Cognizance taken for the complaint filed by Assistant Inspector is valid.

1. Murugan, the petitioner herein was convicted for the following offences is three counts.

1. Under Sec.6 (1), Rule 3 (1) and 2,

2. Sec.6(1), Rule 4 (1)2 and 3 and

3. Sec.7(1), Rule 12 of Tamil Nadu Factories Act, 1948 and Tamil Nadu Factories Rules, 1950 and sentenced to pay a fine of Rs.2,000 on each count, in default to undergo to two months simple imprisonment.

2. Briefly stated the facts leading to the filing of this revision are the following: The petitioner who is the proprietor of Vinu Match Works is manufacturing match boxes. On 13.3.1990 at about 4 p.m. P.W.1 Assistant Inspector of Factories inspected the factory and found 12 persons were working and found out that the factory was working with the aid of the power. Since there was no licence to run the factory, P.W.1 sent a show cause notice to the petitioner asking for an explanation. Ex.P-1 is the report prepared by P.W.I at the time of inspection. In the said report all the twelve persons who were found working at the relevant time in the factory had signed. On the basis of the report as stated earlier, Ex.P-2 show cause notice was issued to the petitioner and since it was not served on him it was returned unserved to P.W.1. Thereafter in person the said show cause notice was served on the petitioner. The acknowledgement is Ex.P-4. Ex.P-5 is the reply sent by the petitioner. In the said reply the petitioner stated that only five persons were working in his factory and as such, he is not bound to obtain any licence. Since this explanation was not satisfactory, P. W. 1 sent another letter Ex.P-6 proposing to launch a prosecution against him. This letter also was returned unserved. Therefore, P.W.1 served the said letter on the petitioner in person and obtained acknowledgement Ex.P-7. Thereafter, after obtaining sanction Ex.P-10, P.W.2, filed a complaint.

3. During the course of trial, P.Ws. 1 and 2 were examined. On the side of the defence, the petitioner examined himself as D.W.1 and examined another person by name Natarajan as D.W.2. The case of the defence is that the petitioner was having three factories and one of such factory is Vinu Match Factory in which only five persons were working. Therefore, it is stated that unless there is a material to show that twelve persons were working in the same premises, it cannot be called to be a ‘Factory’.

4. On considering the materials produced by both the parties, the trial court found the accused guilty of the above offences on three counts and imposed fine as referred to above.

5. As against the trial courts judgment, the petitioner filed an appeal before the lower appellate court in which in turn confirmed the conviction imposed by the trial court. Hence, this revision.

6. Mr.R.Antony Xavier, the learned counsel for the petitioner pressed into service, challenging the impugned judgments, the following three contentions:

1. According to the report Ex.P-1 prepared by P.W.I at the time of inspection P.W.I found that 10 women and 2 men were working. But in the evidence he would state that 10 men and 2 women were found working. This is a material contradiction. Therefore, the prosecution case cannot be believed.

2. Under Sec.105 of the Factories Act, a complaint could be filed and cognizance could be taken by the learned Magistrate only on the complaint of Inspector of Factories. In the instant case the Assistant Inspector had filed a complaint and the learned Judicial Magistrate took congnizance on that. So, this is not a valid congnizance.

3. Under Sec.8 of the Factories Act, only an Inspector or an Additional Inspector could alone conduct inspection and file a complaint. In this case, the Assistant Inspector has filed the complaint, Moreover, the officer who granted sanction in this case cannot be said to be competent authority as provided under Sec.8 of the, Act. Furthermore in the instant case, the original sanction had not been produced. Ex.P-10 which had been marked in this case is only a copy.

7.