An offence under Section 92 of the Factories Act, 1948, for failing to securely fence fermentation vats is a continuing offence, and a fresh offence is committed every day that the vats remain unfenced.

( 1 ) THIS is an appeal by the State Government against the acquittals of the respondents (accused) of offences punishable under Section 92 of the Factories Act, 1948 (hereinafter referred to as 'the Act' ).

( 2 ) A complaint was filed in the Court of Magistrate First Class, Seoni, by the Chief Inspector of Factories against the respondents (accused) alleging that they were the ocupier and the manager respectively of the Seoni Distillery, Seoni; that on 26-3-1959, when the aforesaid distillery was inspected by the Inspector of Factories, it was found that the fermentation vats of the distillery were not securely fenced by railings or by any safety devices as required by Section 33 of the Act and that they thus committed an offence punishable under Section 92 of the Act.

( 3 ) RESPONDENT No. 2, on 19-8-1959, filed a written objection to the maintainability of the aforesaid complaint on the ground that the offence having come to the knowledge of the Inspector on 27-10-1957, the complaint was barred by limitation under Section 106 of the Act.

( 4 ) IT is not disputed that formerly the Inspector had inspected the distillery on 27-10-1957, 2-2-1958 and 23-10-1958 also and had raised similar objections.

( 5 ) THE trial Court, relying on an unreported decision of Pandey, J. in Shaligram Mehta v. State of M. P. , Criminal Revn. No. 274 of 1958, D/-23-6-1959 (M. P.), held that as the complaint in the instant case had not been filed within three months of 27-10-1957, the date when the breach of the section first came to the knowledge of the Inspector, it was barred by time. Accordingly he dismissed the complaint and acquitted the respondents-accused.

( 6 ) THE appeal, therefore, raises a short question whether, under the circumstances of the case, the complaint was barred by limitation under Section 106 of the Act.

( 7 ) THE relevant portion of the aforesaid section is in the following terms: "no Court shall take cognisance of any offence punishable under this Act unless complaint thereof is made within three months, of the date on which the alleged commission of the offence came to the Knowledge of an Inspector. . . . "

( 8 ) THE learned counsel for the State contends that the omission to securely fence the fermentation vats was a continuing offence, i. e. , it was an offence de die in diem, so that every day's, non-compliance with the provisions of Section 33 constituted a new offence and consequently so long as a complaint was filed within three months of the day when the offence was alleged to have been committed or to have come to the knowledge of the Inspector, it was within time.

( 9 ) IN our opinion, the contention is correct and shall have to be upheld. Section 33 provides that the fermenting vats shall be securely fenced. If they are not so fenced, there is a contravention of the provisions of a section under the Act; and Section 92 of the Act says that such contravention shall be punishable as an offence. The complaint in the instant case alleges that on 25-3-1959 the fermentation vats were not securely fenced and if that is proved, we have no doubt that an offence was committed, on that date. As regards limitation, the contravention complained of was of a date which was within three months of the date of the complaint and was thus within time under Section 106 of the Act.

( 10 ) IN Verney v. Mark Fletcher and Sons Ltd. , 1909-1 KB 444, Lord Alverstone, C. J. , while dealing with a similar situation created by Section 146 of the Factory and Workshop Act, 1901 (1 Edw. 7 c. 22), which laid down that the information shall be laid within three months after the date on which the offence comes to the knowledge of the Inspector, said: "the information in the present case charges the respondents that their factory was on July 1, 1908, not kept in conformity with the Act by reason of the omission to fence their fly-wheel. If that be proved, I have. . . . . . not the slightest doubt that there was on July 1 a direct and continu