A.N. Banerjee, J.@mdashThis appeal is directed against an order of acquittal u/s 245(1) of the Code of Criminal Procedure. It appears that the
Respondent Jaidev Pal and two others were tried by the learned Magistrate in respect of an offence u/s 21(1) of the West Bengal Shops and
Establishments Act, 1963, for having failed to get the shop registered under the Act.
2. The prosecution case in brief was that the accused persons have their oil shop at 113A Raja Dinendra Street, Calcutta, under the name of
Jaidev Oil Mill. On December 22, 1970, an Inspector of Shops and Establishments visited the shop but the accused failed to produce registration
certificate and other documents.
3. The defence was that the premises were used for manufacturing oil and that the Jaidev Oil Mill was registered as a factory under the Factories
Act and that all the employees were governed under that Act. The learned Magistrate found that the provision of the Shops and Establishments
Act, 1963, did not apply to the clerical establishment of the factory which was already governed by the Factories Act, 1948. Accordingly, he
acquitted the accused. Mr. Palit, learned Advocate appearing for the Appellant, submitted that the learned Magistrate was wrong in acquitting the
accused persons inasmuch as the definition of ''commercial establishment'' as given in Section 2(2) of the West Bengal Shops and Establishments
Act, 1963, included clerical department of a factory within the meaning of ''commercial establishment'' and that, as such, the learned Magistrate
went wrong in thinking that the clerical department of a factory registered under the Factories Act would not be governed by the West Bengal
Shops and Establishments Act, 1963. Mr. Kumar, learned Advocate appearing for the Respondents, submitted that the learned Magistrate was
justified in acquitting the accused persons first because the prosecution failed to establish that there was am clerical m department in the factory
concerned and secondly, because all the workers of a factory would be governed by the Factories Act.
4. Having heard the learned Advocates of the respective parties and on a consideration of the materials before me I see no reason to interfere with
the order of acquittal as passed by the learned Presidency Magistrate, Sixteenth Court, Calcutta. In doing so I want to make it clear that the
learned Magistrate was wrong in thinking that there could be no clerical department of a factory registered under the Factories Act to come within
the meaning of ''commercial establishment'' as given in Section 2(2) of the West Bengal Shops and Establishments Act, 1963. The views as
expressed by the learned Magistrate will mean that the definition of ''commercial establishment'' as given in the aforesaid Act, is meaningless and
nugatory. But, in the present case, it was correctly pointed out by the learned Magistrate that the only witness examined on the side of the
prosecution, namely P.W. 1, who was also the complainant, stated that he did not see any clerical department in the Jaidev Oil Mill. On the basis
of such evidence it cannot be urged that the prosecution could establish the fact that there was any clerical department inside the premises of Jaidev
Oil Mill so as to bring such department within the meaning of ''commercial establishment'' as given in the West Bengal Shops and Establishments
Act, 1963. Accordingly, the accused persons were rightly acquitted by the learned Magistrate.
5. In the result, the appeal is dismissed.