Delhi District Court
Haque And Another vs Mohd. Abu Bakar Siddiqui Molla That: on 20 December, 2011
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IN THE COURT OF SH.KISHOR KUMAR
METROPOLITAN MAGISTRATE02, (MUNICIPAL)
DWARKA COURTS:DELHI.
IN RE: CHALLAN NO.1369/11
CENTRAL ZONE
U/S 416/417/430 DMC ACT, 1957.
1. Challan No. : 1369/11
2. Date of Institution : 05.07.11
3. Name of the accused, and (1) M/s V. Customers Services
his parentage and residence India, Pvt. Ltd. through its
AR/ Directors
(2) Mr.Akramur Rahman
(Accused /AR)
(3) Sh.G.S Aggarwal (Director)
(4) Sh.Manish Kumar
Satnaliwala (Director
Finance)
(5) Sh.S.C.Nanda (Director)
all r/o B1/G4, Mohan Co
Operative Industrial Estate,
Mathura Road, New Delhi
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5. Date when judgement : Not reserved
was reserved
6. Date when Judgment : 20.12.2011
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 Judgment : 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 14.6.11, at about 2.40 p.m , the accused concern M/s V. Customers Services India Pvt. Ltd. through its various directors were found running the work of information technology enabled services and data processing at B1/G4, Mohan Co Operative Industrial Estate,Mohan Nagar, New Delhi with 150 computers installed at the said premises using power load of 150 K.W without Municipal Licence.
2. The challan was presented before the court. The court after taking 3 cognizance of the challaned offences, summoned the accused. The accused No.5 Mohd Aakramur Rahman had appeared in person for himself and as authorized representative on behalf of other accused persons and chose to contest the instant challan. Copy of challan etc. were supplied to the accused in 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 was framed to which accused pleaded not guilty and claimed trial.
3. In order to prove its case, complainant /MCD has examined two witnesses i.e PW1, challaning officer and PW2 AMP for the complainant/MCD.
4. On closing of complainant evidence, the accused was examined u/s 313 Cr.P.C. , wherein he denied the case of the complainant MCD and stated that no computer data processing unit or manufacturing of software like floppy, cartridges , chips, cassettes are/were manufactured at the premises. The accused further submitted that a call center at the alleged premises was running wherein complaints of customers were received and the same were forwarded further for readdressal of the complaints. So far as the accused No.5 .Mohd Aakramur Rahman is concerned, it is averred in the examination u/s 313 Cr.P.C that he was neither an employee/director/AR. Further submitting for the activities being undertaken by the accused concern no licence as alleged by the complainant/MCD 4 is required. The accused desired to lead defence evidence.
5. Further to prove its case, the accused has examined two witnesses i.e DW1 .Mohd Aakramur Rahman and DW2 Sh.Sudhir Kumar Roy.
6. PW1, Challaning officer Sh.R.K.Bansal, factory inspector, Licensing department , M.C.D has deposed on oath that he had visited the premises bearing No.B1/G4, Mohan Co operative Industrial Estate, New Delhi on 14.6.11 , at about 2.40 p.m, there he found running of ITES and data processing by the accused company along with 150 computers without obtaining the Municipal License or permission from the MCD. The licence was neither shown nor displayed at the site. Accordingly, the PW1 , challaning officer issued the present challan Ex.PW1/1 for the offences punishable u/s 416/417/430 DMC Act bearing his signatures at point A. At the time of inspection, accused NO.5 met him at the spot and the counter chit of the challan was handed over to him. PW1 has further deposed that the activities of data processing of ITES are covered under the policy of MCD, mentioned at Sr. No. 413 and 415 of the said policy Ex.PW1/2.
7. Initially, the PW1 was subjected to cross examination by accused No.5 himself but later on, on the application of the accused u/s 311 Cr.P.C, PW1 was recalled. At this stage, PW1 has been subjected to a lengthy cross examination. During his further cross examination u/s 311 Cr.P.C, PW1 has deposed that it is 5 correct that no manufacturing activities like making of cassettes, disks or any other goods were going on in the premises in question. It is further admitted by PW1 that the accused concern is engaged in the business activities of call center where calls of customers are received and information and services are provided to them. At this stage, PW1 voluntarily deposed that a private call center falls within the category of data processing. PW1 had not seized anything at the spot nor he had taken any photographs.
8. PW2 is a formal witness i.e the presenting officer/AMP who has presented the instant challan before the court. The endorsement made on challan Ex.PW1/1 by PW2 is at point B bearing his signatures at mark C. PW2 had deposed that he is empowered to launch prosecution against the accused, by virtue of section 467
(c) of the DMC Act and he has brought on record an office order in this regard as mark D. PW2 has also been subjected to cross examination by Ld.counsel for the accused. During cross examination , PW2 has deposed that original of office order mark D is in the concerned office and that at the time of filing the present complainant the office order mark D was not in possession of PW2.
9. It is argued by Ld.AMP for the complainant/MCD that complainant has been successful in proving its case against the accused beyond reasonable doubt on the basis of testimonies of PWs and the documents proved that at the relevant date, time and place the accused concern was found running the work of 6 information and technology Enables services/data processing with approximately 150 computers consuming 150 KW electricity 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 of provisions of section 416/417/430 of DMC Act. Ld.AMP for the complainant /MCD has also referred to the Delhi Master Plan, 2021,policies framed thereunder and has argued that the information technology enabled services/data processing requires 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 guilty of the accused successfully.
10. On the other hand, 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. The testimonies of PWs cannot be relied upon and no conviction can be based on such shaky depositions. It is further argued by Ld.counsel for the accused that complainant has not been able to prove its case beyond reasonable doubt against the accused. It is further argued by Ld.counsel for the accused that the business activities of the accused concern neither fall u/s 416 DMC Act nor u/s 417 of the DMC Act. The accused is neither running a factory nor work shop nor any trade. So far as the submission of Ld.AMP for the complainant / MCD is concerned that 7 accused has violated the policy of the complainant/MCD under which as per item No.413 and 415, the accused is required to obtain licence for ITES and data processing, it is argued by Ld.counsel for the accused that admittedly the accused has not been challaned for violation of alleged policy of the MCD. Hence, the argument of Ld.AMP for the complainant is not sustainable. Further the policy cannot over ride the act passed by the Parliament. At last, dismissal of the present case and acquittal of all the accused persons is prayed for.
11. In support of its case, the accused has relied up a judgement of the Hon'ble Madras High Court in WA No.806/95 and 117/97 dated August 14,1997.
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 have been challaned for running the work of Information Technology Enabled Services and data processing 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 8 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.
( 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:9
(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 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;)"
15. 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 10 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.
16. Coming to the section limb of section 416 whether the accused is running trade or workshop. The PW1 challaning officer, during his cross examination has deposed that no manufacturing activities like making of cassettes, disks or any other goods were going on at the given premises. PW1 has further admitted that no other manufacturing work was going on in the premises in question.
17. 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.
18. 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 occurring in a statute are to be taken not in an isolated manner, disassociated 11 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."
19. 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 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.
20. 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 12 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."
21. It is submitted by Ld. Counsel for the accused that even the provisions of 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 13 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:
22. 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 touched upon again. The bare perusal of part I & 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 examination PW1 challaning officer. At this stage, referring to the cross examination of PW1 challaning officer becomes relevant wherein he has deposed that it is correct that no manufacturing activities like making of cassettes , disk or any other goods were going on at the given premises. Further admitted that no other manufacturing work was going on in the premises in question.
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23. In view of the above discussion, it cannot be said that accused is either running a factory, a trade or work shop. Ld.counsel for the accused while relying upon WA No..806/95 and 117/97 dated August 14,1997 has submitted that in this case Hon'ble Madras High Court had interpreted the 'factory' as also the reason for such exemption of computer units of their not falling into the category of factory. The Hon'ble Madras High Court had held that " the only object of introducing explanationII is to march in step together with industrial modernization and the electronic innovation in industrial field. Computer is a recent innovation and has augmented industrial development of a great extent. By computerization efficiency has been increased adding to the national resources available for development. The legislature still thought of more scope for use of electronics and computer, and its contribution to national development. Thus giving priority to the laudable object of national prosperity legislature thought it proper to grant immunity to such units from application of welfare legislation namely labour laws, so that such development projects can strengthen national growth without any hurdle or impediment.
24. The accused has also during his examination as DW1 has brought on record the Ex.DW1/B which is a manual on IT and ITES Industry in India submitting that the aim and object of the Government has been to develop the electronic and computer power in the country so that employment and opportunities are afforded 15 to its citizens.
25. Ld. counsel for the accused has referred to page No.22 of Article No.V of Ex.DW1/B submitting that IT Software and IT services companies ,being constituents of the knowledge industry, shall be exempted from routine inspection by inspectors like those for Factory, Boiler, Labour, Pollution, Environment, Industry in line with the approve policy of Government of India. Moreover, the State Government agrees in principle to selfcertification/exemption as far as possible for the IT software industry from the provisions of the following act/Regulations i.e. Factory Act, Employment exchange (Compulsory Notification of Vacancies ) Act; Payment of Wages Act; Minimum of Wages Act; Contract Labour (Regulation and Abolition) Act; Workmen Compensation Act; Shops and Establishments Act; and Employees State Insurance Act.
26. I have gone through Ex.DW1/B and find substance in the submission of the Ld.counsel for the accused that ITES and data processing activities requires no licence from the complainant/MCD. Ld.counsel for the accused has further attacked the authority of PW2 to launch the proceedings against the accused on the ground that original of mark D i.e. Office order dated 18.8.86 has not been proved on record as per Evidence Act as neither the certified copy thereof was filed on record nor the original of the same was brought on record for its perusal and comparison.
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27. 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:
(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.
28. 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 mark D. 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 17 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.
29. 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 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 mark D 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.
30. 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 18 able to prove its case against the accused that on 14.6.11 at 2.40 PM, accused concern M/s V. Customers Services India Pvt. Ltd. through its various directors were found running the work of information technology enabled services and data processing at B1/G4, Mohan Co Operative Industrial Estate, Mohan Nagar, New Delhi with 150 computers installed at the said premises using power load of 150 K.W electricity. Therefore, the accused are hereby acquitted of the offences punishable u/s 416/417/430 of DMC Act.
31. The bail bonds surety bond discharged. File be consigned to record room after due compliance.
Announced in the open court on 20th December,,2011. (KISHOR KUMAR) METROPOLITAN MAGISTRATE02, (MUNICIPAL) DWARKA COURTS:DELHI.