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Gujarat High Court Case Information System
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CR.MA/818/2012 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 818 of 2012
=========================================
RANA
VISHNOI & 4 - Applicant(s)
Versus
GUJARAT
POLLUTION CONTROL BOARD & 1 - Respondent(s)
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Appearance
:
MR NITIN M AMIN for
Applicant(s) : 1 - 5.
None for Respondent(s) : 1,
MR JK SHAH
ADDL. PUBLIC PROSECUTOR for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 13/02/2012
ORAL
ORDER
1. Draft amendment granted.
2. This petition under Section 482 of the Code of Criminal Procedure, 1973 for quashing the Criminal Case No. 4531 of 1992 is filed by the applicants on the ground that ingredients as required under Section 47 of the Water (Prevention and Control of Pollution) Act, 1974 are not satisfied and further private complainant who happened to be an officer of the Gujarat Pollution Control Board has not averred about the manner and method of involvement of the applicants who are Directors of the Company in day to day business. Besides, the applicant No.1 is aged 80 years, applicant No. 2 is aged 85 years, applicant No.3 is aged 77 years, applicant No.4 is aged 71 years and applicant No.5 is aged 55 years. At such an advance stage of their life they may not be subjected to criminal prosecution particularly, when the trial has not progressed so far and only one witness is examined and that witness has also deposed to the extent of no liability of the applicants.
3. Mr.
Nitin Amin, learned advocate for the applicants has placed reliance on the decision of the Apex Court in the case of National Small Industries Corporation Limited v. Harmeet Singh Paintal & Anr. [(2010) 3 SCC 330], Saroj Kumar Poddar v. State (NCT of Delhi) [(2007) 3 SCC 693], Central Bak of India v. Asian Global Limited and Ors. [(2010) 11 SCC 203] and K.K. Ahuja v. V.K. Vora [(2009) 10 SCC 48] all arising out of proceedings undertaken under Negotiable Instruments Act and provisions of Section 138 read with Section 141 of the above Act and submitted that the applicants being Director and against them sufficient averments are not made as required under the section namely Section 47 of the Act, and that the trial has taken inordinate time, it amounts nothing but abuse of process of law and proceedings made as prayed in this petition be quashed and set aside.
4. Upon hearing learned advocate for the applicants, I am not persuaded by any of the submissions of learned advocate for the applicants on the ground that the Water (Prevention and Control of Pollution) Act, 1974 is enacted with an object to provide for the prevention and control of water pollution and the maintaining or restoring of wholesomeness of water, for the establishment, with a view to carrying out the purposes aforesaid, of Boards for the prevention and control of water pollution, for conferring on an assigning to such Boards powers and functions relating thereto and for matters connected therewith. Thus, provisions made for Prevention and Control of Water Pollution and maintaining and restoring of wholesomeness of pure water/ natural reserve as object and reasons of the Act.
5. The said act however defines provisions pertaining to pollution in definition clause 2(e) which reads as under:
"2(3) "pollution" means such contamination of water or such alternation of the physical, chemical or biological properties of water or such discharge of any sewage or trade effluent or of any other liquid, gaseous or solid substance into water (whether directly or indirectly) as may, or is likely to, create a nuisance or render such water harmful or injurious to public health or safety, or to domestic, commercial, industrial, agricultural or other legitimate uses, or to the life and health of animals or plants or of aquatic organisms;"
It further defines stream and trade effluent in Sections 2(f) and 2(k) as under:
"2(j) "stream" includes-
river;
water course(whether flowing or for the time being dry);
inland water (whether natural or artificial);
sub-terranean waters;
sea or tidal waters to such extent or, as the case may be, to such point as the State Government may, by notification in the Official Gazette, specify in this behalf;"
2(k) "trade effluent" includes any liquid, gaseous or solid substance which is discharged from any premises used for carrying on any [industry, operation or process, or treatment and disposal system] other than domestic sewage."
6. In the backdrop of above definition about pollution, stream and trade effluent, the complainant alleged breach of Section 24 pertaining to "Prohibition on use of stream or well for disposal of polluting matter" and Section 25 pertains to "restrictions on new outlets and new discharges" which has vide coverage and empowers the competent authority to enter and inspect the plant, the factory premises and to take action envisaged under the Act. If Section 47 pertaining to offence by Companies is seen it reads as under:
" 47.
Offences by Companies.- (1) Where an offence under this Act has been committed by a company, every person who at the time the offence was committed was in charge of, and was responsible to the company for the conduct of, the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
(2)Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly."
7. Provisio to section 47(1) casts a duty upon the accused to prove his case before the competent Court that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. The cases recorded by learned advocate for the applicants are all arising out of provisions of Negotiable Instruments Act and so far as the decision in the case of Santosh De v. Archna Guha & Ors. [1994 CRI. L.J. 1975] is concerned it was a case of public servant alleged to have possessed disproportionate assets to tune of Rs.2,00,000/- and the trial had taken inordinate delay of 14 years. In the above circumstances, the Apex Court held that powers under Section 482 of the Code can be exercised. So far as decision relied on in the case of Jagdish Chandra v. State of Rajasthan [1999 CRI.L.J. 1090], Herald Stephen Benson v. State of M.P. [1988 CRI.L.J. 1008] and Kanak Mal v. State of Rajasthan [1999 CRI.L.J. 1091] have no doubt persuasive value but have no binding force.
8. That, there is nothing on the record which would go to show that the hearing of the case was adjourned under what circumstances and whether the accused if required to remain present and answer summons issued by the Court below. It is also not the case of the applicants that they were non-executive or nominated Directors of the Company and prima facie, reading of the complaint as a whole would disclose that the applicants were responsible for administration and control of the affairs of the Company and the discharge of effluents due to manufacturing of sulphur and such chemicals were causing pollution as defined under the Act. Since prima facie the case of the complainant is based on the breach of the order passed by the Gujarat Pollution Control Board and also under Sections 24 and 25 of the Act, at this stage I am not inclined to interfere with the proceedings pending before the Court of learned Magistrate and interest of justice will be served if the trial Court is directed to hear the case as expeditiously as possible.
9. Considering the above facts and circumstances and provisio of Section 47(1) of the Water (Prevention and Control of Pollution) Act, 1974 and further the arguments canvassed by learned advocate for the applicants are in realm of defence that can be taken care by the concerned Court while trying the case and with a direction to the Court of learned J.M.F.C to dispose of the case within three months of the receipt of writ, order or direction. Order accordingly.
10. Having no merit, this petition is dismissed with no order as to costs.
[ANANT S. DAVE, J.] //smita// Top