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IN THE COURT OF SH. DEEPAK WASON:
ACMM (SPL. ACTS): CENTRAL DISTRICT: THC: DELHI
CC No. 537988/2016
DPCC Vs. Mahesh Kumar
JUDGEMENT
(a)Serial no. of the case : 537988/2016
(b)Date of commission of offence : 17.07.1998 & 16.09.1998
(c)Name of complainant : Sh. I.K. Kapila
Sr. Environmental Engineer
Delhi Pollution Control Committee,
IV th Floor, ISBT
Building, Delhi
(d)Name, parentage, residence Mahesh Kumar
of accused Proprietor of Sonia Leather,
R/o A-2/14, Paschim Vihar,
New Delhi.
(e)Offence complained of/ proved : U/s. 43/44/41 of the Water (Prevention & Control of pollution) Act, 1974 for the contravention of Sections 24/25/26/33A of the Act.
(f)Plea of accused : Pleaded not guilty.
(g)Final order : Convicted for the offences u/s
43/44/41 of the Water Act
for the violation of Sections
24/25/26 & 33 A of the Act.
(h)Date of such order : 11.01.2017
Date of institution of complaint : 21.12.1998
Date of Reservation of Judgment : 11.01.2017
Date of Pronouncement of Judgment : 11.01.2017
Brief statement of the reasons for the decision:-
1. The complainant i.e Delhi Pollution Control Committee (in CC no. 537988/2016 DPCC Vs. Mahesh Kumar Page 1 of 8 short DPCC) filed the present complaint against the accused Mahesh Kumar (Proprietor of M/s. Sonia Leather) through Sh. I.K. Kapila, the then Sr. Environmental Engineer.
2. It is stated in the complaint that the complainant is presently working as a Senior Environmental Engineer in DPCC and is a Public Servant by virtue of section 50 of the Water Act of 1974 (in short the 'Act'). It is further stated in the complaint that complainant is authorized to file the complaint by the Delhi Pollution Control Committee.
3. It is further stated in the complaint that by discharging sewage or trade effluent into a stream or well or sewer or on land, Mahesh Kumar has contravene the provisions of Section 26 of the Act which is punishable under Section 44 of the Act. It is further stated in the complaint that since the respondent has committed offences under Section 24/25/26 of the Act, directions under Section 33 (A) was issued to the respondent and other authorities vide registered letter dated 19.08.1998. It is further stated in the complaint that as per H category, industry run by accused comes under the same. It is further stated in the complaint that finding himself in great difficulty in view of the order dated 19.12.1996 conveyed on 24.12.1996 and other orders passed by Hon'ble Supreme Court of India, accused has changed the name of his industry from Modern Leather to Sonia Leather to nugate the orders of the Hon'ble Apex Court. It is further stated in the complaint that despite the service of the directions under Section 33 A of the Act upon the accused, he continued with the illegal activities and in gross violation of the provisions of the Act. Hence, present complaint.
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4. Complaint was filed by the complainant. After taking cognizance, accused Mahesh Kumar was summoned being the Proprietor of M/s. Sonia Leather. After his appearance, accused was granted bail and vide order dated 06.07.1999, a charge under Section 41/42/43 of the Act for the violation of Sections 24/25/26 & 33 A of the Act was framed against the accused Mahesh Kumar. It is a matter of record that it is a warrant trial case and charge should not have been framed without leading pre-charge evidence. But, facts remain the same that clock cannot be put back.
5. It is also a matter of record that during the trial accused did not appear and he was declared PO during the proceedings. It is also a matter of record that accused was arrested on 16.07.2016 and he was granted bail and thereafter, matter was adjourned for pre-charge evidence. On 06.12.2016, an application for substitution of AR was moved on behalf o the complainant for substituting Dr. B.M.S. Reddy, Sr. Environmental Engineer to substitute the previous complainant. The said application was allowed.
6. In pre-charge evidence, complainant has examined one witness. CW-1 is Dr. B.M.S. Reddy, Sr. Environmental Engineer, DPCC. CW-1 has deposed the present complaint Ex. CW-1/1 was filed by DPCC through Sh. I.K. Kapila, the then Sr. Environmental Engineer and who is not in service, whose signatures he can identify as he has worked with him. The complaint bears his signatures at point A. He has further deposed that the Water Act, 1974 was framed by the Central Govt. for the Prevention & Control of Water Pollution and to maintain wholesomeness of the Water bodies. He has further deposed that the complainant Sh. I.K. Kapila was working as a Sr. Environmental Engineer in DPCC and was a public servant by virtue of Section 50 of the Water Act, 1974 (in CC no. 537988/2016 DPCC Vs. Mahesh Kumar Page 3 of 8 short the 'Act') and by virtue of notification issued by Central Government dated 15.03.1991, all the powers vested in the Central Pollution Control Board (CPCB) to the DPCC in respect to Union Territory of Delhi. The copy of the said notification is Ex. CW-1/2. He has further deposed that the complainant was authorized by the DPCC to file the complaint with the prior approval of the Chairman dated 01.12.1998 as required by the office order dated 25.06.1998, Ex. CW-1/3. He has further deposed that on 17.07.1998, Sh. P.S. Pankaj, the then AEE visited the premises bearing no. 52/24, Nihal Vihar, Nangloi and found that accused was occupier of the premises in question and was having the control over the affairs of M/s. Sonia Leathers and was found engaged in the activity of Wet Blue Tanning and discharging trade effluent without any treatment facility as well as the consent from the DPCC which is a State Board. He has further deposed that the inspection report Ex. CW-1/4 was prepared by Sh. P.S. Pankaj and based on the findings of the said inspection, the directions were issued under Section 33 (A) of the Water Act read alongwith Rule 34 (6) of the Rules 1975 framed thereunder vide letter dated 19.08.1998, Ex. CW-1/5. He has further deposed that the same was conveyed to the accused vide postal receipt is Ex. CW-1/6 and thereafter an inspection of the unit was again carried out by him on 16.09.1998 and found that unit was in operation despite the directions issued by DPCC vide Ex. CW-1/5 and said inspection report is Ex. CW-1/7. He has further deposed that it was also observed that the accused has changed the name of the firm from Modern Leather to Sonia Leather which was figuring in the order of Hon'ble Supreme Court of India dated 24.12.1996, which had ordered closure of the accused unit. He has further deposed that as per his inspection also, the accused unit was found to be operating without requisite Pollution Control System as well as the consent from DPCC and accordingly, accused has violated the CC no. 537988/2016 DPCC Vs. Mahesh Kumar Page 4 of 8 provision of Section 24/25/26 & 33 (A) of the Act. This witness was cross-examined by the accused.
7. Thereafter, charge was framed against the accused regarding contravention of Section 24/25/26 & 33 A of the Water Act, 1974.
8. In post-charge evidence, complainant has examined only one witness i.e Dr. B.M.S. Reddy, Sr. Environmental Engineer, DPCC. This witness has adopted the same examination-in-chief which was recorded in pre-charge evidence. Accused has also adopted the same cross-examination which was recorded in pre-charge evidence. Thereafter, post-charge evidence was closed.
9. Statement of accused was recorded. In his statement accused denied all the allegations and stated that he has been falsely implicated in this case. However, accused opted not to lead any defence evidence.
10. I have given my thoughtful consideration to the submissions advanced on behalf of the parties and have gone through the relevant records. I have also gone through the relevant provisions of Water (Prevention & Control of Pollution) Act, 1974.
11. The relevant provisions of section 24/25 & 26 of the Water (Prevention & Control of Pollution) Act, 1974 are reproduced for ready reference:-
24. Prohibition on use of stream or well for disposal of polluting matter, etc.- (1) Subject to the provisions of this section, -
(a)no person shall knowingly cause or permit any poisonous, noxious or polluting matter determined in accordance with such standards as may be laid down by the State Board to enter (whether directly or indirectly) into any [stream or well or sewer or on land], or CC no. 537988/2016 DPCC Vs. Mahesh Kumar Page 5 of 8 0(b)no person shall knowingly cause or permit to enter into any stream any other matter which may tend, either directly or in combination with similar matters, to impede the proper flow of the water of the stream in a manner leading or likely to lead to a substantial aggravation of pollution due to other causes or of its consequences.
25. Restrictions on new outlets and new discharge
- [(1) Subject to this provisions of this section, no person shall, without the previous consent of the State Board, -
i. establish or take any steps to establish any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, which is likely to discharge sewage or trade effluent into a stream or well or sewer or on land (such discharge being hereafter in this section referred to as discharge of sewage); or ii. begin to make any new discharge of sewage
26. Provision regarding existing discharge of sewage or trade effluent. - Where immediately before the commencement of this Act any person was discharging any sewage or trade effluent into a [stream or well or sewer or on land], the provisions of section 25 shall, so far as may be, apply in relation to such person as they apply in relation to the person referred to in that section subject to the notification that the application for consent to be made under sub-section (2) of that section [shall be made on or before such date as may be specified by the State Govt. by notification in this behalf in the Official Gazette].
12. Complainant has to prove that accused being the Proprietor of M/s. Sonia Leather was found engaged in Wet Blue Tanning (H- category unit), a water polluting activity, without obtaining consent from the concerned department and there was no effluent treatment plant to treat waste water and by discharging the untreated effluent from the said unit into a drain / sewer caused pollution and thereby contravened the provision of the Water Act. To support its case, complainant has examined only one witness. This witness has specifically deposed that on 17.07.1998, Sh. P.S. Pankaj, the then AEE visited the premises bearing no. 52/24, Nihal Vihar, Nangloi and found that accused was occupier of the premises in question and was having the control over the affairs of M/s. Sonia Leathers and was found engaged in the activity of Wet Blue Tanning CC no. 537988/2016 DPCC Vs. Mahesh Kumar Page 6 of 8 and discharging trade effluent without any treatment facility as well as the consent from the DPCC. This witness has further deposed that Sh. P.S. Pankaj prepared the inspection report and said report has been duly proved as CW-1/4. This witness has identified the signature of Sh. P.S. Pankaj being worked with him. This witness has specifically deposed that an inspection of the unit was again carried out by him on 16.09.1998 and found that unit was in operation despite the directions issued by DPCC vide Ex. CW-1/5 and said inspection report is Ex. CW-1/7. This witness has further deposed the accused unit was found to be operating without requisite Pollution Control System as well as the consent from DPCC and accordingly, accused has violated the provision of Section 24/25/26 & 33 (A) of the Act.
13. This witness was cross-examined by the accused. Only suggestion was given in the cross-examination that unit was closed in the year 1998. Except suggestions, nothing important was put to the witness to impeach his credibility. Even otherwise, cross- examination of witness shows that accused is not disputing about the inspections carried out by the complainant. The only plea taken by the accused is that he has closed the unit. As per cross- examination of CW-1, complainant department visited the premises in question in the year 2007 and at that time, unit was not operating. A suggestion was also given that unit was closed in the month of December 1998. Hence, by mere closing the unit, it cannot be said that the accused has not committed any offence. Accused has nowhere denied that no inspections were carried out or accused was not running any unit as claimed by the complainant. Hence, I do not find any reason to disbelieve the statement of witness. CW-1 has duly supported the case of the complainant.
CC no. 537988/2016 DPCC Vs. Mahesh Kumar Page 7 of 8
14. In view of the aforesaid facts and circumstances, it is held that the complainant has proved its case beyond reasonable doubt against the accused. Accordingly, accused Mahesh Kumar is held guilty and convicted for offences punishable under sections 43/44/41 of the Act for the violation of Sections 24/25/26 & 33 A of the Water Act, 1974.
15. Let convict be heard on sentence.
(Deepak Wason) ACMM (Spl Acts): Central District Tis Hazari Courts: Delhi Announced in open Court today i.e 11th January, 2017.
CC no. 537988/2016 DPCC Vs. Mahesh Kumar Page 8 of 8 CC no. 537988/2016 DPCC Vs. Mahesh Kumar Page 9 of 8 CC No. 537988/2016 DPCC Vs. Mahesh Kumar 11.01.2017 Present: Sh. Nilesh Sahani, Ld. counsel for the complainant with Ms. Jitender Gaba i.e AR of the complainant.
Sh. Vijay Sehgal, Ld. counsel for the accused with accused on bail.
CW-1 Dr. B.M.S. Reddy, Sr. Environmental Engineer (CDC), DPCC is present and examined, cross-examined and discharged in post-charge evidence.
At request of AR, post-charge evidence stands closed. Statement of accused recorded separately.
It is submitted by Ld. defence counsel that accused does not want to lead defence evidence.
Final arguments heard. Record perused.
Vide separate order dictated to the steno in the open court, accused Mahesh Kumar is held guilty and convicted for offences punishable under sections 43/44/41 of the Water Act, 1974 for the violation of Sections 24/25/26 & 33 A of the Water Act, 1974.
At the request of the convict, arguments on sentence heard today itself.
It is submitted by convict that he is 60 years of age. It is further submitted by him that he has a family to be maintained by him and if he be sent to jail, his family would be ruined. It is further submitted by him that he is suffering from various ailments. It is further submitted by him that he has closed the unit in the year 1998 in compliance of the order of Hon'ble Supreme Court of India. It is further submitted by him that in the year 2007, complainant department had visited the premises in question and found that CC no. 537988/2016 DPCC Vs. Mahesh Kumar Page 10 of 8 building was dismantled and no unit was not operating from the premises and requested that he be released on probation.
On the other hand, AR of the complainant has requested that strict view be taken against the convict.
Keeping in view the facts and circumstances of the case, age of the accused and the fact that unit is closed, I am of the view that interest of justice would be met, if a lenient view is taken against him and he be released on probation. Help can also be taken from the judgment dated 30.10.2014 having no. CRL.A. 1344/2014 titled as Delhi Pollution Control Committee Vs. A- One Automobile & Ors of Hon'ble High Court of Delhi, wherein accused in that case was also granted probation by Hon'ble High Court of Delhi.
Accordingly, convict is released on probation on furnishing a personal bond in the sum of Rs. 15,000/- with one surety in the like amount for a period of six months. Convict is also directed to receive the sentence as and when called upon during the said period and in the meantime, he is directed to maintain peace and good behavior in the society and not to commit the same offence for the above said period. He is further directed to pay a sum of Rs.80,000/- to the complainant as a compensation for Environmental Damages.
Cost of Rs. 80,000/- to the AR of the complainant vide receipt no. GAR6 no. 065 dated 11.01.2017.
Probation bond furnished & accepted.
Copy of judgment as well as order on sentence be given to the convict. Copy of order be also given to the complainant, as prayed for.
File be consigned to Record Room, after
necessary compliance.
CC no. 537988/2016 DPCC Vs. Mahesh Kumar Page 11 of 8
(Deepak Wason)
ACMM (Spl. Acts):Central District:
THC: Delhi: 11.01.2017
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