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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW
FRIDAY ,THE 07TH DAY OF DECEMBER 2018 / 16TH AGRAHAYANA, 1940
Crl.Rev.Pet.No. 560 of 2018
AGAINST THE ORDER IN CC 296/2018 of JUDICIAL FIRST CLASS MAGIST.
COURT, CHOTTANIKKARA(TEMPORARY)
REVISION PETITIONER/ACCUSED 1 & 3 :-
1 M/S. PHILIPS CARBON BLACK LIMITED
31, NETAJI SUBHASH ROAD, CALCUTTA - 700 001WITH UNIT
OFFICE AT 39/137 A, KRISHNA SWAMI CROSS ROAD,COCHIN -
682 035 REPRESENTED BY ITS AUTHORISED REPRESENTATIVE
NANDAGOPAL G.,S/O.K.GOPALAKRISHNAN NAIR, AGED 43
YEARS.
2 V.R.MENON
MANAGER (POLUTION CONTROL) (RETIRED),AGED 62 YEARS,
M/S. PHILIPS CARBON BLACK LIMITED, KARIMUGHAL,
BRAHMAPURAM P.O., KOCHI - 682 303,NOW RESIDING AT
'THEJUS', VARDIUM,THRISSUR - 680 547.
BY ADVS.
SRI.S.SREEKUMAR (SR.)
SRI.P.PRIJITH
SRI.THOMAS P.KURUVILLA
RESPONDENTS/COMPLAINANT & ACCUSED NO.2 :-
1 SABU THOZHUPADAN
S/O. KURUVILLA, AGED 43 YEARS,RESIDING AT
THOZHUPPADAN HOUSE,KARIMUGAL, PUTHENCRUZ
VILLAGE,KUNNATHUNADU TALUK, ERNAKULAM.
2 ROY CHOWDHURY RABISWAR ROY CHOWDHURY
AGED 77 YEARS, FORMER CHIEF EXECUTIVE
ENVIRONMENT,M/S.PHILIPS CARBON BLACK LTD.,KRISHNA
SWAMI CROSS ROAD, COCHIN - 682 035.,NOW RESIDING AT
SUNNY VDIEW, FLAT NO.102,61R, SUREN SARKAR ROAD,
BELIAGHATA, KOLKATA - 700 010.
3 THE STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, ERNAKULAM - 682 031.
Crl.Rev.Pet.No. 560 of 2018
2
BY ADVS.
SRI.E.M.ABDUL KHADER
SMT.AMRIN FATHIMA
SMT.M.A.VAHEEDA BABU
SRI.BABU KARUKAPADATH
SRI.K.M.FAISAL (KALAMASSERY)
SRI.MITHUN BABY JOHN
SRI.P.U.VINOD KUMAR
SRI.RAHUL ROY
R3 BY SRI. C.S. HRITHWIK, SR PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
07.12.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.Rev.Pet.No. 560 of 2018
3
ORDER
The first petitioner is a limited company. The second petitioner and the second respondent were its Manager (Pollution Control) and Chief Executive (Environment) respectively. The company had two manufacturing units (Line I and II). The first respondent filed a complaint before the Judicial Magistrate concerned, which is now pending as C.C.No.296 of 2018 in the court of Judicial Magistrate of First Class, Chottanikkara. One of the allegations is that the company caused pollution in the area and it failed to comply with the direction of the Pollution Control Board to close down the units. The other allegation is that without obtaining the sanction of the Pollution Control Board the company established and operated a third unit (Line III). After complying with the direction given in the Crl.R.P No.293 of 2014 the learned Magistrate passed Annexure-B order holding that there are no sufficient grounds to discharge Crl.Rev.Pet.No. 560 of 2018 4 petitioners and the second respondent and a charge has to be framed against them for the offence under section 37 of the Air (Prevention of Control and Pollution Act, 1981). This order is challenged.
2. Heard the learned senior counsel appearing for the petitioners and the learned counsel appearing for the first respondent, and the learned Public Prosecutor.
3. Evidence of the first respondent was recorded under section 244 (1) Cr.P.C. PW1 to PW5 were examined and Exhibits X1 to X5 were marked on the part of the first respondent. Exhibits D1 to D9 were marked on the part of the petitioners and the second respondent before the learned Magistrate decided to frame charge against the petitioners and the second respondent.
4. Section 244 Cr.P.C does not contemplate adducing defence evidence. Accused shall not be allowed to adduce evidence at this stage. But documents were marked for the petitioners and Crl.Rev.Pet.No. 560 of 2018 5 second respondent only because this court by the order passed in Crl.R.P.No. 293 of 2014 allowed them to "produce all the materials, including the consent obtained from the Board". Ordinarily, defence evidence cannot be looked into by the learned Magistrate to decide whether charge should be framed or not.
5. The first petitioner company had initially two manufacturing units. They allegedly emitted and discharged effluent which caused pollution in an extensive area. On 07.04.2001 the Member Secretary of the Kerala State Pollution Control Board directed the company to take certain action by Annexure R1(e) letter. The following six facts were noted by the Pollution Control Board.
1. A major expansion work is in progress without clearance from the Board.
2. There is severe air pollution caused from the Unit.
3. The major source of air pollution is fugitive emissions.
4. There is leakage of carbon particles from various units and leaked material is accumulated Crl.Rev.Pet.No. 560 of 2018 6 at many places and/or spread all over both within and outside the plant.
5. Packing area, loading bay,
warehouse etc need special
mention in this regard.
6. The roads around the plant are not tarred or concreted. These are not wetted also as per the consent condition. As a result the dust pollution from the roads especially during truck movements is severe.
6. There was a proposal for expansion of the manufacturing units of the company. It apparently applied for the consent of the Pollution Control Board on 30.06.2001. By Annexure R1(i) order the Board informed the company of its refusal to give consent to establish a new unit (Unit III- called Line III).
7. Annexure R1(c) indicates that inspite of the stop order and the refusal of the Board to give consent to establish a new unit, the company commissioned and operated a new unit. The Member Secretary reported that the company violated the direction issued to it and it continued to pollute the air.
Crl.Rev.Pet.No. 560 of 2018 7
8. On 21.07.2001 the Pollution Control Board issued Annexure-R1(b) directions to the company to close down the operations in the manufacturing units as the operations were being done inspite of the refusal of the Board to issue consent to establish a new unit. On 27.07.2001 the Board informed the company again to close down the units.
9. Genuineness of the above documents is not disputed. The documents speak for themselves. It is also pertinent to note that the petitioners have no case that they had obtained consent of the Pollution Control Board before the 3rd unit was established.
10. The learned Senior counsel appearing for the petitioners would submit that the consent of the Pollution Control Board was obtained later. This was the argument before the trial court also. The trial court took the view that obtaining consent subsequent to the commission of the offence would not erase the offence. It took the Crl.Rev.Pet.No. 560 of 2018 8 view that not only for starting the operations but to establish the unit itself previous consent of the Pollution Control Board was necessary.
11. Section 21(1) of the Air (Prevention & Control of Pollution) Act provides that subject to the provisions in the section no person shall without the previous consent of the State Board establish or operate any industrial plant in an air pollution control area. There is no dispute that the area in which the petitioner company has established its units is an air pollution control area. It is immaterial whether the industrial plant will cause pollution or not. Even if the plant does not cause pollution, consent of the Board is necessary to establish any industrial plant in the area. Not only to operate an industrial unit, but to establish it also previous consent of the Board is necessary.
12. It was not disputed for me that the Unit- III of the petitioner company was established without the consent of the Pollution Control Crl.Rev.Pet.No. 560 of 2018 9 Board. Though the Pollution Control Board refused to give consent, the petitioner company operated the plant. The subsequent granting of the consent by the Board does not erase or efface the offences already committed by the company and its officers. The learned Magistrate rightly rejected the prayer of the petitioners to discharge them.
In the result, this Crl.R.P is dismissed.
Sd/-
K.ABRAHAM MATHEW JUDGE SMA Crl.Rev.Pet.No. 560 of 2018 10 APPENDIX PETITIONER(S)' ANNEXURES :-
ANNEXURE-A : TRUE COPY OF ORDER IN CRL.R.P.NO.293 OF 2014 DATED 19.02.2018 OF THIS HON'BLE COURT.
ANNEXURE-B : CERTIFIED COPY OF ORDER IN C.C.NO. 296 OF 2018 DATED 23.04.2018 OF JUDICIAL MAGISTRATE OF FIRST CLASS, CHOTTANIKKARA.
RESPONDENTS(S)' ANNEXURES :- ANNEXURE-R1(a) : TRUE COPY OF COMPLAINT DATED 02.02.2002 IN C.C.NO.105 OF 2002 OF JFCM COURT, KOLENCHERY.
ANNEXURE-R1(b) : TRUE COPY OF ORDER NO.
PCB/TVM.AIR/71/84 DATED 21.01.2001 OF POLLUTION CONTROL BOARD.
ANNEXURE-R1(c) : TRUE COPY OF REPORT DATED 19.07.2001 OF MEMBER SECRETARY, POLLUTION CONTROL BOARD.
ANNEXURE-R1(d) : TRUE COPY OF ORDER NO.PCB/AQU/71/84 DATED 27.07.2001 OF POLLUTION CONTROL BOARD.
ANNEXURE-R1(e) : TRUE COPY OF ORDER NO.PCB/AQU/71/84 DATED 07.04.2001 OF POLLUTION CONTROL BOARD.
ANNEXURE-R1(f) : TRUE COPY OF UNDERTAKING DATED 25.07.2001 OF PETITIONER COMPANY TO POLLUTION CONTROL BOARD.
ANNEXURE-R1(g) : TRUE COPY OF LETTER DATED 23.07.2001 OF IST PETITIONER COMPANY TO POLLUTION CONTROL BOARD.
ANNEXURE-R1(h) : TRUE COPY OF ORDER NO.PCB/TVM/AIR/71/84 Crl.Rev.Pet.No. 560 of 2018 11 DATED 25.07.2001 OF POLLUTION CONTROL BOARD.
ANNEXURE-R1(i) : TRUE COPY OF ORDER NO.PCB/CE.EK.290/2001 DATED 30.06.2001 OF POLLUTION CONTROL BOARD.
ANNEXURE-R1(j) : TRUE COPY OF ORDER DATED 24.09.2001 IN O.P.NO.10736/1999 OF THIS HON'BLE COURT. ANNEXURE-R1(k) : TRUE COPY OF ORDER DATED 14.10.2001 IN O.P.NO.10736/1999 OF THIS HON'BLE COURT. ANNEXURE-R1(l) : TRUE COPY OF JUDGMENT DATED 15.01.2002 IN O.P.NO. 12959/2001 OF THIS HOB'BLE COURT.
ANNEXURE-R1(m) : TRUE COPY OF ORDER IN CRL.M.C.NO.3608/2002 DATED 01.03.2004 OF THIS HON'BLE COURT.
ANNEXURE-R1(n) : TRUE COPY OF ORDER IN CRL.R.P.NO.3339/2009 DATED 28.03.2011 OF THIS HON'BLE COURT.
ANNEXURE-R1(o) : TRUE COPY OF ORDER IN CRL.R.P.NO.1725/2013 DATED 18.10.2013 OF THIS HON'BLE COURT.
//True Copy// PA TO JUDGE SMA