1. One is an appeal by the State of Maharashtra and the second is the appeal by the Municipal Committee, Akola. Both are aggrieved by an order of acquittal passed by the Judicial Magistrate, First Class, Akola.
2. The accused in this case was charged with an offence punishable under Section 18 read with Section 52(b) of the Bombay Shops and Establishments Act, 1948 (hereinafter called 'Shops Act.'). It was alleged that he was found on or about July 5, 1967 to have kept his shop open in spite of that day being a weekly closed day. The Inspector of the Shops and Establishments of the Municipal Committee, Akola, visited the brass shop of the accused at Tilak Road, Akola, on that day. He found the accused who is the owner of the shop present and working there at about 9.55 P.M. The Shop Inspector, therefore, after the necessary sanction prosecuted the accused.
3. The learned Magistrate relied upon the decisions in State v. Hiralal Surajkaran (1956) 68 Bom. L.R. 481 : s.c. A.I.R. Bom. 473 and Mohanlal v. Corporation of the City of Nagpur (1966) Criminal Revision Application No. 257 of 1065, decided by Paranjape J., on January 10, 1966 (Unrep.):  Mh. L.J. Note 3 and, therefore, was of the view that the owners are exempted from the operation of the provisions of Section 18 of the Shops Act. According to him, therefore, the accused being the employer could render service on a weekly holiday for his shop and that he was exempted. He, therefore, acquitted him of the offence punishable under Section 18 read with Section 52 of the Shops Act. This order of acquittal is challenged here by the State as well as by the Municipal Committee, Akola.
4. Section 18 of the Shops Act deals with the holiday in a week in shops and commercial establishments. Under it every shop and commercial establishment shall remain closed on one day of the week, except where the day is fixed under the provisions of Sub-section (1B); the employer has to prepare a calendar or list of such closed days at the beginning of the year, notify such calendar or list to the Inspector and specify it in a notice prominently displayed in a conspicuous place in the shop or commercial establishment. It appears that the accused did notify a closed day and the accused was found to be working on that closed day of the week. Under Section 52(b) of the Shops Act, if in any establishment there is any contravention of any of the provisions of Section 18 and some other sections mentioned there, the employer and the manager shall on conviction, each be punished with fine which shall not be less than twenty-five rupees. Therefore, if either the employer or the manager does not keep his shop or commercial establishment closed on the weekly closed day he is penalised under Section 52 of the Act.
5. Section 4 of the Shops Act deals with the exemption. Under it notwithstanding anything contained in the Shops Act, the provisions of the said Act mentioned in the third column of Schedule II shall not apply to the establishments, employees and other persons mentioned against them in the second column of the said Schedule. The State Government is allowed by a notification published in the Official Gazette to add, omit or alter any of the entries in the said Schedule. We are here concerned with entry No. 17 in the II Schedule. Entry No. 17 was added along with entries Nos. 18, 19, 20 and 21 by G.N., Lab. D. No. 8/48-III, dated April 14, 1949. Under this entry, the employers of commercial establishment so far as concerns their own attendance and the attendance of the staff are exempted from Section 18. Therefore, the exemption was only to the employers of commercial establishments and not to the shops. 'Commercial Establishment' is denned in Section 2(4) of the Shops Act and 'shop' is defined in Section 2(27) of the Shops Act, Commercial Establishment, therefore, is quite different to a shop. What was exempted by entry No. 17 in Schedule II was 'Commercial Establishment' and not 'Shop.' We are here concerned not with a commercial establishment but with the shop of the accused. He had a brass shop which he had kept open on a closed weekly holiday. Although entry No. 17 and a few other entries were added on April 14, 1949 that entry No. 17 was later on deleted by G.N.I. & L. D. No. BSE, 2067-B-5452-Lab. III dated January 9, 1969. Therefore, by this deletion neither the employers of commercial establishments nor the employers of the shops are at present exempted from the provisions of either Section 13 or Section 18 of the Shops Act. We are, however, concerned with an offence of July 5, 1967. On that day, entry No. 17 was in existence. We have seen, that this entry No. 17 is only as regards the employers of commercial establishment and not as regards the employers of the shop. 'The Shop' and 'The commercial establishment' are different.
6. The learned Magistrate when he relied on State v. Hiralal Surajkaran as well as Mohanlal v. Corporation of the City of Nagpur thought that that decision was not only as regards shop but also commercial establishment. He has observed that the employer or his family members can render services on weekly holiday at the shop or commercial establishment, in his judgment. Evidently, he is under the impression that entry No. 17 of Schedule II not only exempts the employer of a shop but also the employer of the commercial establishment. That impression, however, is not correct. Both the decisions cited above, viz., State v. Hiralal Surajkaran as well as Mohanlal v. Corporation of the City of Nagpur deal not with a 'Shop' but with a 'commercial establishment'. The learned Magistrate, therefore, was in error by misreading the decisions above cited.
7. The order of acquittal passed by the learned Magistrate, therefore, is erroneous and illegal. I, therefore, set side the order of acquittal passed by the learned Magistrate and convict the accused for the offence punishable under Section 18 read with Section 52 of the Bombay Shops and Establishments Act, 1948 and sentence him to pay a fine of Rs. 25 or in default to suffer two weeks simple imprisonment. The appeals are thus allowed.