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IN THE COURT OF SH. AJAY GARG : ACMM (SPL. ACTS):
CENTRAL,TIS HAZARI COURTS, DELHI
COMPLAINT CASE NO. 518337/2016
DELHI POLLUTION CONTROL COMMITTEE
VS.
M/S. SIYARAM DYEING ETC.
(A) DATE OF COMMISSION OF : 18.02.2000
OFFENCE
(B) NAME OF COMPLAINANT DELHI POLLUTION CONTROL COMMITTEE,
THROUGH SH. PANKAJ KAPIL,
(ASSISTANT ENV. ENGINEER),
4TH FLOOR, I.S.B.T, DELHI-110054
(C) NAME, PARENTAGE, : (1). M/S. SIYARAM DYEING,
RESIDENCE OF ACCUSED C-20, SITAPUR, NEW DELHI-110045.
(2) MR. SHYAM SUNDER SAINI,
C-20, SITAPURI,
NEW DELHI-110045.
(D) OFFENCE COMPLAINED : U/S 24/25/26/33A R/W SEC.41/42/43/44/49 OF
OF/PROVED THE WATER ACT, 1974.
(E) PLEA OF ACCUSED : PLEADED NOT GUILTY.
(F) FINAL ORDER : Acquitted
(G) DATE OF SUCH ORDER : 11.04.2017
Date of Institution : 28.04.2000
Arguments heard : 07.04.2017
Date of Judgment : 11.04.2017
DPCC Vs. M/s Siya Ram Dyeing CC No. 518337/16 page no. 1 of 13
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Brief statement of the reasons for the decision:
1.That 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. Pankaj Kapil, the then Assistant Enironmental Engineer in DPCC.
2. As per the complaint on 18.02.2000, the industrial unit M/s.
Siyaram Dyeing run by accused Shyam Sunder Saini was inspected by Vigilance Squad consisting of SDM (Environment) and engineers of DPCC. During inspection, the unit was in operation without ETP thereby discharging untreated effluent i.e., heavily coloured effluent 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, this complaint.
3. On filing of the complaint, accused was summoned and thereafter the prosecution examined Sh. Pankaj Kapil, Sr. Environmental Engineer as CW1 in pre-charge evidence. Thereafter, a charge u/s 24 (1)
(a) / 25 (1) (a) & 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.
4. In post charge evidence, the prosecution examined the complainant DPCC Vs. M/s Siya Ram Dyeing CC No. 518337/16 page no. 2 of 13 3 Sh. Pankaj Kapil, Sr.Environmental Engineer as CW1, Sh. B. M. S. Reddy, SEE, DPCC as CW2 and Sh.Y.V.V.J.Rajasekhar, Additional Secretary, Power of GNCTD, Delhi as CW3.
5. CW1 Sh. Pankaj Kapil, the complainant, deposed that he was duly authorized to file the present complaint by virtue of order dated 24.04.2000 Ex.CW1/A passed by Dr. Chandra Prakash, Incharge (Legal Cell). CW1 reiterated the facts mentioned in the complaint and stated that an inspection of industrial unit of accused was carried out on 18.02.2000 and found that accused is discharging the effluent without any treatment. The accused was operating its unit without obtaining requisite consent from DPCC and discharging untreated trade effluent. Inspection report was prepared and the unit closure directions were issued by the SDM. He has proved on record inspection report Ex. CW1/6, two photographs taken at the time of inspection are Ex. CW1/7 and Ex.CW1/8 and closure order Ex.CW1/9 and also proved copy of board meeting dated 30.03.2000 as Ex. CW1/10 (OSR).
6. CW2 Sh. B.M.S. Reddy, the then SEE, DPCC, deposed that he alongwith SDM and DPCC Engineer, inspected the unit of the accused which was found engaged in the activity of cloth dyeing without mandatory consent under Water Act and without effluent treatment plant to treat the effluents generated by the operation team. The witness also deposed that he has prepared the inspection report as Ex. CW1/6 which bears his signature at point Z and bearing signature of one Sarfuddin at point X. He further proved two photographs with negatives taken at the time of DPCC Vs. M/s Siya Ram Dyeing CC No. 518337/16 page no. 3 of 13 4 inspection as Ex. CW2/1 (colly) and Ex. CW2/2 (colly). He further deposed that the unit was sealed by the SDM vide Ex. CW1/9.
7. CW3 Sh.Y.V.V.J.Rajasekhar, Additional Secretary, Power of GNCTD, Delhi, 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.
8. 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.
9. DW-1 i.e. accused no. 2 Shyam Sunder Saini tendered himself as defence witness. He deposed that he was not operating any unit which is shown in the present complaint. He further deposed that he did not know any Sarfuddin and he was not his employee. He also deposed that he was not involved in any illegal activity and was not operating the unit under his ownership. He was cross examined by Counsel for the complainant.
10. Final arguments heard.
11. 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 by both sides.
DPCC Vs. M/s Siya Ram Dyeing CC No. 518337/16 page no. 4 of 13 5
12. Ld. counsel for complainant argued that cases pertaining to discharge of industrial effluent in the river Yamuna are launched on the basis of series of directions passed by Hon'ble Supreme Court in case titled as "Yamuna Vs. Central Pollution Control Board & Anr, M.C. Mehta Vs. Union of India & Ors., M.C. Mehta Vs. Union of India, U.P. Pollution Control Board Vs. M/s Mohan Meakins Ltd. & Ors. He further argued that upon inspection, the industrial unit under the name and title of M/s Siyaram Dyeing being run by accused Shyam Sunder Saini was found discharging untreated effluent in drain and, thus the instant complaint was filed. He further argued that at the time of inspection, one Sarfuddin met at the spot and disclosed the name of accused Shyam Sunder Saini being owner and proprietor of the said industrial unit. During the course of arguments, Ld. counsel for the complainant submitted that as a matter of abundant precaution, the instant complaint has been lodged against the industrial unit i.e. M/s Siyaram Dyeing as well as accused no. 2 Shyam Sunder Saini though the industrial unit is a proprietorship concern having no legal entity, both accused are one and the same. He further argued that even the factum of proprietorship of the industrial unit has been admitted by accused no. 2 at several stages during the trial. As per order of this Court dated 15.7.11 it was recorded that accused is willing to pay Rs. 1 lac as fine. Further in statement of accused recorded U/s 313 Cr.P.C., accused no. 2 Shyam Sunder Saini was shown as proprietor of industrial unit M/s Siyaram Dyeing. Even before Lok Adalat on 23.11.13 accused appeared for himself as well as for accused no. 1 which indicates that he was the proprietor of industrial unit. He further stressed that even in DPCC Vs. M/s Siya Ram Dyeing CC No. 518337/16 page no. 5 of 13 6 affidavit dated 19.02.11 filed alongwith plea bargining application, he represented himself as proprietor of accused firm and now he cannot deny that he has no concern with the accused firm. Ld. counsel further contended that during entire trial, the same counsel has represented both the accused and common cross-examination has been conducted on behalf of the accused. Ld. counsel for the complainant also relied upon cross-examination of CW-1 wherein a suggestion was given that accused has not committed the offence deliberately or intentionally. He further submitted that even in defence evidence, accused Shyam Sunder Saini admitted that he was owner of the property wherein the industrial unit is being set up and thus it proves that he was running the accused unit. He further submitted that though in his defence accused claimed that he sold out the property in question to one Sh. Jaykant, however neither he provided the details of Jaykant nor examined him as defence witness and thus adverse inference should be drawn against him. He relied upon statement of accused U/s 313 Cr.P.C. and stated that accused has simply denied the charges and allegations and thus in the absence of any reason for non explanation of incriminating circumstances his denial cannot be considered. In support of his contention he relied upon following judgments:-
13. Anthony D'Souza & Ors. Vs State of Karnataka: (2003) 1 SCC 259 "In their examination under Section 313 Cr.PC the accused denied the prosecution story in toto. They denied that the lorry accident had taken place. They also denied to have received any injuries. In short, in their Section 313 statement they completely denied the established facts and offered false DPCC Vs. M/s Siya Ram Dyeing CC No. 518337/16 page no. 6 of 13 7 answers. By now it is a well-established principle of law that in a case of circumstantial evidence where an accused offers false answer in his examination under Section 313 against the established facts, that can be counted as providing a missing link for completing the chain."
14. Mahanand Naik Vs State : (2013) 5 AIR Bom R 621:
"The answers given by the accused under Section 313 of Cr. PC are not strictly 'evidence' as it is understood but sub- section (4) of the said Section, itself, inter alia, provides that the answers given by the accused may be taken into consideration. The same can be taken into consideration either in judging the innocence of the accused or his guilt. The purpose of putting the questions to the accused under Section 313 Cr. PC is to afford an opportunity to him to given explanations consistent with his innocence. This provision is mainly for the benefit of the accused though it helps the Court to find out the truth. It is well settled that this examinations consistent with his innocence. This provision is mainly for the benefit of the accused though it helps the Court to find out the truth.
The various facts, established by the prosecution, which successfully complete the chain of circumstantial evidence, with the assistance of additional or missing links furnished by the accused on account of non-explanation by him of the incriminating circumstances appearing against him in evidence and duly put to him in the statement under section 313 Cr. PC, in the present case, taken cumulatively advances the case against the accused beyond reasonable doubt and satisfactorily point to the accused only as the person who committed the crime.
15. Amarnath Vs. State of Punjab:Crl. Revision No. 2804/10 decided on 11.10.2010:
"However, in the absence of any defence evidence except for the mere denial, this court in view of the above discussion finds sufficient grounds to hold the accused guilty.
DPCC Vs. M/s Siya Ram Dyeing CC No. 518337/16 page no. 7 of 13 8
16. He further argued that in the instance case there was no requirement of collection of samples as there was no ETP (Effluent Treatment Plan). He further contended that no public witness was joined during the inspection as the same is not mandatory and relied upon State of U.P. Vs. Anil Singh: AIR 1988 SC 1988. Lastly he submitted that in view of the site inspection report and the admission of the accused at several stages, it is proved that accused no. 2 was running the said industrial unit which was found to be discharging effluent without any treatment or ETP and thus committed offence U/s 24,25, 26 punishable U/s 44 of the Water Act.
17. On the other hand, Ld. Defence counsel assailed the prosecution case on the ground that being the criminal case, the burden is upon the prosecution to establish its case against the accused and the same cannot be shifted upon the accused in any case. The best evidence in the instance case would be of Sarfuddin who disclosed the name of the accused to the complainant. However, he was neither examined as a defence witness nor made an accused though present at the spot, for the reasons best known to the prosecution. Thus his information regarding accused being the owner of the industrial unit M/s Siya Ram Dyeing cannot be read against accused being hearsay. He further contended that presence of SDM at the time of inspection is doubtful as he has not signed the inspection report Ex. PW-1/6 nor the samples were seized in the instant case. He further contended that in the instance case the complainant had not complied with the provisions of Section 23(2) of Water Act as well as Section 100 of Cr.P.C. while conducting alleged inspection and thus the entire proceedings stands vitiated.
DPCC Vs. M/s Siya Ram Dyeing CC No. 518337/16 page no. 8 of 13 9
18. Ld. defence counsel also argued that no reliance can be placed on the statement of accused recorded U/s 313 Cr.P.C. without having substantial evidence to this effect nor the contents of the affidavit filed alongwith plea bargaining application can be considered as per the protection provided U/s 265 Cr.P.C.
19. Lastly he contended that even if it is presumed that inspection was carried out and the violation was noticed, still there is not even an iota of evidence connecting accused no. 2 Shyam Sunder Saini with the said industrial unit.
20. Heard. Record perused. Considered.
21. Admittedly, being the criminal proceedings, the onus lies upon the prosecution to stand on its own leg and they cannot derive any benefit whatsoever out of the lacuna's in the defence case.
22. Further as the complainant admitted before the Court that accused no. 1 and 2 are one entity being proprietorship concern and its proprietor, the onus lies upon the prosecution to establish the identity of the accused. In the instance case though complainant alleged that M/s Siya Ram Dyeing is a proprietorship unit run by accused no. 2 Shyam Sunder Saini, however, apart from mere bald averments, no evidence to this effect has been led. Though in the inspection report Ex. PW-1/6 and order of sealing Ex. CW-1/9, the name of the accused Shyam Sunder Saini was recorded DPCC Vs. M/s Siya Ram Dyeing CC No. 518337/16 page no. 9 of 13 10 as owner, however, the source of said information has not been proved on record. As per their own case, the name of the accused was disclosed to them by one Sarfuddin who met at the site during investigation, but neither he was examined as a witness nor made an accused. Rather, on the contrary, during the evidence, CW-1 admitted before the Court that they have not established or verified the identity of Sarfuddin and did not collect any document of ownership. Thus information provided by him cannot be relied upon being hearsay. Apart from this, no evidence has been led by the prosecution to suggest that accused Shyam Sunder Saini has any concern with M/s Siyaram Dyeing. As far as suggestions given during cross examination are concerned, it has to be read in toto and not in piecemeal. Upon reading cross-examination of CW-1, it is observed that the said suggestion was given in series of suggestions wherein entire case of the prosecution has been denied .
23. Further the authorities relied upon by Ld. counsel for the complainant in support of his contention that mere denial of incriminating evidence during statement of accused recorded U/s 313 Cr.P.C. can be read against him are distinguishable on facts as in those judgments, the accused denied the incriminating evidence established against him during the evidence, wherein in the instant case there is no such evidence at all to connect the accused with the said polluting industrial unit. Further in the instant case, there is no chain of circumstances connecting the accused with the offence in question. Law in this regard is well settled as held by Hon'ble Supreme Court in Raj Kumar Singh @ Raju @ Batya Vs. State of Rajasthan: (2013) 5 Supreme Court Cases 722:
DPCC Vs. M/s Siya Ram Dyeing CC No. 518337/16 page no. 10 of 13 11 "In view of the above, the law on the issue can be summarized to the effect that statement under Section 313 Cr.P.C. is recorded to meet the requirement of the principles of natural justice as it requires that an accused may be given an opportunity to furnish explanation of the incriminating material which had come against in the trial. However, his statement cannot be made a basis for his conviction. His answers to the questions put to him under Section 313 Cr.P.C. cannot be used to fill up the gap left by the prosecution wittinesses in their depositions. Thus, the statement of the accused is not a substantive piece of evidence and therefore, it can be used only for appreciating the evidence led by the prosecution, though it cannot be a substitute for the evidence of the prosecution. In case the prosecution evidence is not found sufficient to sustain conviction of the accused, the inculpatory part of his statement cannot be made the sole basis of his conviction. The statement U/s 313 Cr.P.C. is not reorded after administering oath to the accused. Therefore, it cannot be treated as an evidence within the meaning of Section 3 of the Evidence Act, though the accused has a right if he chooses to be a witness and once he makes that option, he can be administered oath and examined as a witness in defence as required under Section 315 Cr.P.C. An adverse inference can be taken against the DPCC Vs. M/s Siya Ram Dyeing CC No. 518337/16 page no. 11 of 13 12 accused only and only if the incriminating material stood fully established and the accused is not able to furnish any explanation for the same. However, the accused has a right to remain silent as he cannot be forced to become a witness against himself."
24. Even reliance upon the contents of the affidavit enclosed with the plea bargaining application is also misplaced as same cannot be looked into being part and parcel of accompanying application. Similarly, ordersheets cannot replace the evidence. However, as far as contention regarding non taking of samples and the inspection report not signed by the SDM is concerned, the same are not mandatory requirements, thus does not effect the case of the prosecution.
25. In view of the above submissions, I am of the considered view that prosecution has miserably failed to prove that accused Shyam Sunder Saini was running the industrial unit namely M/s Siya Ram Dyeing. Thus acquitted.
26. However, before parting, this Court would like to place on record certain observations regarding the mechanical manner in which the instant complaint was filed for the sake of formality. This Court is unable to understand as to why even the basic enquiry was not conducted before filing the instant complaint. It is not an uphill task to connect an individual with his business/livelihood. M/s Siyaram Dyeing being proprietorship concern must be having several documents issued by the Government DPCC Vs. M/s Siya Ram Dyeing CC No. 518337/16 page no. 12 of 13 13 such as Pan Card, Licence from various authorities, bank account, utility bills etc. , but complaint did not bother at all to collect even a single document to connect the accused with the polluting industrial unit. Rather the complainant chooses to become a mute spectator and fulfilled their duties by filing the half baked complaint. The complainant has not even bothered to collect the record from the SDM concerned who passed the desealing order of the unit as stated during the course of arguments by Ld. counsel for the complainant. There is every likelihood that during the proceedings before the SDM concerned, if any, the proprietor of the polluting industrial unit might have submitted some documents connecting him with his proprietorship concern. The entire case is based upon hearsay evidence and shoddy enquiry/investigation if at all conducted by the complainant/department before launching of prosecution. The complainant being a government body entrusted with the task of handling the most challenging problem of pollution which the entire nation is facing. Therefore, let the copy of this judgment be sent to the worthy Chairman of DPCC and its Member Secretary for appropriate immediate remedial action to avoid such failures in future.
27. Ordered accordingly.
(AJAY GARG) ACMM(SPECIAL ACTS) CENTRAL TIS HAZARI COURTS DELHI Announced in open court on 11th day of April, 2017 DPCC Vs. M/s Siya Ram Dyeing CC No. 518337/16 page no. 13 of 13 DPCC Vs. M/s Siyaram Dyeing 11.04.2017 Present: Ld. counsel for the complainant Accused Shyam Sunder Saini in person.
Vide separate judgment, dictated and announced, accused Shyam Sunder Saini is acquitted from all the charges levelled against him.
Put up for furnishing of bail bond U/s 437-A Cr.P.C. tomorrow I.e.12.04.17.
(AJAY GARG) ACMM (Spl. Acts):Central District:
THC: Delhi: 11.04.2017