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SCR.A/1738/2009	 3/ 3	ORDER 
 
 

	

 

IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
 

 


 

SPECIAL
CRIMINAL APPLICATION No. 1738 of 2009
 

 
 
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GUJARAT
POLLUTION CONTROL BOARD - Applicant(s)
 

Versus
 

HARIJAY
FUR FABRICKS PRIVATE LIMITED & 6 - Respondent(s)
 

=========================================================
 
Appearance
: 
MR
SUNIL L MEHTA for
Applicant(s) : 1, 
MS ANUJA S NANAVATI for Respondent(s) : 1,4 -
6. 
NOTICE SERVED for Respondent(s) : 2 - 3. 
MR KP RAVAL, APP
for Respondent(s) :
7, 
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CORAM
			: 
			
		
		 
			 

HONOURABLE
			MR.JUSTICE AKIL KURESHI
		
	

 

 
 


 

Date
: 26/02/2010 

 

 
ORAL
ORDER

This petition has been filed by Gujarat Pollution Control Board ('GPCB' for short). Petitioner challenges an order dated 28.05.2009 by which learned Additional Sessions Judge, Bharuch allowed the revision application of respondents No.1 to 6 herein who are the original accused.

Accused are facing charges of starting polluting industries without proper permissions. The learned Magistrate by his order dated 06.12.2006 ordered framing of charge under Sections 24, 25, 43, 44 and 47 of Water (Prevention & Control of Pollution) Act. Accused challenged the said order before the learned Additional Sessions Judge who by the impugned order allowed the revision application and set aside the order for framing of charge. It is not in dispute that the entire order of the learned Additional Sessions Judge was passed on one single ground namely that as held by this Court in 2002(2) GLR 1580, there was no proper sanction for prosecution.

Learned counsel for the petitioner, however, pointed out that the above view of the High Court namely that sanction and approval are two separate and independent aspects, has not been approved by the Apex Court in the recent judgment rendered in case of Gujarat Pollution Control Board v. Nicosulf Industries & Export Private Limited reported in 2009(2) SCC 171 wherein it is held and observed as under:

17. The High Court has held that the power to sanction a complaint is distinct from the power to authorize the complaint. This view is clearly unsustainable for the reason that if the provisions are construed in the context that as a check over the complaint filed, then the grant of sanction to file a complaint would be in law an authorization to file the complaint. The stand of the appellant is that the difference between sanction and authorization in the context of provisions of the Act and in contradistinction to the provisions of IPC and the Code is more semantic than real. The stand is well founded.

To the above aspect, learned counsel for the private respondents was also not in a position to raise any dispute. The legal position having been clarified, the order of the learned Additional Sessions Judge quashing the order of the Magistrate for framing of charge, therefore, cannot sustain. The same is, therefore, required to be set aside.

Learned counsel for the accused, however, submitted that original accused No.4 is aged about 85 years and is residing at Mumbai. Accused Nos.5 and 6 are married ladies also residing at Mumbai. The factory was situated at Ankleshwar. The industry has become sick and the factory is closed down since long. These accused even otherwise did not have control over the day to day functioning of the factory. He, therefore, submitted that complaint against such accused should not be allowed to proceed. In the present petition, for want of any material in support of the above contentions and consequential prayer, I make no observations leaving it open to them to seek remedy in accordance with law.

Subject to above observations, petition is allowed. Impugned order dated 28th May 2009 is set aside.

(Akil Kureshi, J.) menon     Top