JUDGMENT S. Chatterji, J.

1. This revision application arises out of the order dated 20th July, 1993 made by the learned Chief Metropolitan Magistrate, Ahmedabad, in Criminal Case No. 348 of 1990 discharging the accused without framing the charges. Being aggrieved and dissatisfied with the impugned order, the original complainant has come to this Court inter alia contending that the learned Magistrate has passed the order which is contrary to law and there is material irregularity and illegality in the exercise of the jurisdiction by the learned trial Magistrate.

2. It is contended in detail that a notice was issued to the respondent No. 1 for the alleged violation of provisions of Sees. 24, 25 and 26 of the Water (Prevention and Control of Pollution) Act, 1974 (hereinafter referred to as 'the Act'). By the impugned order the learned Magistrate had been pleased to hold that the taking of samples of effluent was not proper and in the manner as provided under Section 21(2) of the Act and for contravention, the result of any analysis of the samples is not admissible in evidence. Having discussed the evidence, both documentary as well as oral, the learned Magistrate discharged the accused and disposed of the case by his impugned judgment.

3. The Learned Counsel for the respondents Nos. 1 to 4 submits inter alia that there is contravention of the mandatory provision and there is nothing for this Court to interfere with the order passed by the learned Magistrate. The learned Public Prosecutor has submitted that in view of the material on record this Court may decide the matter on merit of the case.

4. Having heard the learned Advocates and the learned Public Prosecutor in depth and detail, this Court finds that Section 21(2) of the aforesaid Act, inter alia, provides that the result of any analysis of a sample of any sewage or trade effluent taken under Sub-section (1) shall not be admissible in evidence in any legal proceeding unless the provisions of sub-sees. (3), (4) and (5) are complied with. It is thus clear that for the purpose of compliance of Section 21(2) of the Act there must be substantial compliance of the provisions of sub-sees. (3), (4) and (5) of the Act. It is important to look at Sub-section (5) of Section 21, which inter alia provides that when a sample of any sewage or trade effluent is taken for analysis under Sub-section (1) and the person taking the sample serves on the occupier or his agent a notice under Clause (a) of Sub-section (3) and the occupier or his agent who is present at the time of taking the sample does not make a request for dividing the sample into two parts as provided in Clause (b) of Sub-section (3), then, the sample so taken shall be placed in a container which shall be marked and sealed and shall also be signed by the person taking the sample and the same shall be sent forthwith by such person for analysis to the laboratory referred to in Sub-section (1) or Sub-clause (ii) as the case may be, of Clause (d) of Sub-section (3).

5. On perusal of materials on record, it appears that the attention of the trial Court was not drawn to Sub-section (5) of Section 21. The mandatory provision of Section 21(2) has to be considered alongwith Sub-section (5) of Section 21 of the Act. The material on record indicates that proper steps were taken as per Section 21(1) of the Act and it was premature for the learned Magistrate to dispose of the case. At the out set this Court thought that the matter could be disposed of by permitting the petitioner to proceed afresh. However, on the scrutiny of the material on record and considering the submissions made before this Court by the learned Advocates for the parties, this Court finds that proper steps were taken and the learned trial Magistrate has committed material irregularity in the exercise of jurisdiction by discharging the accused and by not framing the charge. There is sufficient merit in the contention of the learned Advocate for the petitioner. The learned Public Prosecutor submitted that the matter may be decided on merits. This Criminal Revision Application, therefore, deserves to be considered.

6. In the result, this Criminal Revision Application is allowed. The impugned order is quashed and set aside. The trial Court will proceed further in the matter from the stage from where the accused were discharged, in accordance with law. Rule is accordingly made absolute with no order as to costs. It is clarified that this Court has not made any observation on the merit of the case so as to avoid prejudice in any manner to any of the parties. It is also made clear that any observation of this Court in this case will neither prejudice nor stand weighed with the learned trial Magistrate in disposing of the aforesaid matter, in accordance with law.