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The State Vs. Ismail Shakur Morani - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal No. 499 of 1956
Judge
Reported inAIR1958Bom147; (1957)59BOMLR485; 1958CriLJ489; ILR1957Bom480
ActsExplosives Act, 1884 - Sections 5(3); Explosives Rules, 1940 - Rule 81; Rag Flock Act, 1911 - Sections 1(1)
AppellantThe State
Respondentismail Shakur Morani
Appellant AdvocateY.V. Chandrachud, Asst. Govt. Pleader
Respondent AdvocateB.M. Mistry and ;R.D. Chadha, Advs.
Excerpt:
.....or building--workers of accused affixing paper to bottom of containers to be used for making fire-works--workers doing such work outside manufacturing sheds--whether what workers were doing was part of process of manufacturing fire-works--condition contained in licence whether contravened by accused.;the accused held a licence under the indian explosives act, 1884, for manufacturing, possessing and selling fire works, and one of the conditions imposed upon him by the licence was that the explosives should be manufactured in a tent or lightly constructed one-storeyed building kept and used only for the purpose of manufacture of the explosives. the licenced premises of the accused consisted of three manufacturing sheds, one storage shed, one ingredient shed and one drying platform. the..........it cannot be said that the people who are engaged in the making of those things are engaged in the work of manufacturing a motor car. these are all parts of a motor car. until these parts are taken to the factory for being assembled and until the process of assembling starts, the process of manufacturing a motor car cannot be said to start. in like manner, until the containers, to the inside bottoms of which paper is affixed, are taken to the manufacturing sheds and until the work of putting composition powder into them commences, the process of manufacturing chiddias cannot be said to have commenced. in this connection, it would not be out of place to refer to the evidence of the expert witness mr. phadnis whom the prosecution has examined. mr. phadnis has said that'preparing.....
Judgment:

Vyas, J.

1. This is an appeal by the State of Bombay and it is an appeal from the Judgment of the learned Presidency Magistrate, 10th Court, Andheri, Bombay, acquitting the respondent who was charged with having committed an offence under Section 5, Sub-section (3) of the Indian Explosives Act read with Rule 81 of the Explosives Rules, 1940,

2. On 24-8-1954, at about 2.45 O'clock in the afternoon an explosion occurred in the Morani Fire Works situated at Andheri, aS a result of that explosion, 19 lives were lost and some workers sustained injuries. One of the injured persons was Namdeo Dharma whose right leg had to be amputated. The respondent is the owner of the Morani Fire Works. He was holding two licences under the Indian Explosives Act. In this appeal we are concerned with the first licence. It was a licence for manufacturing possessing and selling 200 Lbs. of fire works. This licence was dated 12-5-1947. It was renewable annually and it was to be valid upto 31-3-1955. This licence imposed certain conditions which were to be fulfilled by the licensee, and in this appeal we are concerned with condition No. 9. The relevant provisions of condition No. 9 may be stated below:

'The explosives shall be manufactured in a tent or lightly constructed one-storeyed building kept and used only for the purpose of manufacture ...................'

In this particular case, the licenced premises consisted of three manufacturing sheds one storage shed, one ingredient shed and one drying platform. The charge against the respondent was that he manufactured or permitted to be manufactured fire works outside the manufacturing sheds, that is to say, at places where he was not authorised or licenced to manufacture explosives. It may be noted that the explosives with which we are concerned in this case were chiddias. It may be noted that the workers viz., Kusurn Lalitaprasad, Eukmini Gopal, Krishnabai Pandurang and Kirtibai Shankar were affixing paper to the inside bottoms of the containers which were ultimately to be used for making chiddias. They were doing this work not in the manufacturing sheds, but outside under a mangotree. The prosecution contends that the place where they were doing this work was not a place where the respondent was authorised to do the manufacturing process of making chiddias.

3. Upon the abovementioned facts, the question which arises for decision in this appeal is Whether what Kusum, Rukmini, Krishnabai and Kirtibai were doing viz., affixing of paper to the inside bottoms of the containers, was a manufacturing process for making chiddias. If it was a manufacturing process, then undoubtedly It was done at a place where it was not authorised to be done and the respondent would be guilty of the offence with which he was charged. On the other hand, if it was not a manufacturing process, then the charge against the respondent must fail.

4. Mr. Chandrachud, the learned Assistant Government Pleader, appearing for the State of Bombay in this appeal has contended that in order that chiddias might be made or manufactured, it was necessary and indispensable to do what Kusum and her co-workers were doing. As I have mentioned above, what Kusum arid her co workers were doing was the affixing of papers to the inside bottoms of the containers. Mr. Chandrachud says that this work was absolutely necessary in order that chiddias might be manufactured. Mr. Chandrachud says that if this work had not been done and if composition powder had been put in the containers to whose inside bottoms paper had not been affixed, the surface of the containers would have corroded. In other words, Mr. Chandrachuld's submission is that in order that chiddias might be made, in order that the surface of the containers might not corrode, in order that composition powder could be appropriately put in those containers. It was necessary for Kusum and her co-workers to affix paper to the inside bottoms of the containers. According to Mr. Chandrachud, there is no warrant for saying that until an explosive character is imparted to an article, the stage of the manufacture of an explosive is not reached. Mr. Chandrachud says this In order to counter an argument of Mr. Mistry on behalf of the respondent that the manufacturing process of an explosive does not commence until an explosive element is imported into the article. Mr. Chandrachud says that there is no warrant for such a proposition. According to Mr. Chandrachud, every item of work which is done, without the doing of which a fire-work cannot be manufactured, would be a part of a manufacturing process of the fire-work. In support of his submission Mr. Chandrachud has invited our attention to page 785 of Aiyar's Law Lexicon where the learned author has quoted Mr. Brande and said that 'manufacture' is a term employed to designate the changes or modifications made by art or industry in the form or substance of material articles with a view of rendering them capable of satisfying some want or desire of man. Mr. Chandrachud says that in this particular case the manufacturing process of chiddias consisted of the various changes or modifications which the workers in this factory were making by their art and industry with a view of rendering the ultimate product capable of being used as an explosive. Therefore, says Mr. Chandrachud, what Kusum and her co-workers were doing would fall within the meaning of the word 'manufacture'. Aiyar in his Law Lexicon at page 785 says further that 'manufacture' is the transforming or fashioning of raw materials into a change of form for use. Mr. Chandrachud says that what Kusum and her co-workers were doingin this case was the fashioning of the containers so that ultimately those containers might be used for turning them Into chiddias. In R. v. Wheeler (1819) 2 B Ald 345 , Chief Justice Abbott said that the word 'manufacture' was generally understood to denote either a thing made which was useful for its own sake and vendible as such, as a medicine, a stove, a telescope, and many others; or to mean an engine or instrument, or some part of an engine or instrument, to be employed either in the making of some previously known article, or in some other useful purpose as a stocking frame, or a steam engine for raising water from mines etc. etc. Mr. Chandrachud says that in this case the containers to whose inside bottoms Kusum and her co-workers were affixing paper were not useful for their own sake. They were parts of articles which were ultimately going to be turned into chiddias. So, says Mr. Chandrachud, the work which Kusum and her co-workers were doing would fall within the meaning assigned by learned Chief Justice Abott in B. v. Wheeler, (A), to the word 'manufacture'.

5. Our 'attention is next invited to the Oxford Dictionary at page 1203 where the word 'manufacture' is thus explained: The learned author says that 'to manufacture' means 'to work up material into forms suitable for use'. Mr. Chandrachud says that in this case the workers of the respondent's factory were affixing paper to the inside bottoms of the containers, so that the containers might be turned into forms suitable for use as Chiddias. Thus, according to Mr. Chandrachud, the work which was done by Kusum and her co-workers would fall within the meaning assigned by the Oxford Dictionary to the term 'manufacture'. Our attention is also invited to Strand's Judicial Dictionary, 3rd Edition, at page 1734 where the learned author has said that the expression 'to manufacture a thing' means 'to bring it into being'. Mr. Chandrachud relies upon this definition of the word 'manufacture' and contends that by affixing paper to the inside bottoms of the containers the workers in the respondent's factory were bringing into being articles, which when subjected to further processes were going to be turned into chiddias. Relying upon these authorities, Mr. Chandrachud has contended that the work which the employees of the respondent's factory were doing in this case under a mango tree, viz., the work of affixing paper to the inside bottoms of the containers would amount to a manufacturing process and that as the said manufacturing process was done at a place where the respondent was not authorised to have it done, the respondent was guilty of having committed an offence under Section 5, Sub-section (3) of the Explosives Act read with Rule 81 of the Explosives Rules.

6. In support of the point of view pressed by Mr. Chandrachud, he has invited our attention to an English decision in Guildford Corporation v. Brown 1915 1 KB 256 . In that case, the respondent had in his possession flock manufactured from rags which did not conform to the standard of cleanliness prescribed by Local Government Board Regulations. The flock was taken from the two old mattresses and the respondent intended to put the same flock, without any addition to or subtraction from it into new covers. It was held that the respondent had in his possession flock manufactured from rags intended to be used for the purpose of making an article of bedding within the meaning of Section 1, Sub-section (1) of the Rag Flock Act, 1911, and therefore he was liable to the penalty imposed by the sub-section. In the body of his Judgment, Mr. Justice Ridley said:

'The evidence shows that the respondent had flock in his possession intended to be used for the purpose of making an article of bedding. In my opinion the justices were therefore wrong in the conclusion they arrived at, and they ought to have convicted the respondent.'

Mr. Chandrachud appearing for the State of Bombay relies upon these observations of Mr. Justice Ridley, with which Mr. Justice Avory concurred, and contends that in this case also, the containers, to the inside bottoms of which the workers of the respondent's factory were affixing paper, were Intended to be used for the purpose of making chiddias. Therefore, says Mr. Chandrachud, the learned Magistrate ought not to have acquitted the respondent, but ought to have convicted him.

7. In short, Mr. Chandrachud's submission is that if different parts which are necessary for the purpose of making an explosive are made, whatever part is made or whatever work is done for making it amounts to a process of manufacturing an explosive. It is in this manner that Mr. Chandrachud submits that the process of manufacturing an explosive was done in this case by the respondent's workers at a place where the respondent was not authorised to have it done.

8. We have given a careful thought to these submissions of Mr. Chandrachud which, in our 'view, are weighty submissions. However, although there appears to be considerable force in these submissions, we must, in the circumstances of this case, reject these submissions and confirm the judgment of acquittal recorded by the learned Magistrate in favour of the respondent. It is obvious that a distinction must be drawn between the work of preparing containers for the purpose of storing them so that at some future date composition powder may be put into them for making an explosive and preparing containers for the purpose of immediately turning them into explosives by putting composition powder in them, in this particular case, it is to be noted that upon the licenced premises there was a Storage shed also. The purpose for which the storage shed existed upon the licenced premises was to store articles before they might be taken to the manufacturing sheds for manufacturing explosives out of them. Obviously some time would elapse before the containers which might be stored in the storage shed would be taken to the manufacturing sheds where composition powder would be put into them and chiddias would be made out of them. It is obvious that during such time as the containers would remain in the storage shed and until such time that they would be removed to the manufacturing sheds, no process of manufacturing an explosive could be said to have commenced in respect of those containers. The manufacturing process commences in manufacturing sheds. Therefore, until the containers were removed to the manufacturing sheds, the process of manufacturing chiddias could not be said to have started. Upon the evidence in this case it would appear that there were 1,07,000 containers weighing 1,070 lbs. which had already been prepared. It would thus appear that the work of preparing containers was being done in order to turn out containers in large quantities, so that those containers might be stored and taken out from the storage room as and when necessary for the purpose of makingchiddias out of them. In other words, the manufacturing process was to start later. It is quite conceivable that the number of containers to be prepared would depend upon the number of orders received by the respondent's factory for making chiddias. If a large number of orders was received by the respondent, he would naturally ask his workers to prepare a corresponding number of containers. It is clear from this that the work of preparing containers was merely a Preparatory stage, that is to say, preparatory to the stage of manufacturing process. It is conceivable that some orders might be subsequently cancelled and the containers which might already have been made might not be necessary to be used for making chiddias. Upon such a contingency arising, composition powder would not be put into those containers. Having regard to this aspect of the matter, the only conclusion to which we can come in this case would be that the manufacturing process of making chiddias would not start until the containers were removed from the storage room, were taken to the manufacturing sheds and composition powder was started to be put into them. That stage was not reached in this case. Even the stage of removing the containers from the storage shed had not been reached. The containers were lying beneath the mango tree and the workers were affixing paper to the inside bottoms of those containers, if we may take an analogy, in the case of a motor vehicle several parts are necessary to be made before a vehicle could be manufactured. For instance, it would be necessary to make an engine, a chassis, springs, mudguards, shock-absorbers and several other things. These things would be made in different places. It cannot be said that the people who are engaged in the making of those things are engaged in the work of manufacturing a motor car. These are all parts of a motor car. Until these parts are taken to the factory for being assembled and until the process of assembling starts, the process of manufacturing a motor car cannot be said to start. In like manner, until the containers, to the inside bottoms of which paper is affixed, are taken to the manufacturing sheds and until the work of putting composition powder into them commences, the process of manufacturing chiddias cannot be said to have commenced. In this connection, It would not be out Of place to refer to the evidence of the expert witness Mr. Phadnis whom the prosecution has examined. Mr. Phadnis has said that

'preparing composition powder is itself a process of manufacturing fire works and that every such process would only be performed in the three manufacturing sheds and nowhere else.'

We think it is clear from this evidence of the expert that what he meant by the expression 'every such process' was a manufacturing process. According to the evidence of the expert, therefore, the manufacturing process could only be done in the manufacturing sheds. In conjunction with this part of his evidence, we must read what he has stated in another part of his deposition and this is what he has stated there: 'The office premises were used for doing non-explosive work. They were also used for storing mud pots for anars.' Putting the above mentioned two parts of his evidence together, it would appear that what is done in the manufacturing sheds is a manufacturing process and what is done outside the manufacturing sheds is only non-explosive work. It would thus appear upon the evidence of the expert witness also -- and we are not unaware that this evidence is only opinion evidence that what was done by Kusum and her co-workers was non-explosive work and not a part of the manufacturing process. Mr. Chandrachud has relied upon a certain sentence which occurs in the evidence of this witness and that sentence reads thus : 'Even pasting paper discs, putting in fuses, etc., on chiddias would be a part of the manufacture of fire works'. It is clear, however, in the context of the entire evidence of this witness that what he means is that if these items of work are done in the manufacturing sheds themselves, then they would amount to a part of the process of manufacturing an explosive. This would be evident from the statement which this witness has made practically in the next breath, namely, 'the articles must contain composition powder'. If we turn to condition No. 1 of the licence which was given to the respondent, this is what it says: 'The maximum quantity of explosives in the whole factory at one time including those in the process of manufacture as well as those stored on the licenced premises shall not, in the case of gun powder, exceed 200 lbs.' From this limitation put upon the quantity of the gun powder to be kept in the whole factory at one time, it is clear that the number of containers which should legitimately find place inside the manufacturing sheds should only be such that when the composition powder is put into them, the powder would not exceed 200 lbs. It would, therefore, be evident that the work of preparing as many as 1,07,000 containers could not be a part of a process of manufacturing explosives, to wit chiddias. It is for these reasons that we must uphold the learned. Advocate Mr. Mistry's contention that in this case the work which Kusum and her co-workers were doing was only the preparatory work, that is to say, the work preparatory to the stage when manufacturing process would start. Mr. Mistry is right that a manufacturing process would not start until the containers, to the inside bottoms of which paper was affixed, were removed from the storage shed to the manufacturing sheds for the purpose of putting composition powder in them.

9. The result, therefore, is that in this case the work in which Kusum and her co-workers were engaged was not a part of a process of manufacturing chiddias. That being so, the respondent could not be said to have contravened the provisions of condition No. 9 of the licence which was given to him. In our view, the order of acquittal passed by the learned Magistrate in favour of the respondent was a correct order,

10. The appeal filed by the State, therefore, fails and is dismissed.

11. Appeal dismissed.


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