Narayana Pai, J.
1. This appeal against an order of acquittal arises out of a prosecution under the Factories Act.
2. The circumstances out of which the prosecution arose relate to a pit inside the factory in question, 12 feet long, 5 feet wide the 4 feet 10 inches deep, into which boiling soap used to get collected in the course of the manufacturing processes adopted and followed in the factory. It appears that it was necessary to empty the hot soap stock collected in the pit from time to time or at certain intervals so as to provide accommodation for further soap coming down from the plant. It appears that on a prior occasion, one of the workers in the factory had fallen into the hot soap when engaged in emptying the contents of the pit with a bucket. On that occasion, a note was made by the Inspector of Factories having jurisdiction over the factory to the effect that the accident could have been avoided had a proper and safe method been employed for removing the soap from the pit. Subsequent to these observations, steps were taken by the factory for complying with the observations of the Inspector. These steps were twofold; a power-driven pump was installed for emptying the contents of the pit without employing any manual labour, and the pit itself was got covered with 14 planks, each of a width of about 1 foot 11 inches.
3. It appears, however, from the evidence that, at any rate, when the newly-installed pump was not in working order, it did become necessary to employ manual labour to empty the pit, i.e., by a worker actually dipping a bucket into the contents of the pit and lifting it up and pouring the same either by himself or through the assistance of other workers into empty barrels.
4. The prosecution, out of which this appeal arises came to be instituted as a result of another accident which took place on the night of January 13, 1962. A worker called Chandrasekhar employed in emptying the contents of the pit fell into it, sustained severe injuries all over his body and died on the following day.
5. The clear effect of the evidence, which does not appear to have been disbelieved by the trial magistrate, is that for the purpose of enabling the worker to remove the soap from the pit, one plank at each end had been removed, which means that at each end of the pit, one plank at each end had been removed, which means that at each end of the pit there was an opening there was an opening 1 1/2 to 2 feet wide and 5 feet long. It is through one of such openings that Chandrasekhar aforesaid fell into the pit.
6. It is also in evidence that on the day of occurrence the pump installed for emptying the contents of the pit was not in working order, and that it did become necessary to employ manual labour to empty the contents of the pit.
7. We should also add a fact which is not denied that the pit is not on, along or across a passage normally used for walking up and down but is at an edge of a room touching a wall.
8. The offence which the respondent is said to have committed is a contravention of S. 33 of the Factories Act of 1948, which inter alia provides that in every factory every pit or opening in the ground or in the floor which, by reason of its depth, situation, construction or contents, is or may be a source of danger, shall be either securely covered or securely fenced.
9. The question for consideration is whether the magistrate has committed an error in coming to the conclusion that, in the circumstances mentioned above, there had not been a contravention of S. 33(1) of the Act.
10. From the language employed in the section and in the light of the obvious purpose it is intended to subserve, it appears to us to be clear that covering or fencing a pit securely means covering or fencing it in such a way as to see that it ceases to be a source of danger to those who have occasion to go near there.
11. As already stated, this pit is not located on, along or across any pathway or passage. If and when the power-driven pump is available for emptying its contents, it is not necessary for any one to go near the pit. Having regard to the effect of the evidence that the pit used to be closed wholly with planks, there would also be no danger for any one who may go near the pit when it is so covered with planks. When however, the pump is not in working order, it becomes necessary to employ manual labour to empty the contents of the pit. It is clear, therefore, that the pit would be a source of danger only when manual labour is employed to empty its contents. Hence, the respondent could claim that he has securely covered it only if the steps taken by him for the said purpose are such that a worker employed to empty the contents by manual labour is not exposed to the danger of falling into the hot soap.
12. The method adopted by the respondent to cover the pit is such that it has become necessary to have an opening at least 1 1/2 feet wide and 5 feet long to enable to workers to dip a bucket into the contents and lift it out. That an opening of that size is an undoubted source of danger in this case is clear from three circumstances :
(1) that the size of the opening is sufficient to admit an adult person to fall into the pit,
(2) that the contents of the pit or boiling soap or soap at such temperature as is sufficient to cause dangerous burns, and
(3) that there is a clear possibility of the edges of the opening becoming slippery by the contents falling near about the edges.
13. From what is stated above, it follows that the steps taken were clearly insufficient to meet the one and only factor which is the source of danger in relation to this pit.
14. In the result, the order of acquittal has to be and is hereby set aside.
15. We do not, however, consider that anything like a heavy sentence is called for, especially in view of the fact that no particular negligence or carelessness in the matter of working the factory is attributed to the respondent. The contravention arises out of the inherent danger in relation to the pit and a bona fide omission to appreciate the inadequacy of security measures taken by the respondent.
16. We, therefore, convict the respondent of the offence of having contravened Sub-section (1) of S. 33 of the Factories Act, punishable under S. 92 of the same Act, and Sentence him to pay a fine of Rs. 50.