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CR.A/43319/1999	 10/ 10	JUDGMENT 
 
 

	

 

IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
 

 


 

CRIMINAL
APPEAL No. 433 of 1999
 

 
 
For
Approval and Signature:  
 
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
 
 
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1
		
		 
			 

Whether
			Reporters of Local Papers may be allowed to see the judgment ? No.
		
	

 
	  
	 
	  
		 
			 

2
		
		 
			 

To
			be referred to the Reporter or  not ? No.
		
	

 
	  
	 
	  
		 
			 

3
		
		 
			 

Whether
			their Lordships wish to see the fair copy of the judgment ? No.
		
	

 
	  
	 
	  
		 
			 

4
		
		 
			 

Whether
			this case involves a substantial question of law as to the
			interpretation of the constitution of India, 1950 or any order
			made thereunder ? No.
		
	

 
	  
	 
	  
		 
			 

5
		
		 
			 

Whether
			it is to be circulated to the civil judge ? No
		
	

 

 
=====================================================
 

DAHYABHAI
KALUBHAI SOLANKI - Appellant(s)
 

Versus
 

P.K.
GANGULY & 2 - Opponent(s)
 

===================================================== 
Appearance
: 
MR SUNIL L MEHTA for
Appellant. 
MS. H. B. Punani, APP for respondent No.3
State. 
 
===================================================== 

 
	  
	 
	  
		 
			 

CORAM
			: 
			
		
		 
			 

HONOURABLE
			MR.JUSTICE BANKIM.N.MEHTA
		
	

 

				
 

			Date
: 29/12/2008 

 

 
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 3-6-1998 by learned Chief Metropolitan Magistrate, Ahmedabad in Criminal Case No. 62 of 1995 acquitting accused respondents No. 1 to 4 for the offence punishable u/ss 25 read with Section 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 the owner and accused No. 2 is the Manager of Radiant Metal Industries, Industrial Estate, Odhav, Ahmedabad. The accused are engaged in manufacturing S.S. Belts. The accused use acids and other chemicals for the purpose of their production and an outlet is created for the discharge of the trade effluent without prior consent of the Board in a drain through unauthorised outlet and not installed water treatment plant and thereby violated the provisions of Sections 24 and 25 of the Act.

3. Learned trial Judge framed charge Exh. 24 against the accused for the offence u/s 25 of the Act. The accused pleaded not guilty to the charge and hence the prosecution adduced evidence.

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

5. 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 and record and proceeding of the trial court.

6. Section 21 of the Act provides for the procedure to be followed in connection with taking of samples for the purpose of analysis.

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.

(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,-

(a) serve on the person in charge of, or having 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;

(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;

(d) send one container forthwith,-

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

(ii) in any other case, to the laboratory established or recognised by the State Board under section 17;

(e) on the request of the occupier or his agent, send the second container,-

(i) in a case where such sample is taken from any area situated in a Union Territory, to the laboratory established 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.

(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,-

(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; 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 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- 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 the laboratory referred to in sub-clause (i) or sub-clause (ii), as the case may be, of clause (d) of sub-section (3).

7. 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. It provides that :

(a) The sample shall be collected preferably in polythene container and shall be labelled giving the following details, namely :-

(i) the source, and nature of sample,

(ii) the date and time of collection,

(iii) the method of preservation used.

(b) Atleast 2.5 litres of the materials required to be analyse shall be sent in a container, the capacity of which shall not be less than 3 litres and not be more than 5 litre.

(c) The sample shall accompany with the letter from the concerned authority and shall give the number of parameters to be analysed.

(d) The sample shall be preferably transported to the laboratory by a messenger.

(e) The messenger shall take receipt of sample from the laboratory.

(f) Fees for analyses shall be paid either in advance or at the time of submission of sample.

(g) The samples shall be preserved as per the instruction given in IS-2488-1966 and 1968 (Part I, II and III) and IS-4733-1968.

8. The evidence of P.W. 2 Binaben J. Bhatt Exh. 14 indicates that only one sample was taken for the purpose of analysis and no preservative was used. It also indicates that no note was made in inspection report and forwarding letter Exh. 21 and Exh. 22 that the sample was preserved in ice. The evidence of this witness also indicates that accused No. 2 gave writing Exh. 18 indicating that the sample was not taken in his presence. It also appears that the sample was not preserved as required under Rule 27 (a). There is no evidence with regard to capacity of the container. It also appears that the inspection report did not mention about the persons in charge of and responsible for the conduct of business of the company.

9. 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 with the accused is entitled to acquittal.

10. In view of the evidence of P.W. 2 it appears that the procedure under Section 21 of the Act was not followed while taking the sample and there was breach of Rule 27 of the Rules 1976. It also appears that there was no evidence with regard to liability of the accused under Section 47 of the Act. Therefore, the accused were entitled for acquittal and the learned Magistrate was justified in passing the impugned judgment.

11. As regards the authority to file complaint, the case of M/s. Nicosulf Industries & Exports Pvt. Ltd. & Another V/s. State of Gujarat and Another, reported in 2002 (2) G.L.R.1581, wherein this Court held that the delegation of power to file complaint was not valid, the case was taken to the Supreme Court and the Court in Criminal Appeal No.9 of 2002 decided on 4th December, 2008 held that the delegation of power of sanctioning prosecution by the Board to the Chairman was valid and effective even for the purpose of amended Section 49 (1) (a) of the Act. Therefore, learned J.M.F.C. Committed error in coming to the conclusion that the complainant had no authority to launch the prosecution.

12. In view of the fact that there was breach of Sections 21 and 47 of the Act and Rule 27 of the Rules, 1976, the trial Court was justified in acquitting the accused. The learned advocate for the appellant Board has failed to point out that the finding in that regard is erroneous. Therefore, the impugned judgment does not require any interference.

13. 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/     Top