Delhi District Court
Court In Air 1991, Supreme Court 711 ... vs . on 31 May, 2011
1
IN THE COURT OF SH.KISHOR KUMAR
METROPOLITAN MAGISTRATE02, (MUNICIPAL)
DWARKA COURTS:DELHI.
IN RE: CHALLAN NO.367595
CENTRAL ZONE
U/S 416/417/430 DMC ACT, 1957.
1. CHALLAN NO. : 367595
2. Date of Institution : 25.09.2008
3. Name of the accused, and
his parentage and residence : M/s Voltas Ltd. Through
Admn. Manager of M/s Voltas
Ltd. D.K. Bakshi(Accused)
S/oSh. Jagdish Rai, R/o A46
Kalkaji, New Delhi.
Office Address:
B1/E22, IInd floor, Mohan
Floor, Mohan CoOperative
Industrial Estate, Mathura
Road, New Delhi44.
5. Date when judgement : 27.05.2011 for 31.05.2011
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was reserved
6. Date when Judgement : 31.05.2011
was pronounced
7. Offence Complained of : U/S 416/417/430 DMC ACT,
1957.
8. Plea of accused : He pleaded not guilty and
claimed trial.
9. Final Judgement : Acquitted
JUDGEMENT
1. The complainantMCD has filed the present challan u/s 416/417/430 of Delhi Municipal Corporation Act against the accused on the allegations that on 18.09.2008 at 4.20PM, accused concern M/s Voltas Ltd. through its Manager, (Administration) Sh. D. K. Bakshi, at B1/E22, Second Floor, Mohan Co Operative, Industrial Estate, Mathura Road, Delhi was found running the work of information technology enabled services/ providing services with 10 K.W. ( approximately) without Municipal Licence by using 17 computers, one printer, one server etc.
2. The challan was presented before my Ld. Predecessor who took the cognizance, and had been pleased to summon the accused. Accused D. K. Bakshi Manager (Administration) appeared along with counsel and chose to contest the instant challan. Copy of challan etc. were supplied to the accused in 3 compliance of section 207 Cr. P.C. On the basis of allegation, prima facie case for the offence u/s 416/417/430 of Delhi Municipal Corporation Act was made out against the accused, for which notice u/s 251 Cr.P.C. for above mentioned Provisions was framed on 14.05.2011 to which accused pleaded not guilty and claimed trial.
3. In order to prove its case, complainant /MCD has examined three witnesses namely PW1 Sh. Surender Kumar, Dy. Law Officer, PW2 Sh. Ghanshyam, Challaning Officer and PW3 Sh. Naresh Arya, UDC.
4. On the closing of complainant evidence, the accused was examined u/s 313 Cr.P.C. wherein he denied the case of the complainant MCD in toto and stated that accused has been falsely implicated in the present case with ulterior motives without any basis in order to harass them. Accused chose to lead defence evidence.
5. Accused examined himself u/s 315 Cr.P.C. as his own witness.
6. The complainant / MCD has challaned the accused concern for offence punishable u/s 416/417/430 DMC Act on the allegations that at the relevant date, time and place accused was found running the work of information technology enabled services / providing services with 10 K.W. (approximately) without Municipal Licence at the given premises.
7. PW1 Sh. Surender Kumar is the Assistant Municipal Prosecutor (AMP) deputed in the court, looking after the cases of complainant / MCD. He deposed that the present challan Ex. PW2/A was placed before him by Sh. Ghanshyam 4 factory Inspector (PW2) for launching prosecution of the accused. PW1 after his satisfaction lodged the challan before the court. PW1 has exhibited on record an office order dated 18.08.1986 according to which he has been empowered to lodge prosecution in the court. The said office order has been exhibited on record as ExPW1/B. PW1 has been cross examined by the Ld. Counsel for the accused but the same is not relevant to be discussed at this juncture.
8. PW2 Sh. Ghanshyam is the challaning officer who has issued the instant challan against the accused concern. This witness has deposed that in the year 2008 he was posted as Factory Inspector of the area Mohan Co Operative Industrial Estate in factory department. He inspected the premises bearing No. B1/E22, Second Floor, Mohan Co Operative, Industrial Estate, Mathura Road, Delhi on 18.09.2008 at 4.20 PM and found accused running the work of Information Technology enabled services / providing services with 10 K.W. (approximately) without Municipal Licence by using 17 computers, one printer, one server etc. This witness has been cross examined by Ld. Counsel for the accused at length.
9. PW3 Sh. Naresh Arya UDC has been examined by complainant - MCD who has brought the attested copy of office order which already stood been exhibited on record as Ex.PW1/B. This witness has also been subjected to cross examination by Ld. Counsel for the accused.
10. It is argued by Ld. AMP for complainant MCD that complainant has been successful in proving its case on record on the basis of testimonies of PWs and 5 the documents. That at the relevant date, time and place the accused concern was found running the work of Information Technology Enabled Services / Providing Services with 10 K.W. (approximately) without Municipal Licence. It is further argued by Ld. AMP for the complainant MCD that the activities being run by the accused concern squarely fall within the ambit provisions of sections 416/417/430 of DMC Act. Ld. AMP for the complainant MCD has also referred to Delhi Master Plan 2021, policies framed there under and argued that the Information Technology Enabled Services/ Providing Services to other require licence from the complainant. It is further contended by Ld. AMP for the complainant - MCD that the accused has not disputed the factum of raid, authority of Challaning Officer to issue challan, hence the complainant has brought home the guilt of the accused successfully.
11. On the other side Ld. Counsel for the accused has argued that there are material inconsistencies and discrepancies in the examination and cross examination of PWs which go to the very root of the present case. Their testimonies are not reliable,no conviction can be based on such shaky depositions. It is further argued by Ld. Counsel for the accused that the complainant has not been able to prove its case beyond reasonable doubts. The accused had has installed the computers and allied devices in their office for their own use. Accused is not providing any information to outside world. The alleged business activities of the accused neither fall u/s 416 or 417 DMC Act. The Challaning Officer has issued the present challan against the accused with ulterior motives to 6 harass. The accused is neither running a factory, nor workshop nor any trade. As per the information provided to the accused by the complainant itself under RTI Act application, the accused does not require any licence for its business. It is an admitted fact that accused is not storing any goods, hence section 417 DMC Act has also no applicability. The accused has not been challaned for the violation of provisions of Delhi Master Plan 2021 or for the violation of policies framed thereunder. Accused deserves acquittal.
12. I have heard Ld. AMP for the complainant MCD, ld. Counsel for the accused and have carefully gone through the record.
13. In the present case the accused has been challaned for running the work of Information Technology Enabled Services/ Providing Services without municipal licence. For convenience sake and for better appraisal of the facts of the present case, section 416 of DMC Act is reproduced hereunder: 416 Factory, etc not to be established without permission of Commissioner:
(1) No person shall, without the previous permission in writing of the Commissioner, establish in any premises, or materially alter, enlarge or extend any, factory workshop or trade permission in which it is intended to employ steam, electricity, water or other mechanical power. (2)........
Therefore, for attracting the above provisions, following ingredients are required to be fulfilled.
7( i). That accused was running any factory, workshop or trade;
(ii). Without written permission of the Commissioner and
(iii). By using steam, electricity, water or other mechanical power.
14. It has been vociferously argued by Ld. Counsel for the accused that business activities of the accused, of using computers, is, for its own use and does not fall within the definition/category of factory. He has referred to section 2 (17) of DMC Act defining the meaning of Factory as following: Section 2(17) " factory" means a factory as defined in the Factories Act, 1948 ( 63 of 1948).
Therefore, help is lent from section 2 (m) of Factories Act, 1948 for the purpose of defining the meaning of Factory, reading as under:
"Section 2 (m) "Factory" as defined under the Factories Act, 1948 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 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 without the aid of power, or is ordinarily so carried on, or but does not include a mine subject to the operation of (the 8 Mines Act, 1952), (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 of part thereof, shall not be construed to make it a factory if no manufacturing process is being carried on in such premises or part thereof;)"
A cursor glance of the above definition of factory particularly explanation II makes its explicit clear that the activities of the accused does not fall within the meaning of factory. Even during the course of cross examination of DW1 by Ld. AMP for the complainant/MCD, no suggestion has been put to the accused that accused was running any factory,workshop or trade.
15. Coming to the section limb of section 416 whether the accused is running trade or workshop. Ld. Counsel for the accused has cross examined PW2 Sh. Ghanshyam, the Challaning Officer, who has deposed that no manufacturing activities were taking place in the premises of the accused. There were no workshop of computer repair or other activities connected with IT sector. This witness in cross examination volunteered there was no workshop like auto workshop or other workshop of any such nature. There was no trading activities ( sale & purchase) of any item were going on in the premises in question on the 9 day when he visited the said premises.
16. Therefore, in view of the testimony of this star witness of the complainant - MCD, it can not be stated even by any stretch of imagination if accused were running workshop or doing any trading business.
17. Ld. AMP for the complainant - MCD has stressed much on the word "etc." submitting that the activities being run by the accused are covered within the stretch of word "etc" as mentioned in the heading of section 416, like Section 416 Factory, " etc."
not to be established without permission of Commissioner.
However, submission of Ld. AMP for complainant MCD is misconceived because its a settled proposition of interpretation of statute that words and phrases occuring in a statute are to be taken not in an isolated manner, disassociated from context but are to be read together. This has been so held by Hon'ble Apex Court in AIR 1991, Supreme Court 711 titled Syed Hasan Rasul Numaand Vs. Union of India that : "In matters of interpretation one should not concentrate too much on one word and pay little attention to the other words. No provision in the statute and no word in the section may be construed in isolation. Every, provision and every word must be looked at, generally and in the context in which it is used."
18. It is further contended by Ld. AMP for the complainant MCD that the business activities of the accused concern do find mention in the Delhi Master Plan 2021 at item No. 43(Information Technology enabled services) of Group B 10 under the heading of Industries permissible in commercial centers and the policies issued by the Factory Licensing Department shown at Serial No. 415(Information Technology enabled services). Hence, the accused can be guilty of violation of these provisions.
19. I have gone through the relevant entries in the Delhi Master Plan 2021 and the policies issued by the Factory Licensing Department. However the facts remains that the accused has not been charged for the violation of the Delhi Master plan and the above mentioned policies of the Factory Licensing Department. In the present case, notice has been framed against the accused for offence punishable u/s 416/417/430 of DMC Act. The accused can not be convicted for the offence of which he had no notice because in that situation great prejudice shall be caused to the accused.
It has been so held in AIR, 1989 Supreme Court, 129 in the case of Laisal Haque and another vs Mohd. Abu Bakar Siddiqui Molla that: " In judging a question of prejudice, as of guilt, the courts must act with a broad vision and look to the substance and not to the technicalities and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself."
20. It is submitted by Ld. Counsel for the accused that even the provisions of 11 section 417 of DMC Act are not applicable to the business activities of the accused concern. The said section 417 is reproduced hereunder for a ready reference.
Section 417. Premises not to be used for certain purposes without licence)
1) No person shall use or permit to be used any premises for any of the following purposes without or otherwise than in conformity with the terms of a licence granted by the Commissioner in this behalf, namely:
(a) any of the purposes specified in Part I of the Eleventh Schedule;
(b) any purpose which is, in the opinion of the Commissioner dangerous to life, health or property or likely to create a nuisance;
(c) keeping horses, cattle or other quadruped animals or birds for transportation, sale or hire or for sale of the produce thereof; or
(d) storing any of the articles specified in Part II of the Eleventh Schedule except for domestic use of any of those articles:
21. According to the above provision of law the premises are not to be used for certain purposes without licence. The certain purposes find mention in part I & II of 11th Schedule. It is the contention of Ld. Counsel for the accused that the business activities of the accused do not find mention either in part I & II of 11th Schedule. To this proposition, Ld. AMP for the complainant/MCD has concurred but submitted that the Information Technology Enabled Services/ Providing Services are licenceable under Delhi Master Plan 2021 and the policies formulated and published by the Factory Licencing Department of the complainant. This aspect of the matter has already been dealt with in the foregoing para and need not to be elaborated again. The bare perusal of part I & 12 II of 11th Schedule of DMC Act, does not enlist the Information Technology Enabled Services/ Providing Services. Not only this, it is also not the case of the MCD that the accused was found storing anything in the given premises. On this aspect also Ld. Counsel for the accused has cross examined PW2 Ghanshaym, the Factory Inspector. The PW2 Sh. Ghanshyam in his cross examination has categorically deposed that he did not see storage of any articles, mentioned in the above schedule, in the premises of the accused.
22. The accused had moved an application under RTI Act seeking certain informations from the complainant - MCD. One such application is Ex.DW1/1. The certain queries raised by the accused in the said RTI application are reproduced hereunder for adjudicating upon applicability of section 417 of DMC Act:
(i) if computers numbering about 15 or more are installed there in along with internet connection and printer, for internal office use by the company?
23. In response to the above said RTI application Ex.DW1/1, the complainant MCD replied vide Ex.DW1/6 responding to affect that: " for opening of branch office by a public Limited Company in conforming area under the jurisdiction of MCD no licence is required to compliance of Section416, 417 of DMC Act. "
24. In view of the above admission on the part of the Challaning Officer PW2. Ghanshyam himself, reply Ex.DW1/6 as well as perusal of part 1 & 2 of 11 schedule 13 of DMC Act, further it is nowhere the case of the complainant MCD that the area in question does not fall in the conformed area, the accused has been able to prove that section 417 of DMC Act is also not applicable to them.
25. Ld. Counsel for the accused has further attacked the authority of PW1. Shri Surender Kumar, Deputy Law Officer on the ground that the authority of PW1 vide which he has been authorized to lodge the complaint in the court has not been proved on record as per law as neither the certified copy of the office order dated 18.08.1986 nor its original has been brought to the court for perusal as well as for comparison. In order to bridge the gap, Ld. AMP for the complainant MCD has examined PW3 Sh. Naresh Arya. PW3 had brought to the court an attested copy of office order 18.08.1986. During the course of cross examination he deposed that he has not brought the original of office order dated 18.08.1986.
26. I lay hand on Section 63 of the Indian Evidence Act which contemplates the situations where secondary evidence can be led. For quick reference the said provision of law is reduced as under: Section 63: Secondary Evidence means and includes: (1) certified copies given under the provisions hereinafter contained. (2) copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies:
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(3) copies made from or compared with the original (4) counterparts of documents as against the parties who did not execute them;
(5) oral accounts of the contents of a documents given by some person who has himself seen it.
27. In view of the above provision of law the authority to lodge the present prosecution against the accused is dented one and can not be relied upon. None of the requirements of Section 63 of Indian Evidence Act have been fulfilled by the complainant MCD while trying to prove on record their Ex. PW1/B. A similar provision of law has been enacted u/s 493 of the DMC Act as under:
493. Admissibility of document or entry as evidence A copy of any receipt, application, plan, notice, order or other document or of any entry in a register in the possession of any municipal authority shall, if duly certified by the legal keeper thereof or other person authorized by the Commissioner in this behalf, be admissible in evidence of the matters and transactions therein recorded in every case where, and to the same extent to which, the original document or entry record would, if produced have been admissible to prove such matters and transactions.
28. The only requirement of the above provision of law is that a copy of any receipt, application, plan, notice, order or other document can be deemed to be admissible in evidence if a duly certified copy of the 15 same is brought on record certified by the legal keeper thereof or any other person authorized by the commissioner in that regard. In the present case only an attested copy of office order CW1/B has been brought on record and it is not disclosed as to in whose legal possession it was or whether the person who has attested the same was authorized by the commissioner in that regard.
29. In view of the above mentioned facts and circumstances, the provisions of law and precedent mentioned here in above, the complainant MCD has not been able to prove its case against the accused that on 18.09.2008 at 4.20PM, accused concern M/s Voltas Ltd. through its Manager, (Administration) Sh. D. K. Bakshi, at B1/E22, Second Floor, Mohan Co Operative, Industrial Estate, Mathura Road, Delhi was found running the work of information technology enabled services/ providing services with 10 K.W. ( approximately) without Municipal Licence by using 17 computers, one printer, one server etc. Therefore, the accused is hereby acquitted of the offence punishable u/s 416/417/430 of DMC Act. The bail bonds surety bond discharged. File be consigned to record room after due compliance.
Announced in the open court
on 31st May,2011. . (KISHOR KUMAR)
METROPOLITAN MAGISTRATE02, (MUNICIPAL)
DWARKA COURTS:DELHI.