (1) of S. 39, and the two accused who are the managers and agents were therefore prosecuted under S. 60(b)(i) read with S. 42 of the Act. They were convicted in the trial Court but acquitted on appeal. Mr. Sen's evidence shows that the office clock was correct by the Post Office time. The time observed by the. Post Office is Indian standard time, and the hours stated in the notice for the periods of work must be interpreted as referring to Indian standard time. It therefore follows that the factory worked for 15 minutes after the hour when it should have closed in accordance with the notice for the periods of work. The workers who worked for these 15 minutes were undoubtedly allowed to work, and therefore under S. 60(b)(i) the manager and occupier are liable.

2. The main defence is that the accused acted in good faith, honestly believing the engine-room clock to be correct, and that they are protected by S. 81 of the Act. S. 81 runs as follows:

No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done under this Act,

and a similar Section is to be found in other Acts, e.g the Central Provinces Excise Act and the Lunacy Act.

3. It appears to us that this Section was inserted in the Act primarily, if not entirely, for the benefit of the inspecting staff. The manager or occupier who allows workmen to work beyond the prescribed hour is not, in our opinion, acting or intending to act under the Act. In 58 Bom 1371 Divatia, J. remarked that the manager seemed to have believed in good faith that he had the power to extend the time, but the manager was convicted and no reference was made to S. 81 of the Act (then S. 58). The decision in AIR 1934 Cal 730,2 so far as we under, stand it, seems to be based on the assumption that acting in good faith is always a defence to a criminal charge, which it is not, but there was no discussion there of S. 58 (now S. 81).

4. Under the English law mens rea is not an essential element in a limited class of offences consisting for the most part of statutory offences of a minor and only quasi-criminal character: see Halsbury's Laws of England, Edn. 2, Vol. 9 page 11, Examples of such offences are: (1) possessing for sale unsound meat, though without knowing it to be unsound: (1910) 2 KB 471;3 (2) selling an adulterated article of food, though without knowing it to be adulterated: (1888) 20 QBD 771;4 (3) selling intoxicating liquor to a drunken person, though without noticing that he was drunk: (1884) 13 QBD 207.5 In such cases it will seldom be possible for the prosecution to prove that the accused had such knowledge, and the Legislature has accordingly dispensed with the necessity for such evidence. As Ismay, Judioial Commissioner, put it in (1897) 10 CPLR 11 Cr6 at p. 12:

Where an offence has been committed in ignorance or misapprehension of the law, and the statute prohibiting the act does not expressly make malice or wilfalness or other intent an essential element of the offence, the absence of mens rea does not control the language of the statute.

5. It therefore appears to us sufficient in a prosecution under the Faotories Act to prove that the accused has infringed the Act or rules under the Act and that it is not necessary to show that the accused intended to infringe the Act or the rules. Though S. 81 does not apply, it is open to the occupier or manager to show under S. 71(1) that he has used due diligence to enforce the execution of the Act and that the offence was committed by some other person without his knowledge, consent or connivance. That plea has not been put forward in the present case, and we do not think that it is unreasonable to expect persons in charge of a factory to see that the time observed in the factory is the correct time. We do not know if the factory really started at 1.15 P.M and not at 1 P.M; but if it did, then the workers, who would know no time except the local time, must have arrived a quarter of an hour early and have been kept hanging about the factory instead of enjoying their hour of rest. A trifling difference in time would no doubt be ignored but a quarter of an hour is not a trifling difference. We therefore hold that an offence has been committed. The appeal is allowed and the convictions in the lower Court will be restored. We think that a fine of Rs. 25 for each accused is sufficient and we pass orders accordingly; in default of payment, one month's simple imprisonment.

K.S/R.K

6. Appeal allowed.