IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 3880 of 2009()


1. ANNIE THOMAS, W/O. THOMAS P.A.,
                      ...  Petitioner

                        Vs



1. SUB INSPECTOR OF POLICE,
                       ...       Respondent

                For Petitioner  :SRI.G.HARIHARAN

                For Respondent  : No Appearance

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :16/12/2009

 O R D E R
                     M.SASIDHARAN NAMBIAR, J.
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                        Crl.M.C.No.3880 of 2009
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             Dated this the 16th day of December, 2009

                                   ORDER

Petitioner is the accused in C.C.No.57/2009 on the file of Judicial First Class Magistrate Court, Chalakkudy taken cognizance for the offence under Section 291 of the Indian Penal Code and Section 24(1) read with Section 43 of the Water (Prevention and Control of Pollution Act, 1974) on Annexure-IV final report. The petition is filed under Section 482 of the Code of Criminal Procedure to quash the proceedings contending that in view of compliance of the conditions provided in Annexure-III order continuation of the prosecution is abuse of process of the court.

2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard.

3. The argument of the learned counsel appearing for the petitioner is that Annexure-IV communication sent by the Environmental Engineer of Kerala State Pollution Control Board to the Sub Inspector of Police, who is investigating the case, establishes that the sample examined at the laboratory establish that it is not a hazardous waste as provided under the Central Government Hazardous Waste (Management and Handling)Rule  1989, as it is within the limit and the said waste could be used for filling up the earth and in such circumstances, the continuation of the proceedings is only an abuse of prosecution.

4. Learned counsel also argued that by Annexure-III order passed by the learned Magistrate while granting interim custody of the vehicle it was directed by the learned Magistrate that petitioner shall deposit the waste material in accordance with the directions of the Pollution Control Board already issued, in the presence of the village/panchayat authorities and produce a certificate by the village/panchayat authorities to that effect within three days and petitioner has complied with the direction as well.

5. The learned Public Prosecutor pointed out that the Engineer who issued Annexure-IV letter is one of the witnesses to be examined as per the final report in the case and Annexure-IV shows that even though percentage found in the sample is within the limit as provided under the Central Government Hazardous Waste (Management and Handling)Rule 1989, if it is flown into the water or enters underground, it would cause pollution of water and in such circumstances, it cannot be said that no offence is attracted.

6. On hearing the learned counsel appearing for the  petitioner and the learned Public Prosecutor, I do not find that based on Annexure-III order or Annexure-IV communication the final report is to be quashed or the cognizance taken to be set aside. When the offence was committed, subsequent removal of the waste pursuant to Annexure-III order will not enable the petitioner to get the final report quashed. Petitioner is at liberty to raise all the contentions before the learned Magistrate at the time of trial.

Petition is dismissed.

M.S.SASIDHARAN NAMBIAR, JUDGE cms