Section 91 of the Factories Act 1948 - Power to Take Samples
Section 91 of the Factories Act, 1948 formerly prescribed how a factory Inspector could take samples of substances used or intended to be used in a factory, how the sample had to be divided and sealed, and how the Government Analyst's report could be used in proceedings.
- An Inspector could take a sufficient sample during normal working hours after informing the occupier, manager, or person in charge.
- The power applied where the Inspector believed the use contravened the Act or rules, or considered the substance likely to injure workers or their health.
- The sample was ordinarily divided into three sealed and marked portions.
- One portion went to the informed person, one to a Government Analyst, and one was retained for possible court proceedings.
- A Government Analyst's report could be used as evidence in proceedings concerning the substance.
Meaning and purpose of Section 91
The provision created a controlled evidentiary procedure for sampling substances found in a factory. Its purpose was not merely to permit collection of material. It also prescribed safeguards for identification, sealing, division, analysis, and preservation of the sample so that the material could be relied upon if legal proceedings followed.
For this provision, the expression "Inspector" referred to an Inspector appointed under the Factories Act framework. The "occupier" was the person having ultimate control over the affairs of the factory, subject to the statutory rules contained in section 2 of the Act. A "Government Analyst" was the government analyst to whom the second portion of a sample was sent for analysis and report under section 91.
Text of Section 91 - Power to take samples
(1) An Inspector may at any time during the normal working hours of a factory, after informing the occupier or manager of the factory or other person for the time being purporting to be in charge of the factory, take in the manner hereinafter provided a sufficient sample of any substances used or intended to be used in the factory, such use being--
(a) in the belief of the Inspector in contravention of any of the provisions of this Act or the rules made thereunder, or
(b) in the opinion of the Inspector likely to cause bodily injury to, or injury to the health of, workers in the factory.
(2) Where the Inspector takes a sample under sub-section (1), he shall, in the presence of the person informed under that sub-section unless such person wilfully absents himself, divide the sample into three portions and effectively seal and suitably mark them, and shall permit such person to add his own seal and mark thereto.
(3) The person informed as aforesaid shall, if the Inspector so requires, provide the appliances for dividing, sealing and marking the sample taken under this section.
(4) The Inspector shall--
(a) forthwith give one portion of the sample to the person informed under sub-section (1);
(b) forthwith send the second portion to a Government Analyst for analysis and report thereon;
(c) retain the third portion for production to the Court before which proceedings, if any, are instituted in respect of the substance.
(5) Any document purporting to be a report under the hand of any Government Analyst upon any substance submitted to him for analysis and report under this section, may be used as evidence in any proceedings instituted in respect of the substance.
How the sampling procedure worked
1. Information before sampling
The Inspector could act during normal working hours, but first had to inform the occupier, manager, or other person apparently in charge of the factory.
2. Grounds for taking the sample
The provision covered a substance whose use was believed to contravene the Act or rules, or which in the Inspector's opinion was likely to cause bodily injury or injury to workers' health.
3. Three portions, sealing and marking
The sample was to be divided into three portions in the presence of the informed person unless that person wilfully absented himself. Each portion had to be effectively sealed and suitably marked. The informed person was also entitled to add his own seal and mark.
4. Distribution of the portions
The first portion was given to the informed person. The second was sent to a Government Analyst for analysis and report. The third was retained for production before the court if proceedings were instituted.
5. Evidentiary use of the analyst's report
Sub-section (5) permitted a document purporting to be the Government Analyst's report on the submitted substance to be used as evidence in proceedings concerning that substance.
Current law after repeal of the Factories Act 1948
The Occupational Safety, Health and Working Conditions Code, 2020 is now the central statutory framework replacing the Factories Act, 1948. Section 143 of the Code provides for repeal of the Factories Act upon commencement of the Code.
Under the current framework, section 35 deals with powers of Inspector-cum-Facilitators. Section 35(1)(x) authorizes an Inspector-cum-Facilitator to take samples of articles or substances found in an establishment or premises into which the officer has power to enter, as well as samples of air in or near the establishment or premises, in the manner prescribed by the appropriate Government.
Accordingly, Section 91 of the Factories Act should not be presented as the presently operative sampling provision. It remains useful for understanding the former statutory procedure and for historical or saved matters, while current compliance should be checked under the OSH Code, applicable rules, regulations, notifications, and State-specific requirements.
Official legal sources
Factories Act, 1948: India Code - official text of the Factories Act, 1948
Current law: India Code - Occupational Safety, Health and Working Conditions Code, 2020
This page is an informational legal reference. For a current compliance issue, also verify the latest rules, regulations, notifications, and applicable State requirements.