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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 AOne Automobile
U/s 24/25/26/33A r.w.s. 41/43/44/49 of Water Act, 1974
CC No.76/06
JUDGMENT
(a) Serial no. of the case : 02401R0283622001
(b) Date of commission of offence: 19.04.2000
th
(c) Name of complainant : DPCC, 4 Floor ISBT, Delhi54
through Sh. Ramesh Chandra,
Junior Environmental Engineer
(d) Name, parentage, residence: 1)M/s AOne Automobile
A1, Jyoti Colony, Loni Road,
Shahdara, Delhi
(e) Offence complained of/ proved : U/s 24/25/26/33A r/w sec.41/43/44/49 of Water Act, 1974
(f) Plea of accused : Pleaded not guilty.
(g) Final order : Acquitted
(h) Date of such order : 09.09.13 Date of Institution : 08.08.2000 Arguments heard/order reserved: 06.09.13 Date of Judgment: 09.09.13 Brief statement of the reasons for the decision:
1. The Complainant i.e. Delhi Pollution Control Committee (for short 'DPCC') filed the present complaint u/s 24/25/26/33A read with section 41/43/44 & 49 of the Water (Prevention & Control of Pollution) Act, 1974 (hereinafter to be referred as 'Act') against the accused. Present complaint was filed through Sh. Ramesh Chandra, the then Junior Environmental Engineer in DPCC.
DPCC vs M/s A-One Automobiles 1 of 9 The short facts of the case for filing of the present complaint for prosecution of the accused are that on 19.04.2000, the industrial unit of the accused M/s AOne Automobile was inspected by Vigilance Squad consisting of SDM (Seemapuri), DPCC Engineer and Sector Officer. During inspection, the required facility for washing the automobiles was found in the premises and oil mixed effluent was also observed in the drains and therefore, the unit closure directions were issued by the SDM. It is also alleged that the accused was operating its unit without obtaining requisite consent from DPCC. Hence, present complaint.
2. On filing of the complaint, accused was summoned and thereafter the prosecution examined the complainant Sh. Ramesh Chandra, Assistant Environmental Engineer as CW1 in precharge evidence. Thereafter, a charge u/s 24/25 & 26 of the Act, punishable u/s 41/43 & 44 of the Act was framed against the accused to which he pleaded not guilty and claimed trial.
3. In post charge evidence, the prosecution examined the complainant Sh. Ramesh Chandra, Environmental Engineer, as CW1, Sh. Dalbir Singh, Executive Engineer as CW2 and Sh. Mohd. Ahsan Abid, Additional Development Commissioner as CW3.
4. CW1 Sh. Ramesh Chandra, the complainant, deposed that he was duly authorized to file the present complaint by virtue of order dated 05.05.2000 Ex.CW1/2 passed by Dr. Chandra Prakash, Incharge (Legal Cell). CW1 DPCC vs M/s A-One Automobiles 2 of 9 reiterated the facts mentioned in the complaint and stated that an inspection of industrial unit of accused was carried out on 19.04.2000 and required facility for washing the automobiles was found in the premises and oil mixed effluent was also observed in the drains. The accused was operating its unit without obtaining requisite consent from DPCC and discharged untreated trade effluent. An inspection was prepared and the unit closure directions were issued by the SDM. He has proved on record inspection report Ex. CW1/8 and closure order Ex.CW1/9.
5. CW2 Sh. Dalbir Singh, the then Sector Officer, deposed that he alongwith SDM and DPCC Engineer, inspected the unit of the accused and found water mixed with oil and lubricants. Pump and compressor being used for washing vehicles were also found. The witness also deposed that an inspection report was prepared and premises was sealed. He also identified his signature appearing on inspection report Ex.CW1/8.
CW3 Mohd. Ahsan Abid, the then SDM who passed the sealing order, corroborated the testimony of other witnesses and deposed more or less on the lines of CW1 and CW2. All three witnesses were cross examined at length on behalf of the accused.
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. However, accused opted not to lead any defence evidence.
DPCC vs M/s A-One Automobiles 3 of 9
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 arguments filed on behalf of complainant as well as relevant 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 shall knowingly cause or permit to enter into any stream any other matter which may tend, either directly or in combination with similar matters, to impede 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,
8. 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
9. 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 sub section (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]. B) Learned counsel for complainant argued that the case of the prosecution has DPCC vs M/s A-One Automobiles 4 of 9 been proved beyond reasonable doubt in view of the testimony of the witnesses. Hence, accused may be convicted for the alleged offences.
On the other hand, learned defence counsel argued that accused is innocent he has been falsely implicated in this case just to harass him. It is further argued that no documentary evidence or photographs are filed on record to show that the unit was in existence at the time of inspection and moreover, 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. CW1, CW2 and CW3 were the member of Vigilance Squad, who inspected the unit of the accused on 19.04.2000. The original inspection report and closure order mentioning the irregularities and violation of the Hon'nble Supreme Court order and the Water Act by the accused, have been proved on record as Ex.CW1/8 and mark A. Accused did not deny his signature appearing upon inspection report Ex.CW1/8 as well as sealing order mark A. It is evident from the inspection report as well as sealing order that, the unit of the accused was inspected on 19.04.2000 and these documents were prepared at the spot which were signed by the accused also. C) 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, it is clear that no Effluent Treatment Plant (ETP) was installed by the accused and required DPCC vs M/s A-One Automobiles 5 of 9 facilities of servicing and washing of automobiles were existing at the site. Mixed oil effluent was also observed in the drain of unit and discharge of trade effluent without any treatment by putting any ETP. CW1 also stated that accused was operating his unit without obtaining requisite consent from DPCC. Accused has not denied this fact. Even the perusal of inspection report relied upon by the complainant makes it clear that no ETP was provided for the treatment of trade effluent and the entire untreated effluent was being discharged without any kind of treatment into the public sewer/drain. It is not the case of the accused that any ETP was installed and therefore, expert opinion is must to determine the prescribed parameter of trade effluent. In such circumstances, it is not necessary to collect the sample and send the same to lab test for expert opinion.
D) It is further argued that testimony of prosecution witnesses is not reliable as there is material contradiction in the testimony of prosecution witnesses and no independent public witness was joined in this case. This arguments of the learned defence counsel does not carry much weight. Inspection and closure of the unit is evident from the document Ex.CW1/8 and mark A. Perusal of the records reveals that the raid was conducted at the unit being closely run by the accused. Thus, in the circumstances joining of public witness can not be said to be necessary as it was not a public place. Even there is no law which mandates joining of public witness in each case. In any case, if independent persons are not willing to be a witness, the prosecution cannot be blamed and evidence of other witness cannot be discarded. In support of claim and DPCC vs M/s A-One Automobiles 6 of 9 contention, reliance may be placed upon the judgment reported in "AIR 1988 SC 1998". Though, some minor contradictions appears in the testimony of prosecution witnesses regarding the time of reaching the spot, location, distance and direction of shop. In this matter, inspection was carried out on 19.04.2000 and CW1 and CW2 was examined/cross examined in the year 2011 and CW3 was examined in the year 2012. Thus, it can not be aspected from a witness to tell each and everty thing minutely after passing of such a long period. Such type of minor contradictions may obviously occur due to lapses of a decade.
E) However, before coming to the conclusion of the case, it would be necessary to one important and legal issue raised by the learned defence counsel as the decision of this issue affect the case of the complainant. Learned counsel for the accused has vehemently argued that this complaint is not filed by the duly authorized and competent person and approval for filing the present complaint is not proved on record. On the other hand, learned counsel for complainant argued that not filing of approval on record is not fatal to the prosecution and this objection has been raised for the first time at the stage of fag end of the case. Per contra, learned defence counsel argued that except bald statement nothing is on record to show that complainant obtained any approval prior to filing of the present complaint. It is further argued that prosecution witnesses have kept mum that whether any approval was obtained or not. Even, this fact has not been mentioned in the complaint. Therefore, this legal issue was not raised earlier and complainant can not be allowed to advantage of this very DPCC vs M/s A-One Automobiles 7 of 9 lacuna on the part of the complainant.
F) As observed this complaint was filed on behalf of complainant by CW1 Sh. Ramesh Chandra the then serving Junior Environment Engineer in DPCC. CW1 deposed that he is authorized to file the present complaint through the document Ex.CW1/2. Bare perusal of document Ex.CW1/2 shows that Assistant/Junior Environmental Engineer was authorized to file complaint with prior approval of the Chairman of DPCC. It is argued on behalf of complainant that approval was obtained. However, no such approval is filed or proved on record. No approval as mentioned in document Ex.CW1/2 is filed on record. Further, there is no copy of minutes of meeting dated 30.03.2000 as stated in Ex.CW1/2 is on record to show that any resolution was passed to authorize area AEE/JEE to maintain prosecution as contemplated u/s 49 of Water Act. Present complaint is filed by CW1 who can not be delegated the power to adopt pick and choose policy. The statutory power of giving approval is given to the Board. In this case, complainant was authorized to file the present complaint through office order Ex.CW1/2 passed by Dr. Chandra Prakash, Incharge (Legal Cell) and not by the board. Thus, present complaint is not sustainable in absence of valid sanction/approval accorded by the competent person. In this regard, reliance may be placed upon the judgment report in "Criminal Appl. No.1284 of 1989, titled as S.M. Dubash and Ors vs. V.V.M. Bhosale and Ors".
G) In this case, it is reiterated that CW1 has even failed to show the valid DPCC vs M/s A-One Automobiles 8 of 9 sanction/approval to depose on behalf of the complainant. In fact, in this case, it appears that there is no approval accorded for filing of the complaint or for deposing before the court. In view of the aforesaid facts and circumstances, the court is of the considered view that the complainant has failed prove the competency to file this complaint on behalf of the complainant or deposing before this court by CW1. In this regard further reliance may be placed uon the judgment reported in "V (2008) SLT 246". In view of the findings regarding the competency of the witness to depose before this court as well as regarding filing of the present complaint, the court is of the considered opinion that the complainant has failed to prove the allegations against the accused made in the complaint in accordance with the provisions of law. Complaint is, therefore, dismissed. Accused is acquitted of charges leveled against him. However, bail bonds of accused already on record is extended in terms of section 437A for a period of six months. Case property, if any, be confiscated to the state and file be consigned to record room.
Judgment be sent to the server www.delhidistrictcourt.nic.in.
(DEVENDRA KUMAR SHARA) ACMM(SPECIAL ACTS) CENTRAL TIS HAZARI COURTS DELHI Announced in open court on 09.09.13 (Total number of page 9) (One spare copy attached) DPCC vs M/s A-One Automobiles 9 of 9