The failure to obtain a license for a factory is a continuing offense.

JUDGMENT - Gajendragadkar, J.

1. These two appeals arise from orders of acquittal passed by the learned Chief Presidency Magistrate in favour of the respondent. In both the cases the respondent was charged under S. 92 of the Factories Act (Act LXIII of 1948). The respondent is the occupier of Wadia Mahal Salt Works which, according to the prosecution case, is a factory as defined under S. 2(m) of the Factories Act. This factory is situated near Koliwada, Sion, Bombay 22. In the case from which criminal appeal No. 761 of 1954 arises, the charge against the respondent was that, before occupying or using the said premises as a factory, he had failed to submit to the Chief Inspector of Factories, Bombay State, a written notice of occupation in form No. 3 as required under S. 7(1) of the Factories Act, and the rules made thereunder. In the companion case from which criminal appeal No. 762 of 1954 arises, the charge was that the respondent had failed to submit to the Chief Inspector of Factories an application in form No. 2 for registration of the factory and grant of licence as required under S. 6 of the Factories Act read with rule 4 of the Bombay Factories Rules, 1950. It appears that the learned Chief Presidency Magistrate was about to take the pleas of the respondent to the two charges framed against him when it was brought to his notice by the accused that one of his pleas was that the prosecution in both in cases was barred by limitation under the provisions of S. 106 of the Factories Act. The learned Chief Presidency Magistrate was disposed to accept this plea and so he had held in both the cases that the prosecution is barred by limitation. In the result, he has acquitted the respondent of the offences charged. That is how the only question which arises before us in these two appeals is whether the learned Chief Presidency Magistrate was right in coming to the conclusion that the prosecution against the respondent in both the cases was barred by limitation.

2. Before dealing with this question, it would be convenient to refer to some more facts. In the complaint which has been filed against the respondent by the inspector of factories it has been alleged that the complainant had visited the factory on 23 May, 1953, at about 10 a.m. and he had found that the factory was working. The complainant noticed that the workers shown in the list atached to the complaint were working in the factory and that common salt was being manufactured from sea water by evaporation in the pans. A pump driven by an oil engine of 9 h.p. was also seen to be in use. It is common ground that the inspector has visited this factory on an earlier occasion on 10 March, 1952, and on 14 March, 1952, the occupier had been called upon to comply with the requirements of the Factories Act in respect of this factory. The occupier took on steps to comply with the requisition and it was found on the second visit which the inspector paid to the factory on 23 May, 1953, that the factory was working without complying with the requisition which had already been served on the occupier. It would thus be seen that, if the present complaints are held to be in respect of the offence which was discovered by the inspector on his first visit to the factory on 10 March, 1952, the prosecution of the respondent would be clearly barred by limitation. On the other hand, if it is held that the failure of the respondent to comply with the requisitions served on him and his conduct in running the factory without complying with the said requisitions constitutes a continuing offence, then the prosecutions would not be barred by limitation.

3. At this stage it would be relevant to consider the material provisions of the Factories Act. This Act came into force on 23 September, 1948. Section 6 of the Act lays down the procedure in regard to the approval, licensing and registration of factories. By this section the Provincial Government is authorized to make rules in respect of the matters

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