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IN THE COURT OF SH. DEVENDRA KUMAR SHARMA
ADDL CHIEF METROPOLITAN MAGISTRATE (Spl. Acts) CENTRAL
TIS HAZARI COURTS: DELHI
Delhi Pollution Control Committee vs M/s N.R. Industries
U/s 23/24/25/26 & 33A r/w sec. 41/43/44 & 49 of Water Act, 1974
CC No.76/06
JUDGMENT
(a) Serial no. of the case : 02401R0201282000
(b) Date of commission of offence: 24.09.2000
(c)Name of complainant : Sh. Sunil Kumar
Junior Environmental Engineer
(d) Name, parentage, residence: 1)M/s N.R. Industries,
2)Nathuram
Both at B4, DSIDC Sheds, Wazirpur,
J.J. Colony, Delhi.
(e) Offence complained of/ proved : U/s 23/24/25/26 & 33A r.w.s.
41/43/44 & 49 of Water Act, 1974
(f) Plea of accused : Pleaded not guilty.
(g) Final order : Convicted
(h) Date of such order : 23.03.2015 Date of Institution : 27.06.2000 Arguments heard/order reserved: 09.03.2015 Date of Judgment: 23.03.2015 Brief statement of the reasons for the decision:
1. The Complainant i.e. Delhi Pollution Control Committee (for short the 'DPCC') filed the present complaint u/s 23/24/25/26 & 33A read with section 41/43/44 & 49 of the Water (Prevention & Control of Pollution) Act, 1974 (for short the 'Act') against the accused. Present complaint was filed through Sh. Sunil Kumar, the then Junior Environmental Engineer in DPCC.
DPCC vs M/s N.R. Industries CC No.76/06 1 of 11 The short facts of the case for filing of the present complaint for prosecution of the accused no.1 firm of accused no.2 are that on 29.04.2000, the industrial unit of the accused firm M/s N.R. Industries situated at DSIDC Shed, Wazirpur, Delhi, was inspected by SDM (Model Town), complainant Sh. Sunil Kumar and other members. At the time of inspection, accused no.2 was not present and one of his employee Mr. Arvind was present there. During inspection, the unit was found engaged in electroplating work and was discharging trade effluents without any treatment directly into the drain. The unit was operating without any consent as required under the Act, therefore, the unit was sealed after preparing inspection report. After completion of investigation, present complaint was filed.
2. On filing of the complaint, accused was summoned for the alleged offences. Inadvertently, statement of CW1 Sh. Sunil Kumar was recorded 08.09.2006 at the stage of precharge evidence and thereafter, a notice u/s 251 Cr.P.C for violation of section 25 and 26 of the Act was framed against the accused on 05.02.2007. Vide order dated 17.04.2013, it was pointed out that present matter is a warrant trial case and both parties agreed that statement of witness Sh. Sunil Kumar and Mr. Ajay Kumar Gupta recorded may be recorded as pre charge evidence and be read as precharge evidence. Thereafter, matter was listed for arguments on charge.
On 25.07.2013, charge u/s 25/26 of the Act, punishable u/s 43/44 of the Act was framed against the accused to which he pleaded not guilty and claimed trial. Thereafter, matter was listed for post charge evidence.
DPCC vs M/s N.R. Industries CC No.76/06 2 of 11
3. In post charge evidence, the prosecution examined CW1 Sh. Sunil Kumar and CW2 Sh. Ajay Kumar Gupta. Both witnesses were cross examined in post charge evidence on behalf of the accused.
4. CW1 Sh. Sunil Kumar, the complainant, deposed that he was duly authorized to file the present complaint by virtue of order dated 05.05.2000 Ex.PW1/4 passed by Dr. Chandra Prakash, Incharge (Legal Cell). PW1 reiterated the facts mentioned in the complaint and stated that an inspection of industrial unit of accused was carried out on 29.04.2000. The unit was found engaged in electroplating work and was discharging trade effluents without any treatment directly into the drain. The accused was found operating its unit without obtaining requisite consent from DPCC and discharging untreated trade effluent. An inspection report mark F was prepared and the unit was sealed by the SDM/PW2.
5. CW2 Sh. Ajay Kumar Gupta is the then SDM who prepared the inspection report mark F and sealed the unit, corroborated the testimony of PW1.
6. Statement of accused was recorded u/s 313 read with section 281 Cr.P.C. In his statement accused denied all the allegations and stated that he has been falsely implicated in this case. No inspection was ever conducted in his presence nor any notice was given to him for inspection of the unit. Accused also stated that present complaint is not maintainable because only Member Secretary of DPCC is authorized to file the present complaint and present DPCC vs M/s N.R. Industries CC No.76/06 3 of 11 complaint is filed through area Environment Engineer.
In support of claim and contentions, accused examined himself as DW1. In his statement as DW1, stated that immediately after publishing of public notice in the news paper regarding putting up Effluent Treatment Plant (for short ETP) for treating effluent prior to discharging it, he purchased ETP system and got it installed in his unit on 19.01.2000 vide receipt Ex.DW1/3 The witness has also proved receipt regarding purchase of ETP and its requisite accessories as Ex.DW1/1 and Ex.DW1/2, copy of receipt dated 23.02.2000 regarding deposit of amount Rs.1875/ for sample analysis, DW1/4 remarks given by the official of M/s Sulabh International on the letter Ex.DW1/5 written by the accused, receipt regarding deposit of Rs.13,125/ for inspection/preparation Ex.DW1/9, adequacy report of ETP dated 24.07.2000 issued by M/s Sulabh International Ex.DW1/10, Adequacy Certificate (AC/019/2000) mark A and B, receipts dated 02.01.2001, 09.02.2001 and 30.08.2001 regarding deposit of amount on account of the sample analysis. The witness has also placed on record copy of complaints addressed to DPCC and SDM (Model Town) and its postal receipt Ex.DW1/14, Ex.DW1/16, Ex.DW1/15 and Ex.DW1/17 respectively, against the officials of DPCC and documents of his illness and treatment as DW1/6 to Ex.DW1/8.
7. I have given my thoughtful consideration to the submissions advanced on behalf of the parties and have gone through the relevant records. I have also gone through the written submissions filed on behalf of parties and relevant DPCC vs M/s N.R. Industries CC No.76/06 4 of 11 provisions of Water (Prevention & Control of Pollution) Act, 1974. A) The relevant provisions of section 24, 25 & 26 of the Water (Prevention & Control of Pollution) Act, 1974 are reproduced for ready reference:
24. Prohibition on use of stream or well for disposal of polluting matter, etc.(1) Subject to the provisions of this section,
(a) no person shall knowingly cause or permit any poisonous, noxious or polluting matter determined in accordance with such standards as may be laid down by the State Board to enter (whether directly or indirectly) into any [stream or well or sewer or on land]; or
(b) no person knowingly or permit to enter into any stream any other matter which may tend, either directly or in combination which similar matters, to impeded the proper flow of the water of the stream in a manner leading or likely to lead to a substantial aggravation of pollution due to other causes or of its consequences.
25. Restrictions on new outlets and new discharge - [(1) Subject to this provisions of this section, no person shall, without the previous consent of the State Board,
(a)establish or take any steps to establish any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, which is likely to discharge sewage or trade effluent into a stream or well or sewer or on land (such discharge being hereafter in this section referred to as discharge of sewage); or
(b)begin to make any new discharge of sewage
26. Provision regarding existing discharge of sewage or trade effluent. Where immediately before the commencement of this Act any person was discharging any sewage or trade effluent into a [stream or well or sewer or on land], the provisions of section 25 shall, so far as may be, apply in relation to such person as they apply in relation to the person referred to in that section subject to the notification that the application for consent to be made under subsection (2) of that section [shall be made on or before such date as may be specified by the State Govt. by notification in this behalf in the Official Gazette].
DPCC vs M/s N.R. Industries CC No.76/06 5 of 11 B) It is argued on behalf of the complainant that the case of the prosecution has been proved beyond reasonable doubt in view of the testimony of the witnesses. It is further submitted that in his cross examination, DW1/accused has also admitted that he was not having mandatory consent from the DPCC to run the unit till 29.04.2000 when the inspection was carried out in his aforesaid unit. Hence, accused may be convicted for the alleged offences. C) (i) On the other hand, it is argued on behalf of the accused that accused is innocent. He has been falsely implicated in this case just to harass him. It is vehemently argued that present complaint is not maintainable because being not filed by the competent person.
(ii) It would be necessary to discuss the issue of maintainability of the complaint first as it is a legal issue raised by the accused and the decision of this issue will affect the case of the complainant. It is argued that this complaint is not filed by the duly authorized and competent person. Only Member Secretary of DPCC is authorized to file the present complaint. However, present complaint is filed by area Junior Environmental Engineer.
(iii) In rebuttal, it is argued on behalf of the complainant that PW1 is duly authorized to file the present complaint and reliance is placed upon documents i.e copy of the Agenda for meeting to be held on 30.03.2000 Ex.PW1/3, copy of Minutes of Meeting held on 30.03.2000 Ex.PW1/4. Perusal of document Ex.PW1/4 (MOM), it is clear that the committee (DPCC) has approved the proposal of launching the prosecution against the defaulting water polluting DPCC vs M/s N.R. Industries CC No.76/06 6 of 11 units and also approved the authorization to AEEs/JEEs of DPCC to file complaint under Water Act and Air Act, 1981. Furthermore, similar issue raised before the Hon'ble High Court in case titled as "DPCC vs Aone Automobile & Ors" in Cr. L.P. 687 of 2013, has already been decided in favour of complainant and in view of the order dated 23.09.2014 passed in that case by Hon'ble High Court of Delhi, the plea of the accused is not sustainable at all. D) (i) It is further argued on behalf of the accused that the unit was not working at the time of inspection nor he was present at the spot. ETP was already installed in the unit and was functional. The complainant has not brought any documentary evidence or photographs in record which could suggest that the unit was operating at the time of inspection and the ETP installed in the premises was not functional. It is further argued that no sample was taken and sent to lab for expert opinion to determine the existence of effluent. However, this plea of the accused does not hold much water. PW1 Sh. Sunil Kumar and PW2 Sh. Ajay Kumar Gupta who inspected the unit of the accused on 29.04.2000, clearly deposed that though the ETP was installed in the premises but it was found that effluent was being discharged directly in the drain without any treatment as ETP was not functioning. PW1 and PW2 have also stated that at the time of inspection accused was not present but one of his worker, namely, Mr. Arvind was present at the site and after preparation of inspection report mark F, signature of said Mr. Arvind was obtained. Accused did not dispute this fact. Accused has also not denied that said Arvind was his not employee. In his evidence as DW1, accused stated that only he and his DPCC vs M/s N.R. Industries CC No.76/06 7 of 11 employee Mr. Arvind used to work in the said unit. Accused has also not explained as to what was Mr. Arvind doing in the said premises, if the unit was not working on the date of inspection. Thus, the plea of the accused that unit was not working at the time of inspection is incorrect.
(ii) Accused has taken one specific stand that immediately after publishing of public notice in the news paper regarding putting up Effluent Treatment Plant (for short ETP) for treating effluent prior to discharging it, he purchased ETP system and got it installed in his unit on 19.01.2000. He has also placed reliance upon the documents Ex.DW1/3, Ex.DW1/1, Ex.DW1/2, Ex.DW1/5, Ex.DW1/9, Ex.DW1/10, Adequacy Certificate (AC/019/2000) mark A and B, Ex.DW1/14, Ex.DW1/16, Ex.DW1/15 and Ex.DW1/17, to support his claim and contentions. However, these documents are not helpful to the accused. Document Ex.DW1/1 dated 15.01.2000 pertains to purchase of ETP system, document Ex. DW1 dated 18.01.2000 pertains to purchase of Water Tank, Ex.DW1/3 dated 19.01.2000 pertains to fitting of Tank and Ex.DW1/4 pertains to deposit of Rs.1875 to Sulabh International Institute on account of sample analysis. Except those documents Ex.DW1/4, other documents are of May, 2000 onwards. Adequacy Report of ETP Ex.DW1/10 pertains to 24.07.2000, much after the date of inspection. It is not in dispute that ETP was purchased by the accused as same was also found in the premise where unit of the accused was operating. But accused did not produce or prove on record any such Adequacy Report/Certificate which could suggest that ETP was installed in the premises of accused and was functional before or on the date of DPCC vs M/s N.R. Industries CC No.76/06 8 of 11 inspection. The document Ex.DW1/4 dated 23.02.2000 i.e receipt regarding deposit of Rs.1875/ on account of sample analysis and it does not suffice to assume that ETP was functioning at the crucial time of inspection. Accused has also not placed on record any document of any Company/Institute/Shop which could suggest that ETP was actually installed and started functioning immediately after its purchase by the accused nor any such witness has been examined.
(iii) In his cross examination, DW1/accused admitted the process of electroplating, number of machines and required man power of at least 810 persons as explained in the document Ex.DW1/10 at mark A and B, for executing the process mentioned on mark A in Ex.DW1/10. Thus, it is clear that for operating/maintaining ETP, at least 810 persons as well as considerable expenditure of money were/are required. In such circumstances, the installation of ETP by the accused in the unit was just an eye wash and due to consumption of huge men power and costly process, accused could not keep/maintain the ETP functional.
(iv) From bare perusal of defence evidence, accused does not appear to be firm on his stand. In his cross examination, DW1/accused tried to shift the liability upon his son stating that he had handed over all the machines mentioned in mark B to his son in the year 1998 and since then he was carrying said activity in the same unit separately in the adjoining shed. The machines mentioned in mark B were earlier being used by him prior to handing over to the same to his son. This plea of the accused appears to be DPCC vs M/s N.R. Industries CC No.76/06 9 of 11 afterthought. Accused did not disclose the name of his son. He has also not placed or proved any document which could suggest that the machines mentioned in mark B, were handed over by him to his son in 1998 and since then his son is using/maintaining the same. He even did not examine his son in support of his case.
E) Next contention raised is that no sample was taken, therefore, in absence of any expert opinion, it can not be said that the unit of the accused was discharging untreated effluent. However, perusal of section 21 of the Water (Prevention & Control Pollution) Act, 1974, makes it clear that collection of sample is not sine qua non. From the statement of witnesses and aforesaid discussions, it is clear that though ETP was available in the unit but same was not functional at the time of inspection and effluent generated from the process was being discharged directly in the sewer without any treatment. Even perusal of inspection report relied upon by the complainant makes it clear that ETP was installed in the unit but same was not functional and entire untreated effluent was being discharged without any kind of treatment into the public sewer/drain. In his cross examination as DW1, accused also admitted that unit was operating without obtaining requisite consent from DPCC. In such circumstances, it is not necessary to collect the sample and send the same to lab for expert opinion.
F) Lastly, it was argued on behalf of the accused that no notice u/s 25 of the Act was given. However, said provision makes it clear that any such industry etc. DPCC vs M/s N.R. Industries CC No.76/06 10 of 11 which are in operation prior to the Act, will obtain consent within three months from the date of commencement of Act. In this case there is nothing on record to suggest that accused unit was in operation prior to the year 1988. Even if for the sake of arguments, it may be assumed that the unit was in existence prior to the year 1988, the accused was required to obtain sanction/consent within three months and not notice was required. Moreover, in his cross examination, DW1/accused himself has admitted that he installed unit of electroplating in January, 2000. Thus his arguments qua mandatory notice is without any merit.
G) In view of the aforesaid discussions, it is held that the prosecution has proved its case beyond reasonable doubt against the accused that the unit of the accused itself was for electroplating. Further, it was operating without requisite consent from DPCC and untreated effluent was being discharged directly in the public sewer/drain. Accordingly, accused Nathu Ram is held guilty and convicted for the offence u/s 24/25/26 of the Act, punishable u/s 43/44 of the Act.
Let accused be heard on sentence on 26.03.2015.
(DEVENDRA KUMAR SHARA) ACMM(SPECIAL ACTS) CENTRAL TIS HAZARI COURTS DELHI Announced in open court on 23rd March, 2015 (Total number of page 11) (One spare copy attached) DPCC vs M/s N.R. Industries CC No.76/06 11 of 11