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CR.A/38319/1999	 7/ 7	JUDGMENT 
 
 

	

 

IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
 

 


 

CRIMINAL
APPEAL No. 383 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.
		
	

 

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

D
K SOLANKI, LAW OFFICER - Appellant(s)
 

Versus
 

GANESH
FILAMENT & FABRICS MFG.PVT.LTD. & 5 - Opponent(s)
 

===================================================== 
Appearance
: 
MR MR SUNIL L MEHTA for
Appellant, 
NOTICE SERVED for Respondents : 1,3 - 5. 
NOTICE
UNSERVED for Respondents : 2. 
MS MITA S PANCHAL APP  for
Respondent No.
6, 
=====================================================
 
	  
	 
	  
		 
			 

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 5-3-1998 by learned Chief Metropolitan Magistrate, Ahmedabad in Criminal Case No. 443 of 1995 acquitting accused respondents No. 1 to 5 for the offence punishable u/ss 43, 44 read with Section 47 of the Water (Prevention and Control of Pollution) Act, 1974 (hereinafter referred to as the Act ).

2. According to the prosecution case, accused No. 2 is the Manager and accused No.3 to 5 are the Directors and the persons in charge of conduct of business of accused No.1 - Shri Ganesh Filament & Fabrics Manufacturing Pvt. Ltd., Narol, Ahmedabad. The accused are engaged in the business of processing and finishing of grey cloth. The accused had established the factory in the year 1976. The accused company was required to obtain necessary consent before establishment of the company under Section 24 and 25 of the Act. The accused company had applied for consent by application dated 23-10-1985 before the appellant Gujarat Pollution Control Board but it was refused by their letter dated 15-1-1986. The officers of the Board carried out inspection of the plant and took sample of water for analysis. It was found during the inspection that as there was no treatment plant polluted water was being discharged in Sabarmati River through the outlet created without the consent of the Board. The sample of water collected was sent for analysis. The report revealed that the polluted matters were in excess than the standards laid down by the Board and hence, the prosecution was launched against the accused,

3. Learned trial Judge framed charge Exh. 24 against the accused for the aforesaid offences. 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 the 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. 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.

7. The evidence of P.W. 2 Bina J. Bhatt Exh. 11 indicates that the tag Exh.19 did not mention the method of collection of sample and that it was collected in polythene container and that the sample was preserved in ice. The evidence of this witness does not clearly indicate the capacity of the container in which the sample was collected. It also appears from the evidence of this witness that the sample was not preserved as required under Rule 27 (g).

8. 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.

9. In view of above, the evidence of P.W. 2 indicates that there was breach of Rule 27 of the Rules 1976. Therefore, the accused were entitled for acquittal and the learned Magistrate was justified in passing the impugned judgment.

10. It also appears that acquittal was recorded as there was no evidence with regard to liability of the accused. Section 47 of the Act provides that where an offence is committed by a company every person, who at the time of offence was committed was in charge of and was responsible for the conduct of the business of the company shall be deemed to be guilty for the offence. The evidence of P.W. 1 Dahyabhai Kalubhai Exh. 3 indicates that he did not make inquiry with regard to person in charge of and responsible for the conduct of business of the company. Therefore, there is no evidence to indicate that accused No. 2 to 5 were in charge of and were responsible for the conduct of the business of the company under Section 47 of the Act. Therefore, the trial Court was justified in acquitting the accused.

11. As regards authority to file complaint, in the decision of M/s. Nicosulf Industries & Exports Pvt. Ltd. & Another V/s. State of Gujarat & Another reported in 2002 (2) G.L.R. 1580, this Court held that the Chairman had no authority to file complaint. The matter was carried to the Hon'ble Supreme Court. The court in Criminal Appeal No.9 of 2002 decided on December 4, 2008, held that delegation to the Chairman of the power to sanction prosecution by the Board was valid and effective for the purpose of Section 49(1)

(a) of the Act. Therefore, the trial Court committed error in coming to the conclusion that the complainant had no authority to file complaint.

12. 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