CR.A/434/1999 of K R UPADHYAY Vs M/S PRISM PIGMENTS AND COLOURSPVT LTD. on 29 December 2008

ORAL JUDGMENT :

1. The appellant - Gujarat Pollution Control Board has preferred the present appeal u/s 378 of the Code of Criminal Procedure, 1973 and challenged the judgment and order of acquittal rendered on 3-4-1998 by learned Judicial Magistrate, First Class, Ankleshwar in Criminal Case No. 1755 of 1989 acquitting accused respondents No. 1 to 4 for the offence punishable u/ss 24. 25 read with Section 47, 43 and 44 of the Water (Prevention and Control of Pollution) Act, 1974 (hereinafter referred to as “the Act”).

2. According to the prosecution case, accused No. 1 is Manger of the Company and accused No. 2 to 4 are the Directors of the company and are responsible for management of the company. The accused were engaged in manufacturing of cloth. The accused company discharges trade effluent into the stream leading to a substantial aggravation of pollution in contravention of consent order and committed offences punishable u/ss 43 and 44 of the Act.

3. On the basis of complaint filed by Mr. K.R. Upadhayay on behalf of Gujarat Pollution Control Board after considering the evidence, the learned Magistrate framed charge for the offences punishable u/s 24, 25, 43, 44 and 47 of the Act against the accused. The accused pleaded not guilty to the charge and claimed to be tried. Hence the prosecution adduced evidence.

4. On completion of recording of evidence, the learned Magistrate explained to the accused the incriminating circumstances appearing against them in the evidence. The accused in their further statement recorded u/s 313 of the Criminal Procedure Code, 1973 stated that they have not committed the offence and false case is foisted upon them.

5. After hearing learned A.P.P. and the learned advocate for the accused, the learned Judicial Magistrate, First Class, Ankleswhar acquitted the accused giving them benefit of doubt. Being aggrieved by the said decision, Gujarat Pollution Control Board has preferred this appeal.

6. I have heard learned advocate Mr. Sunil Mehta for the appellant and learned A.P.P. Ms. Panchal at length and in great detail. I have also perused the impugned judgment.

7. It appears from the impugned judgment that accused have been acquitted on the ground that the procedure prescribed for collection of samples was not followed.

8. Section 21 of the Act provides for the procedure to be followed in connection with taking of samples for the purpose of analysis. It provides as under :

“Section 21 : Power to take samples of effluents and procedure to be followed in connection therewith : (1) A State Board or any officer empowered by it in this behalf shall have power to take for the purpose of analysis samples of water from any stream or well or samples of any sewage or trade effluent which is passing from any plant or vessel or from or over any place into any such stream or well.

(2) The result of any analysis of a sample of any sewage or trade effluent taken under sub-section (1) shall not be admissible in evidence in any legal proceedings unless the provisions of sub-sections (3), (4) and (5) are complied with.any sewage or trade effluent taken under sub-section (1) shall not be admissible in evidence in any legal proceedings unless the provisions of sub-sections (3), (4) and (5) are complied with.

(3) Subject to the provisions of sub-sections (4) and (5), when a sample (composite or otherwise as may be warranted by the process used) of any sewage or trade effluent is taken for analysis under sub-section (1), the person taking the sample shall,-(4) and (5), when a sample (composite or otherwise as may be warranted by the process used) of any sewage or trade effluent is taken for analysis under sub-section (1), the person taking the sample shall,- (a)serve on the person in charge of, or having control over, the plant or vessel or in control over, the plant or vessel or in occupation of the place (which person is hereinafter referred to as the occupier) or any agent of such occupier, a notice then and there in such form as may be prescribed of his intention to have it so analysed; (b)in the presence of the occupier or his agent, divide the sample into two parts;agent, divide the sample into two parts;

(c) cause each part to be placed in a container which shall be marked and sealed and shall also be signed both by the person taking the sample and the occupier or his agent;container which shall be marked and sealed and shall also be signed both by the person taking the sample and the occupier or his agent; (d)send one container forthwith,-

(i) in a case where such sample is taken from any area situated in a Union Territory, to the laboratoryfrom any area situated in a Union Territory, to the laboratory established or recognised by the Central Board under Section 16; and Central Board under Section 16; and

(ii) in any other case, to the laboratory established or recognised by the State Board under section 17;established or recognised by the State Board under section 17; (e)on the request of the occupier or his agent, send the second container,-send the second container,-

(i) in a case where such sample is taken from any area situated in a Union Territory,tothelaboratoryestablished or specified under sub-section (1) of Section 51; and from any area situated in a Union Territory,tothelaboratoryestablished or specified under sub-section (1) of Section 51; and

(ii) in any other case, to the laboratory established or specified under sub-section (1) of Section 52.established or specified under sub-section (1) of Section 52.

(4) When a sample of any sewage or trade affluent is taken for analysis under sub-section (1) and the person taking sample serves on the occupier or his agent, a notice under clause (a) of sub-section (3) and the occupier or his agent willfully absents himself, then,-affluent is taken for analysis under sub-section (1) and the person taking sample serves on the occupier or his agent, a notice under clause (a) of sub-section (3) and the occupier or his agent willfully absents himself, then,- (a)the sample so taken shall be placed in a container which shall be marked and sealed and shall also be signed by the person taking the sample and the same shall be sent forthwith by such person for analysis to the laboratory referred to in sub-clause (i) or sub-clause (ii), as the case may be or clause (e) of sub-section (3) and such person shall inform the Government analyst appointed under sub-section (1) or sub-section (2), as the case may be, of section 53, in writing about the willful absence of the occupier or his agent; anda container which shall be marked and sealed and shall also be signed by the person taking the sample and the same shall be sent forthwith by such person for analysis to the laboratory referred to in sub-clause (i) or sub-clause (ii), as the case may be or clause (e) of sub-section (3) and such person shall inform the Government analyst appointed under sub-section (1) or sub-section (2), as the case may be, of section 53, in writing about the willful absence of the occupier or his agent; and (b)the cost incurred in getting such sample analysed shall be payable by the occupier or his agent an in case of default of such payment, the same shall sample analysed shall be payable by the occupier or his agent an in case of default of such payment, the same shall be recoverable from the occupier or his agent, as the case may be, as an arrear of land revenue or of public demand:

Provided that no such recovery shall be made unless the occupier or, as the case may be, his agent has been given a reasonable opportunity of being heard in the matter.

(5) When a sample of any sewage or trade effluent is taken for analysis under sub-effluent is taken for analysis under sub- section (1) and the person taking the sample serves on the occupier or his agent a notice under clause (a) of sub-section (3) and the occupier or his agent who is present at the time of taking the sample does not make a request for dividing the sample into two parts as provided in clause (b) of sub-section (3), then, the sample so taken shall be placed in a container which shall be marked and sealed and shall also be signed by the person taking the sample and the same shall be sent forthwith by such person for analysis to thelaboratory referred to in sub-clause (i) or sub-clause (ii), as the case may be, of clause (d) of sub-section (3).

CR.A/43419/1999

9. Rule 27 of the Gujarat Water (Prevention and Control of Pollution) Rules 1976 (hereinafter referred to 'the Rules, 1976”) provides the procedure for submitting samples to the State Water Laboratory.

10. The evidence of P.W. 2 Natverlal Laxmidas Kansagara Exh. 82 indicates that only one sample was taken for the purpose of analysis and there is no evidence with regard to method of preservation used. It also indicates that there is no evidence to indicate that the sample was collected in polythene container. The evidence of this witness does not clearly indicate as to what was the capacity of the container in which the sample of effluent was collected.

11. In the decision of Dahyabhai Kalubhai Solanki V. Devine Intermediates & Chemicals & Ors., reported in 1996 (1) G.L.R. 729, this Court has held that when requirements of Rule 27 of the Rules 1976 are not complied, the accused is entitled to acquittal.

12. It appears from the evidence of P.W. 2 that the procedure was not followed while submitting sample for analysis. Therefore, there was breach of Section 21 of the Act and Rule 27 of the Rules 1976. In view of decision of Dahyabhai Kalubhai Solanki (supra) the accused were entitled for acquittal and the learned Magistrate was justified in passing the impugned judgment.

13. It also appears that the complaint was filed by Assistant Environment Engineer. The evidence of P.W. 1 Kirankumar Ramshanker Upadhyay Exh. 43 indicates that he was authorised by the Chairman to file complaint against the accused. Therefore, power to sanction instituting complaint or application was delegated by the Board to the Chairman against the accused. The Chairman by resolution Exh. 45 in exercise of powers so delegated authorised Assistant Environment Engineer of the Board to file complaint. In the decision of M/s. Nicosulf Industires & Exports Pvt. Ltd. & Another V/s. State of Gujarat & Another, reported in 2002 (2) G.L.R. 1581, this Court has held that without delegation of powers by Board the Chairman cannot exercise power to delegate the authority to file complaint to other person. It was not within the general powers of the Chairman of the Board to exercise power of delegation to some other officer of the Board to file complaint. In the instant case, it appears that by Resolution, the appellant Board delegated powers to sanction institution of complaint to the Chairman. Thereafter, the Chairman authorised the Assistant Environment Engineer to file complaint u/s 43 and 44 of the Act. Therefore, in view of this decision, it was not within the general powers of the Chairman to exercise power of delegation to Assistant Environment Engineer to file complaint. Therefore, as there is no authorisation by the Board in favour of the complainant to file complaint, the trial becomes illegal. Hence, the learned trial Magistrate was justified in acquitting the accused.

14. For the foregoing reasons, appeal fails and stands dismissed and judgment and order of acquittal rendered on 3-4-1998 by learned Judicial Magistrate, First Class, Ankleshwar in Criminal Case No. 1755 of 1989 is confirmed.

(Bankim N. Mehta, J.)

/JVSatwara/