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State of U.P. Vs. Manmohan Nauitayal - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1972CriLJ1428
AppellantState of U.P.
RespondentManmohan Nauitayal
Cases ReferredD. Masanda and Co. v. Commr. of Sales Tax.
Excerpt:
- - now it is well known that photography is the art and science of making light images formed in a camera into a permanent picture......to the establishment of the accused.6. under section 5 of the act it is provided that no shop or commercial establishment not being a shop or commercial establishment mentioned in schedule ii. shall, on any day, open earlier, or close later than such hour as may be prescribed in this behalf. rule 3 of the rules framed under section 40 of the act provides that no employer shall keep any shop not mentioned in schedule ii of the act, open after 8.00 p.m. schedule ii enumerates the shops and commercial establishment to which the provisions of sections 5 and 8 do not apply. under sub-section (3) of section 3 of the act the state government is empowered by notification in the gazette to exempt any shop or commercial establishment or any class of shops or commercial establishments.....
Judgment:

K.N. Seth, J.

1. The State of U. P. has preferred this appeal against the order of acquittal passed by the Civil and Sessions Judge, Meerut setting aside in appeal the order of conviction recorded by the City Magistrate against the present respondent under Section 35 of the Uttar Pradesh Dookan Aur Vanijya Adhisthan Adhiniyam, 1962 U. P. Act No. XXVI of 1962 Hereinafter referred to as the Act.

2. The respondent is a photographer and carries on the business of photography in his studio in a part of his shop. On May 23 1968. the Inspector M. P. Singh visited his shop at 8.15 p.m. and found that he was busy in his studio taking photographs of three or four persons. On a complaint filed by the Inspector the respondent was charged for contravention of Section 5 of the Act read with Rule 3 of the Uttar Pradesh Dookan Aur Vanijya Adhisthan Niyamavali. 1963 hereinafter referred to as the Rules.

3. The defence of the respondent was that his establishment was engaged in manufacturing process and was exempt from the operation of the provisions of Section 5 of the Act and Rule 3 of the Rules. It was also pleaded that the commercial establishment of the respondent was not open on the said date and time and the business was also closed and the Inspector visited the establishment when he was comming out of it. and in any case, the premises were not open for business.

4. The learned City Magistrate who tried the case summarily found the respondent guilty holding that he was not connected with the manufacturing process and his plea that the Act was not applicable to him was untenable. In his view the work of taking photographs could not be termed manufacturing process. The respondent was, however let off with admonition.

5. Against the order of the learned Magistrate dated June 27. 1968 a revision was preferred in the court of the Sessions Judge, Meerut. The learned Sessions Judge allowed it to be converted into an appeal after giving the benefit of Section 5 of the Limitation Act. The appeal was allowed holding that the photography involved manufacturing processes and the Act and the Rules were not applicable to the establishment of the accused.

6. Under Section 5 of the Act it is provided that no shop or commercial establishment not being a shop or commercial establishment mentioned in Schedule II. shall, on any day, open earlier, or close later than such hour as may be prescribed in this behalf. Rule 3 of the Rules framed under Section 40 of the Act provides that no employer shall keep any shop not mentioned in Schedule II of the Act, open after 8.00 p.m. Schedule II enumerates the shops and commercial establishment to which the provisions of Sections 5 and 8 do not apply. Under Sub-section (3) of Section 3 of the Act the State Government is empowered by notification in the gazette to exempt any shop or commercial establishment or any class of shops or commercial establishments from the operation of any of the provisions of the Act. Under Sub-section (3) of Section 5 the power is conferred on the State Govt. to add to or remove from Schedule II any class of shops or commercial establishment. The State Government issued a notification No. 2919 (LL) (V)/XXXVI B-498(LL)-62 published in U. P. Gazette dated May 23, 1963 at page 1008 which runs as follows:

In exercise of the powers conferred by Sub-section (3) of Section 3 of the U. P. Dookan Aur Vanijya Adhisthan Adhiniyam. 1962 U. P. Act No. XXVI of 1962. the Governor of Uttar Pradesh is pleased to exempt all commercial establishments which are engaged in manufacturing processes from the operation of the provision of Section 5 of the said Adhiniyam read with Rule 3 of the U. P. Dookan Aur Vanijya Adhisthan Nivamayali, 1963 for the purposes of manufacturing work only.

The plea of the respondent is that the provisions of Section 5 of the Act and Rule 3 of the Rules are not applicable to his establishment in view of the aforesaid notification.

7. The question for consideration is whether the commercial establishment of the respondent is engaged in manufacturing process. The words 'manufacture' or 'manufacturing process' have not been defined under the Act and we have to fall back upon the dictionary meaning of these words or on interpretation of these words by Courts in dealing with other Acts where such words have been used or defined.

8. The Century Dictionary gives the following meaning to the word 'manufacture':

The production of articles for use from raw or prepared materials, by giving these materials new forms, qualities properties or combinations whether by hand labour or by machinery. Another Dictionary meaning of manufacture' is 'transform or fashion raw materials into a changed form for use. In State of Bihar v. Chrestien Mica Industries Ltd. : AIR1957Pat184 while interpreting the word 'manufacture' it was observed:The essential point to remember is that something is brought into existence which is different from that originally existing in the sense that the thing produced is by itself a commercial commodity and is capable as such of being sold or supplied. It is not necessary that the stuff or material of the original article must lose its character or identity or it should become transformed in its basic or essential properties.' In G. R. Kulkarni v. State 1957 8 STC 294 : AIR 1957 Madh Pra 45 dealing with the question whether breaking boulders into qitti was a process of manufacture it was observed that 'the essence of manufacture is the changing of one object into another for the purpose of making it marketable.

9. In order to determine whether the establishment of the respondent is engaged in a manufacturing process, the nature of the work done by a photographer has to be taken into consideration. The method of working of a photographer has been pointed out, in D. Masanda and Co. v. Commr. of Sales Tax. AIR 1957 Madh Pra 76 as follows:

Now it is well known that photography is the art and science of making light images formed in a camera into a permanent picture. The chief method is based upon the change which occurs in many silver compounds when light falls on them. The various stages in photography are: (i) taking the photograph with the aid of a camera: (ii) developing and fixing negatives: (ii) washing the negatives; (iv) proof-prints: (v) re-touching negatives (vi) final retouching: (vii) printing: (viii) development and fixing of prints; (ix) touching of prints: (x) toning of prints: and (xi) mounting of photographs. The necessary materials and equipment consist of the camera and equipment used in connection therewith: films or plates: the chemicals used in developing and fixing the films or plates; the retouching medium, the equipment and material such as printing paper, chemicals etc. used in the printing process: and the mounts. Leaving aside the skill required in exposure developing of films and negatives, retouching of negatives and printing and the manual labour involved in washing the negatives and plates; a photograph is thus essentially the resultant effect of certain chemicals and materials used in a particular manner with the aid of certain equipments. Photographs are thus goods produced from certain materials with the aid of certain instruments and by manual labour.

10. It is therefore, obvious that when a photographer is engaged in taking photographs of his customers he is engaged in a manufacturing process and his establishment would be an establishment engaged in a manufacturing process. Such an establishment would be exempt from the operation of the provisions of Section 5 of the Act and Rule 3 of the Rules. The charge levelled against the respondent was that, he was taking photographs of some persons when the Inspector visited his shop at 8.15 p.m. As he was engaged in a manufacturing process the rule relating to the closure of the establishment by 8.00 p.m. was inapplicable to his establishment. The view taken by the learned Sessions Judge in acquitting the respondent is fully justified.

11. The appeal has no merits and is accordingly dismissed.


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