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  IN THE HIGH COURT OF KARNATAKA AT BANGALORE


       DATED THIS THE 10TH DAY OF JANUARY 2013

                          BEFORE

         THE HON'BLE Dr. JUSTICE JAWAD RAHIM

       CRIMINAL REVISION PETITION NO.2084/2005

BETWEEN:

       SRI Y.B.BASAVARAJAPPA
       PROPRIETOR,
       M/S SRI MAMATHA MOSAIC TILES,
       NO.34, (Society.NO.7 & 8),
       BANGALORE - 560 057
                                        ... PETITIONER

  (By Sri, MYLARAIAH,ADV.,)


AND:

  THE KARNATAKA STATE POLLUTION

  CONTROL BOARD,

  REGIONAL OFFICE, BANGALORE NORTH,

  NO.1830/31, Dr.RAJKUMAR ROAD,

  RAJAJINAGAR, BANGALORE (REPRESENTED BY ITS

  DEPUTY ENVIRONMENTAL OFFICER,

  BANGALORE NORTH, SRI A. UDAYAKUMAR

                                       ... RESPONDENT

(By SRI NAGARAJ, ADV.,)
                          *****
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     THIS CRL.RP FILED U/S. 397(1) CR.P.C BY THE
ADVOCATE FOR THE PETITIONER PRAYING THAT THIS
HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE
JUDGMENT CONVICTION AND SENTENCE DT. 9.9.05
PASSED IN CRL.A 48/05 BY THE DIST & S.J., P.O. F.T.C-V,
BANGALORE RURAL DIST., BANGALORE AND ALSO
JUDGMENT AND CONVICTION DATED 5.4.2005 PASSED BY
THE C.J.M., BANGALORE RURAL DIST., BANGALORE IN
C.C.NO.2154/2002.

     THIS CRL.R.P COMING ON FOR FINAL DISPOSAL
THIS DAY, THE COURT DELIVERED THE FOLLOWING

                           ORDER

Convicted accused is in revision against the judgment and Criminal Appeal in 48/2005 on the file of Sessions Judge, Bangalore Rural rejecting it and affirming conviction of the petitioner for the offence punishable under Section 44 of the Water (Prevention and Control of Pollution) Act, 1974 as recorded by the Trial Court in C.C.No.2154/2002.

2. Heard Mr.Mylaraiah, learned counsel for the petitioner and Mr.D.Nagaraj, learned counsel for the respondent and perused the records in supplementation.

3. A perusal of the records reveals, Karnataka State Pollution Control Board through its Deputy Environment Officer A.Udaykumar initiated prosecution of the petitioner 3 through a complaint under Section 200 Cr.P.C., On material allegations that the petitioner, a proprietary concern in the name of Mamatha Mosaic Tiles is owned by Y.B.Basavarajappa and is engaged in manufacturing of mosaic tiles using raw materials such as cement, jelly powder in its manufacturing unit at Site No.34 carved out of Sy.Nos.7 & 8 of Hessaraghatta Main Road near Saptagiri Engineering College, Chikkasandra, Bangalore Rural District. It has commenced such manufacturing activity without obtaining prior consent of the Karnataka State Pollution Control Board (for short 'the Board'). The complainant-Board received complaint that the unit is engaged in such manufacture using stone polishing machines, which emits foul pollutants and noise during the entire day and some times the production continues in the night creating noise pollution like clattering and running of the moulding machines, grinding machines and disturbs the peace and tranquility in the neighborhood. The noise pollution so generated, according to the complainant, was above 125dB(a).

4. It also alleged that it received the complaint that the factory/manufacturing unit is an area of just 140x40 sq.ft. with dwelling unit taking away 40x20sq.ft. and grossly insufficient space for such Unit.

5. In para No.3 of the complaint the Board mentioned, it had called upon the accused who is the proprietor of the Unit on 17.6.2002 to show cause as to why action should not be initiated for contravening the provision of Section 25 of the Act. Despite it, the accused failed to stop such obnoxious activity and continued to generate waste in the manufacturing process, which he dumped on the road side in the residential area causing dust pollution in the entire surrounding.

6. In para No.4 it averred because of such activity the Board by its notice dated 3.9.2002 issued direction under Section 33 A r/w Rule 34 of the Water Rules proposing to issue directions for closing of the unit and also called upon it to stop its activity forthwith. It alleged that the accused-firm failed to comply with the demand necessitating the spot inspection by its officers on 1.10.2002. The inspection confirmed the allegations in the 5 complaint it had received and was factually correct and as the defaulting unit failed to show cause against the proposed directions, it sought for action.

7. The learned jurisdictional Magistrate took cognizance and summoned the accused to answer the charge in which he pleaded not guilty.

8. In the trial that ensued the complainant examined its officer who was the signatory to the complainant as PW1 and introduced in evidence, eight documents. Two witnesses Sudhakar and Nithyananda Kullor were examined in support of evidence of Uday Kumar (PW1). When confronted with incriminating aspects appearing in evidence as required under Section 313 of the Code of Criminal Procedure, the accused put up the defence of denial simplicitor without leading evidence in defence.

9. Analysing the evidence so brought on record, the learned Trial Judge opined prosecution evidence outweighed the defence and convicted him for the offence under Section 44 of the Act for violating Section 25 of the Act but acquitted the petitioner for the offence under 6 Section 43 of the Act. Assailing it he was in appeal before the learned Sessions Judge in Crl.A.No.48/2005 reiterating plea of innocence and also contending that it had applied for grant of consent to the Board through its application on 18.11.2002 and as the Board had not accepted or rejected the application within a period of four weeks, it was deemed consent. The Appellate Judge found no favour with any of these grounds and rejected the appeal confirming the conviction. Assailing both the judgments he is in revision.

10. Sri.Mylaraiah, learned counsel would submit the unit run by the accused has not caused any pollution or nuisance to the residences in the area nor it has contravened any of the provisions of the Act. He would submit the learned Trial Judge rightly acquitted the petitioner of charge for the offence under Section 43 of the Act but erred seriously in convicting him for the offence under Section 44 of the Act. Such conviction, according to him, is unsustainable as the Board had failed to consider that an application seeking prior consent was filed within the statutory period of four weeks. Therefore, it is a deemed consent and when such deemed permission is 7 available to the petitioner-accused under Section 25(7) of the Act; the prosecution is void ab initio. Regarding the evidence on record he would submit it is concoction, as there was no physical inspection. There was no ascertainment of true facts; there was no dispassionate consideration of his plea for grant of consent. Alternatively, the learned counsel would submit that there is no statement in the complaint or in the evidence that the petitioner-accused had violated the terms of license issued under Section 33 (A) of the Act and hence, the prosecution was impacted. Lastly, would submit soon after rejection of the request for grant of prior consent by order dated 21.12.2002 of the Board, the petitioner accused has stopped manufacturing activity and has abandoned the unit. He thus, seeks acquittal.

11. In negation of these grounds Mr.D.Nagaraj, learned counsel for the respondent-Board would submit the accused has been charged not for violating the proposed directions issued under Section 33 (A) of the Act, but has been prosecuted for running the Unit without prior consent of the Board as envisaged under Section 25 of the Act. Therefore, there is no gain in saying that the 8 petitioner has stopped activity and thus has immunity from the prosecution.

12. Contentions of both the sides has received my consideration and on examination of the material on record it could be seen the petitioner has been running the unit much prior to the month of November, 2002. The inspection report of 27.5.2002 would show the Unit of the petitioner was inspected by the officials of the Board, competent to do so and they found the Unit was running, but despite demand the petitioner failed to produce prior consent. Thus, it is evident as per the complaint received by the Court, the Unit was running as on 27.5.2002 and in subsequent inspection done by its officers on 1.10.2002, it was found to be in functional creating noise pollution as also polluting the environment by expelling waste generated in the manufacturing unit out in the streets along side the roads creating hazardous situation for the neighbours.

13. The learned counsel for the respondent-Board was right in contending even assuming that the petitioner accused had submitted an application on 18.11.2002 for 9 prior consent of the Board to run the unit, it had not stopped its activity. The application was rejected by the Board on 21.12.2002.

14. I am satisfied even if the accused had submitted such a request for prior consent it was only on 18.11.2002 whereas the prosecution is for a period earlier to it on the ground that he had not obtained prior consent. The rejection of application on 21.12.2002 is affirmation of the fact that the Unit was running and without prior consent, as on that date.

15. The contention of the petitioner that deemed consent is available to him may be for a period subsequent to November, 2002. But for preceding period in the years earlier, running of Unit is certainly in contravention of Section 25 of the Act, which constitutes an offence punishable under Section 44 of the Act.

16. The learned Trial Judge has examined the material evidence on record with reference to documents to conclude the petitioner was guilty of the offence under Section 45 of the Act.

17. As referred to in the para supra, I have heard Mr.Mylaraiah, learned counsel at length and Mr.D.Nagaraj, learned counsel for respondent.

18. Nothing emerges from the arguments of the defence nor the defence could salvage anything from the testimony of the prosecution witness that the charge raised against it has not been proved beyond reasonable doubt. As the charge rests totally on the ground that it has not obtained prior consent, the accused had a burden to establish he had obtained prior consent of the Board. The fact that subsequently application was filed for prior consent on 18.11.2002 would show the period preceding 2002, he had not applied for such prior consent, which omission falls within the mischief of Section 25 of the Act and he has no escape as he becomes punishable under Section 44 of the Act. Thus, the Trial Court was right in convicting him and Appellate Court was also justified in affirming the conviction.

19. I find the grounds urged in the petition do not merit interference of the concurrent finding recorded by the Trial Court and the petition must fail. 11

20. Now coming to the quantum of punishment, as could be seen from the provisions of the Act the punishment prescribed under Section 44 of the Act is imposing imprisonment for a term, which shall not be less than one year and six months but which may be extended up to six years and with fine. As minimum sentence is already prescribed we have no discretion. Consequently, sentence of imprisonment of one year and six months imposed by the Trial Court is affirmed as also order regarding fine with a default sentence. Revision therefore, fails.

Sd/-

JUDGE SS