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Union of India v. Shri A.B. Shah & Others

Supreme Court of India · 9 May 1996 · [1996] SUPP. 2 S.C.R. 620

Court
Supreme Court of India
Decided
9 May 1996
Reported as
[1996] SUPP. 2 S.C.R. 620
Result
Appeal(s) allowed
Bench
Venkataswami K. (J)
Length
7 pages
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PETITIONER:
UNION OF INDIA
Vs.
RESPONDENT:
SHRI A.B. SHAH & OTHERS
DATE OF JUDGMENT: 09/05/1996
BENCH:
VENKATASWAMI K. (J)
HANSARIA B.L. (J)
CITATION:
JT 1996 (5) 128 1996 SCALE (4)307

ACT

HEADNOTE

JUDGMENT

JUDGMENTK.VENKATASWAMI,J.

Aggrieved by the judgment in Criminal Appeal no.24/81 dated 26.8.1988 on the file of Bombay High Court (Nagpur Bench), this appeal is filed by special leave.

The appellant preferred a complaint under section 73 of the Mines Act 1952 (hereinafter referred to as "the Act") read with Regulation No. 100 (1) of the Coal Mines Regulations 1957 (hereinafter referred to as "the Regulation"). The facts leading to the filing of this Appeal may be stated in brief to appreciate the contentions raised before us. The facts are as under :

Kamptee Colliery originally was owned by the Oriental Coal Company Limited. At the instance of the agent of Oriental Coal Company Limited, the Director General of Mines Safety granted permission on 2.1.1971 under Regulation 100(1) of the Regulations to split pillars in conjunction with hydraulic sand stowing in No. 1 seam in the area. Later on, the agent of the Oriental Coal Company Limited applied for certain modifications in conditions Nos. 5 and 6 which was granted on 14.6.1971. Subsequently, on 30.1.1973, the possession of the coal mines was taken over by the Central Government and the ownership of the said coal mines vested in the Coal Mines Authority on 9.8.1973. The Deputy Director of Mines at Nagpur made an inspection on 2.4.1974 and found that the sizes of split galleries were about 8.2 meters. It was in violation of condition No.1 imposed by the Director of Mines Safety. The agent was called upon to explain the violation by the Joint Director of Mines Safety by his letter dated 30.4.1974. A reply was sent on 13.5.1974. Explanation was called for from respondent No.1 on 10.8.1974. No reply was received, inspite of several reminders. The Deputy Director of Mines Safety again inspected the mines in question on 26.8.1975, along with the agent. and found the violation of condition No.1 continuing and also found that the adjacent galleries were not kept stowed of the pillar where splitting had commenced. After the taking over of mines as mentioned above. the coal mine in question formed part of the Western Coal Fields Limited. As the concerned persons had not complied with the conditions subject to which the splitting of pillars in conjunction with hydraulic sand stowing was granted, the Inspector (now, Deputy Director of Mines) filed a complaint in the Court of Judicial Magistrate, First Class, Ramtak, Nagpur, alleging contravention of the conditions of permission. The Trial Court framed charges accordingly to which respondent Nos. 1 to 4 pleaded not guilty and claimed to be tried. Two principal contentions were advanced in defence before the Trial Court. They were that the complaint was barred by limitation prescribed under Section 79 of the Act and in any case, respondent Nos. 1 to 4 were not in management of the coal mines in question when the alleged offence was alleged to have been committed and, therefore, they could not be criminally proceeded against.

The learned Trial Judge accepted both the contentions of respondent Nos. 1 to 4 and consequently acquitted them. On appeal preferred by the appellant, the High Court also confirmed the acquittal accepting the same contentions. Hence the present appeal.

Before dealing with the question of law that arises for Our consideration, we want to express our anguish that we did not get the required assistance in this case. The appellant except filing the Judgment of the High Court and the grounds for special leave did not take any step, inspite of passing of 13 years to file other important relevant papers to help the Court in deciding the issue, i.e. the judgment of the Trial Court, the charge sheet filed in the Trial Court, the evidence - both oral and documentary, reply given by the agent for the initial notice etc. They are all required to fully appreciate the issue raised before us. The further agony is that inspite of notices served on the respondents, none appeared before us to answer the contentions raised in this Appeal. In this state of affairs, we have decided the issue on the basis of the typed judgment of the High Court which alone is made available, apart from the grounds in the special leave petition.

The learned counsel appearing for the appellant submitted that the Trial Court as well as the High Court grossly erred in not accepting the contention put forward on behalf of the complainant/appellant that the offence committed by the respondents being ’continuing’ in nature falling under Explanation (a) to Section 79 of the Act, the complaint was not barred by time. He also submitted that the High Court having rightly noted that out of 10 conditions, non-compliance of condition Nos. 3 and 6 would fall under ‘continuing offence’, fell into an error in holding that all the conditions must be read conjunctively and not disjunctively. If the offence is a ‘continuing offence’ falling under Explanation (a) to Section 79 of the Act, then notwithstanding the fact that respondent Nos. 1 to 4 were not in office when the offence was first detected, they are answerable to the charges levelled against them.

We have perused the judgment of the High Court. Before going to the actual question, it is necessary to set out the conditions subject to which the permission was granted. As the document was not typed and produced before us, we are setting out the relevant portion from the judgment of the High Court which reads as follows :

"By the letter ex.27 dated 2nd

January 1971, the Director General

of Mines Safety granted to the

Agent of the Messrs. Oriental Coal

Company Limited, Kamptee Colliery

"permission under regulation 100(1)

of the Coal Mines Regulations, 1957

to split pillars in conjunction

with hydraulic sand stowing in No.

1 seam in the area indicated in

plan No.1 Dep/15/70 dated 26.6.70

at Kamptee Colliery" subject to the

following conditions :

1. Each pillar shall be divided

into four equal stooks by central

dip and level splits. For different

depths, the maximum and minimum

dimensions of galleries and stooks

respectively shall be as follows :

For depth Gallery which Stooks shall be

not exceeding shall not less than

exceed

60 metres 5.4 metres 5 mts x 5 mts

90 metres 5.4 metres 6.6 mts x 6.6 mts

120 metres 5.4 metres 9 mts x 9 mts

153 metres 4.8 metres 10.5 mts x 10.5mts

2. The final height of original and

split galleries shall not exceed

3.6 meters.

3. After splitting is completed all

original and split galleries shall

be stowed solid with sand.

4. Not more than two pillars shall

be under splitting at any time in a

panel.

5. A pillar shall not be split

unless all original and split

galleries on the inbye side have

been fully stowed.

6. Not more than a total length of

45 meters of split shall be left

unstowed at any time in a whole

panel. (Emphasis added)

7. Before starting splitting of

pillars in a panel, it shall be

insolated by stoppings in

compliance with the provisions of

regulation 100(4) of the Coal Mines

Regulation, 1957, and an intimation

to that effect shall be sent to

this Directorate and the Joint

Director of Mines Safety. These

stopping shall be constructed to

the specifications laid down in

this Directorate Circular No.17 of

1964 as modified by Circular No.1

of 1968.

8. No splitting or reduction of

pillars shall be done beneath and

in the vicinity of

dwelling/building or public road,

if any, likely to be affected by

the splitting operations.

9. In the event of any change in

the circumstances connected with

this splitting permission, which is

likely to affect the safety of the

work persons or the mine or the

surface features, an intimation

shall be sent immediately to this

Directorate and the Joint Director

of Mines, Safety and splitting

operations shall be stopped. The

splitting of pillars shall not be

resumed, except with permission in

writing from the Director General

of Mines, Safety.

10. The above permission may be

amended or withdrawn at any time,

if considered necessary.

By letter ex.28 dated 8th

April 1971, the Agent of the

Oriental Coal Company, Kamptee

Colliery applied to the Director

General of Mines Safety, for

certain modifications in conditions

Nos. 5 and 6 of the above

conditions and by the letter Ex.31

dated 14.6.1971 the Director

General of Mines, Safety accepted

the proposal and modified these

conditions. These modified

conditions were as follows :

Condition No.5 :

A pillar shall not be

completely split unless all

original and split galleries on the

inbye side have been fully stowed.

(i.e. the word "completely" was

added) and

Condition No.6:

Not more than 150 meters of

split galleries shall be left

unstowed at anytime in the whole

panel. (i.e. the figure "150

meters" was substituted for the

original words "45 meters").

It is seen from the judgment of the High Court that it accepted that violation of condition Nos. 3 and 6 would constitute ‘continuing offence’ in the light of Sections 73 and 79 of the Act read with Regulation 100 of the Regulations. The High Court however held as follows :

"Here, Shri Bobde for the

respondents Nos. 1 to 4 very

rightly pointed out that the gist

of the offence alleged under

Section 73 of the Mines Act, 1952

in the present case is

‘dipillaring’ in breach of the

conditions contained in Ex.27 dated

2.1. 1971 and not the breach of the

said conditions themselves.

Analyzing the provisions of Section

73 of the Mines Act, 1952, it was

pointed out that the section

contemplates 3 categories of

contraventions made punishable

thereunder :

(a) Contravention of any provisions

of the Mines Act, 1952, or

(b) Contravention of any

regulation, rule or bye-law made

under the Mines Act, 1952 (i.e.

subordinate legislation), or

(c) contravention of any order made

under any provisions of the Mines

Act, 1952 or under any regulation,

rule or bye-law made under the

Mines Act, 1952 (i.e. contravention

of order made under any subordinate

legislation under the Mines Act.

1952).

The present was not a case

falling under the category (a) or

(c) above. There was no order made

in writing as would come within the

ambit of category (c). The

permission Ex.27 dated 2.1.1971 was

not an "order" made under the Mines

Act, 1952 or under the provisions

of any subordinate legislation

thereunder. Shri Bobde pointed out

instances of provisions for making

of such orders by reference to

section 22 and 72(b) of the Mines

Act, 1952 and to Regulations Nos.

65, 101, 103 and 128 of the Coal

Mines Regulations 1957. Shri Bobde

is entirely right in these

contentions. The gist of the

offence alleged in the present case

is "depillaring" in contravention

of the conditions in Ex.27 dated

2.1.1971 on which permission to

depillar was granted. Breach of any

of these conditions by itself is

not punishable under Section 73 of

the Mines Act, 1952."

The High Court further held in paragraph 12 as under :

"Here Shri Bobde very rightly

pointed out that the ten conditions

contained in the letter Ex. 27

dated 2.1.71 have to be read

together as a whole and not one or

two of them separately and in

isolation without the context.

These ten are the composite

conditions on which permission to

depillar is granted. Shri Bobde

drew my attention to the title

mentioned at the subject of the

letter Ex. 27 dated 2.1.71 which in

essence is "permission - to split

pillars in conjunction with

hydraulic sand stowing -" stowing

with sand is, therefore, intended

as an integral part of the

operation of splitting pillars,

i.e. depillaring and does not stand

on its own independent basis. Shri

Bobde pointed out that there is no

provision in the Mines Act, 1952 or

the Coal Mines Regulations 1957

under which the running of a mine

with a failure to stow after

depillaring is itself made an

offence. The charge in the present

case is in respect of breach of

regulation 100 (1), the subject of

which is "Depillaring operation",

in essence the charge is

"Depillaring" or "splitting" in

breach of the conditions on which

permission to split pillars was

granted vide letter Ex.27 dated

2.1.1971."

So far as condition No.6 is concerned, the High Court held as follows :

"Therefore the words "at any time"

contained in condition No.6" not

more than 150 meters of split

galleries shall be left unstowed at

any time in the whole panel"

necessarily imply "during the

operation of splitting", and are

not indicative of a state of

continuity in the mines year after

the splitting is completed, as a

continuing contravention punishable

under Section 73 of the Mines Act,

1952, read with Regulation 100(1)

of the Coal Mines Regulations 1957.

The offence is, therefore, not a

continuing one, it is completed as

soon as splitting or dipillaring is

commenced or conducted or carried

out in breach of any of the

conditions on which permission to

depillar was granted."

Now, the issue is whether the High Court was right in coming to the conclusion that the offence was not a ’continuing offence’ on the main ground that all the conditions must be read together.

In State of Bihar vs. Dev Karan (AIR 1973 SC 908) this Court had the occasion to consider the meaning of ’continuing offence’ falling under Explanation (a) to Section 79 of the Act. This Court held as follows in para 5:

"Continuing offence is one which is

susceptible of continuance and is

distinguishable from the one which

is committed once and for all. It

is one of those offences which

arise out of a failure to obey or

comply with a rule or its

requirement and which involve a

penalty, the liability for which

continues until the rule or its

requirement is obeyed or complied

with. On every occasion that such

disobedience or noncompliance

occurs and recurs there is the

offence committed. The distinction

between the two kinds of offences

is between an act or omission which

constitutes an offence once and for

all and an act or omission which

continues and therefore constitutes

a fresh offence every time or

occasion on which it continues. In

the case of a continuing offence,

there is thus the ingredient of

continuance of the offence which is

absent in the case of an offence

which takes place when an act or

omission is committed once and for

all."

Bearing the above principle in mind, we have to find out whether the offence committed by the respondents, in particular violation of conditions Nos. 3 and 6, could be treated as ’continuing offence’ or completed offence. To appreciate this, we must also bear in mind the object and purpose of the Act. This we can get from the long title which reads "An Act to amend and consolidate the law relating to the regulation of labour and safety in mines". If we look into condition Nos.3 and 6 with the object and purpose of the Act in mind. it has to be held that these conditions are not only relatable to what was required at the commencement of dipillaring of process, but the unstowing for the required length must exist always. The expression "at any time" finding place in condition No.6 has to mean, in the context in which it has been used, "at any point of time", the effect of which is that the required length must be maintained all the time. The accomplishment of object of the Act, one of which is safety in the mines, requires taking of such a view, especially in the backdrop of repeated mine disasters which have been taking, off and on, heavy toll of lives of the miners. It may be pointed out that the word "any" has a diversity of meaning and in Black’s ’Law Dictionary’ it has been stated that this word may be employed to indicate "all" or "every", and its meaning will depend "upon the context and subject matter of the statute". A reference to what has been stated in Stroud’s ’Judicial Dictionary’ Vol.I, is revealing inasmuch as the import of the word "any" has been explained from pages 145 to 153 of the 4th Edition, a perusal of which shows it has different connotations depending primarily on the subject matter of the statute and the context of its use. A Bench of this Court in Lucknow Development Authority vs.M.K. Gupta 1994 (1) SCC 243, gave a very wide meaning to this word finding place in the section 2(o) of the Consumers Protection Act, 1986 defining "service".(See para 4).

We, therefore, hold that the aforesaid conditions have to be obeyed always, disobedience of which shall become "continuing offence," in the light of what has been stated in the decision of Dev Karan (supra). So, even if other conditions are held to be falling under completed offence, violation of condition Nos. 3 and 6 cannot be so treated as to invoke the time limit prescribed under Section 79 of the Act. Therefore, we are inclined to differ from the view taken by the High Court and hold that violation of conditions Nos. 3 and 6 are ’continuing offences’ and the charge framed is not barred by limitation. Once this conclusion is reached, the plea taken by respondent Nos. 1 to 4 that they were not the concerned officers when the offence was detected, will not hold water. Consequently, the preliminary objection raised by the respondent Nos.1 to 4 cannot be sustained.

The appeal is, therefore, allowed. The matter is remanded to the Trial Court for disposal on merits in accordance with law.

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