THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.993 of 2007 02-09-2014 BETWEEN:
ESI Corporation …..Appellant/Complainant AND Sri T. Linga Reddy And another …..Respondents THIS COURT MADE THE FOLLOWING JUDGMENT:
THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.993 of 2007 JUDGMENT:
The Criminal Appeal is preferred by the appellant/complainant challenging the Judgment, dated 06.02.2007, in P.C. No.29 of 2005 passed by the Chairman, Industrial Tribunal I – Dealing with the cases under the ESI Act, Hyderabad, whereby the learned Judge acquitted the accused under Sections 85(a), 85(e) and 85(g) of the Employees’ State Insurance Act.
The case of the prosecution is as follows:-
That the accused is the proprietor of M/s. Bharat Pathological Laboratory and the complainant is the Employees’ State Insurance Corporation. Alleging that the accused failed to pay the employees’ share of contribution as well as the employer’s share of contribution for the employees employed in his organization, show cause notices dated 31.01.2005 and 02.03.2005 were issued calling upon him as to why he should not be prosecuted for non-compliance with the provisions of the Employees State Insurance Act, and that the said show cause notices were returned undelivered. The complainant issued assessment order, dated 22.03.2005, calling upon the accused to pay the contributions, which he is liable to pay with interest. It is also alleged that the accused has failed to submit Return of Contribution in Form-6 in quadruplicate to the ESI Corporation. Hence, the complainant Corporation filed P.C.No.29 of 2005 against the accused for the offences under Sections 85(a), 85(e) and 85(g) of the Employees State Insurance Act.
On behalf of the prosecution, P.Ws.1 and 2 were examined and Exs.P.1 to P.21 were marked. On behalf of the accused, D.W.1 was examined and Exs.D.1 to D.6 were marked.
On appreciation of oral and documentary evidence, the trial Court acquitted the accused for the offences under Sections 85(a), 85 (e) and 85(g) of the ESI Act, observing as under (paras 8 and 9).
In the decision of the High Court of Andhra Pradesh in 2006 (11) LLJ 443, it was observed as follows:
The drawing of blood sample for diagnosis did not include treating or adopting it with a view to its use, sale etc. In the absence of further use of blood as ‘drug’ by the appellants, the process resorted to by them would not amount to any ‘manufacturing process’ as defined in Sec.2 (k) of the ESI Act.
It is an admitted fact that no notification was issued by the Central Government as envisaged U/s. 1 (5) of the ESI Act, intimating the appellants that they will come within the purview of the Act.
In the instant case, as per the evidence of P.W.1 and Ex.P.1, visit note, the accused is dealing with storage and analysis and thereby it is a manufacturing process. P.W.1 did not say anything with regard to the Blood Bank and its functions i.e., with regard to the sale of the blood as a drug after its storage. Ex.P.1, visit note, is also silent about it. So, the prosecution not proved that the blood was taking with a view to its use, sale etc., and further use of the sale as a ‘drug’.
Heard both sides and perused the entire material available on record.
On perusing the entire evidence and hearing the arguments, this Court is of the view that the trial Court has considered the evidence in proper perspective and the reasoning given above while acquitting the accused is also in accordance with law. The Judgment of the trial Court does not suffer any perverse findings and the acquittal recorded by the trial Court needs no interference by this Court. The criminal appeal fails and is liable to be dismissed.
The Criminal Appeal is accordingly dismissed. Miscellaneous applications, if any pending in this appeal, shall stand dismissed.
JUSTICE RAJA ELANGO 02.09.2014 pln