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IN THE COURT OF Dr. KAMINI LAU: SPECIAL JUDGE
(P.C. ACT) CBI01 (CENTRAL):TIS HAZARI COURTS: DELHI
Criminal Appeal No. 06/2017
Raj Kumar Gupta
Sole Proprietor of M/s Kanwarji Raj Kumar
Shop at 197273, Gali Parathe Wali,
Chandini Chowk, Delhi - 110 006.
................ Appellant
VERSUS
Delhi Pollution Control Committee (DPCC)
4th Floor, ISBT Building, Kashmere Gate
Delhi110 006. (Through its Principal Office)
.............. Respondent
Date of Institution : 24.05.2017
Judgment Reserved on : 02.08.2017
Judgment Pronounced on : 11.08.2017
JUDGMENT:
(1) This appeal impugns the judgment dated 20.04.2017 passed by Ld. ACMM (Special Acts), Tis Hazari Courts, in CC No. 519825/2016 titled as "Delhi Pollution Control Committee vs. Kanwarji Raj Kumar" convicting the appellant for the offence under Section 24 and 25 read with Section 26 of Water (Prevention & Control of Pollution) Act, 1974 and order on sentence dated 25.04.2017 sentencing the appellant to Simple Imprisonment for three years and Raj Kumar Gupta Vs. Delhi Pollution Control Committee Page No. 1 of 15 fine for sum of Rs.1,00,000/ (Rupees One Lakh only) for the offence under Section 24 punishable under Section 43 and under Section 26 read with Section 25 punishable under Section 44 of Water (Prevention & Control of Pollution) Act, 1974, and in default of payment of fine, shall liable to further undergo Simple Imprisonment for one month.
(2) This appeal has been filed on the ground that the judgment of the Trial Court is erroneous and the sentence imposed upon him is extremely harsh. Before coming to the grounds of the appeal on merits, the brief case of the complainant Delhi Pollution Control Committee (DPCC) are that the appellant / accused Raj Kumar Gupta is running an industrial unit in the name and type of "Kanwar Ji Raj Kumar" which unit was inspected by the vigilance squad constituted under the provisions of Water (Prevention & Control of Pollution) Act, 1974, consisting of S.D.M. (Environment) Sh. Ajay Chagti and Engineers of DPCC along with staff of SDM. During inspection, the appellant/ accused was found to be occupier of the unit which was in operation and no treatment facility was provided for trade affluent generated during the washing process of sweets / namkeens preparation moulds / containers / utensils / etc. which were being discharged by the unit without treatment into the public sewer. Further, the appellant / accused was operating this unit without obtaining requisite consent from DPCC and without installing ETP or any other pollution control device and hence DPCC had filed the complaint before the competent court under the provisions of Section 24/25/26/33A read with Section Raj Kumar Gupta Vs. Delhi Pollution Control Committee Page No. 2 of 15 41/42/43/44 & 49 of the Water (Prevention & Control of Pollution) Act, 1974.
(3) The appellant / accused was summoned after which the prosecution has examined the complainant Shyam Sunder, Assistant Environmental Engineer of DPCC as CW1 and Sh. Ajay Chagti, Additional Secretary, IT Department as DW2, in precharge evidence. Both the above witnesses were exhaustively cross examined in the post charge evidence after which statement of appellant / accuse was recorded under Section 313 read with 281 Cr.PC wherein he had denied all the allegations and also tendered himself as his own witness in defence as DW1.
(4) After considering the submissions made before it, Trial Court had passed the impugned judgment and order on sentence which are now under challenge on the ground that the appellant had been running a sweet / namkeen unit since long (even before independence) which had been established by his father and grandfather and he used to make some kind of sweets / namkeens in his premises only to serve fresh namkeens to his customers. It is pleaded that the premises in which the unit is being run is a tenant premises and the appellant is paying admitted rent to the owner / landlord of the premises where the shop is situated. It is further pleaded that on 14.10.1999 the respondent no. 1 / DPCC vide a public notice published in the Hindustan Times issued certain directions whereby all polluting units located in the industrial as well as nonconforming areas of Delhi were directed to be put up individual effluent treatment plant for treating their effluent prior to Raj Kumar Gupta Vs. Delhi Pollution Control Committee Page No. 3 of 15 discharging it on or before first November, 1999 so as to meet the prescribed standard of Central Pollution Control Board. It is submitted that the appellant was not aware of the said notice till 3.6.2000 when the inspection was conducted and soon after coming to know of the same, the appellant had complied with the said directions and installed an independent effluent treatment plant. It is submitted that despite due compliance of the directions by the appellant, the present complaint has been filed. It is pleaded that on 21.6.2000, DPCC has also issued another circular published in the newspaper directing the owners of the eating places, dhabas, small restaurants etc. in Delhi to control water pollution by segregating the solid material while washing utensils and install an Effluent Treatment Plant within one month, consisting of settling tank cum oil and grease trap for holding the effluent for about four hours, failing which the said shop, eating joints, etc, shall be liable for closure. It is pleaded that for the first time the respondent has set requisite standard for all the eating places, dhabas, restaurants, etc. in order to control water pollution under the Water (Prevention & Control of Pollution) Act, 1974, advertisements, public notices and pursuant to the same the Effluent Treatment Plant and Trap had been installed. It is submitted that the complaint is premature which is even prior to expiry of one month for complying with the required standards set by the DPCC / Respondent. It is further pleaded that none of the ingredient of Sections 24/25/26 of Water (Prevention & Control of Pollution) Act, 1974 have been satisfied and the Trial Court has erred in convicting the appellant since the Trial Court had failed to appreciate that the Raj Kumar Gupta Vs. Delhi Pollution Control Committee Page No. 4 of 15 complainant had no prior permission from the Chairman, DPCC and there was no authorization of Junior Engineer (Environment) to file the complaint. It is further pleaded that the Ld. Trial Court has erroneously placed its reliance upon the judgment passed by the Hon'ble Delhi High Court in the case of Delhi Pollution Control Committee vs. AOne Automobile & Ors. (Crl. L.P. No. 687/2013/2013) dated 23.09.2014 holding that the said order decided the similar issue despite the fact that the order in fact was distinguishable on facts. It is further pleaded that prior approval is the sine qua non for devolution of powers onto officers such as CW1 who has no authority to file the present complaint. It is further pleaded that the Ld. Trial Court has failed to appreciate the fact that the investigation carried out was by local authority and without any authorization and even otherwise there was no allegations against the appellant that he was knowingly causing water pollution or permitting any poisonous, noxious or polluting matter determined in accordance with such standard as laid down by the DPCC to enter into any stream or well or on land on 03.06.2000. It is further pleaded that the complainant has failed to prove that the alleged affluent / material if any, were poisonous, noxious or polluting and hence the ingredients of Section 24 of Water (Prevention & Control of Pollution) Act, 1974 would not have been invoked. According to the appellant the Ld. Trial Court has failed to appreciate that there was no allegation to the effect that the appellant had discharged any affluent in the public sewage before commencement of the Act i.e. before 1974 and therefore not only the cognizance of Raj Kumar Gupta Vs. Delhi Pollution Control Committee Page No. 5 of 15 Section 26 of Water Act is bad in law but the conviction of the appellant under Section 26 of Water Act is illegal and misconceived. It is further pleaded that the Ld. ACMM has failed to apply its mind to the facts before it and the complainant has failed to produce on record evidence in the form of photographs / videography to prove the allegations made against the appellant. It is further alleged that no samples were taken during inspection dated 03.06.2000 to prove the offence under Section 24 /26 of Water Act and the inspection report is nothing but fallacious document.
(5) On the other hand the respondent has in its reply on merits denied the grounds raised by the appellant and stated that the appeal is devoid of merits and is liable to be dismissed. It is submitted that the appellant had given his statement under Section 313 Cr.PC but chose not to lead any evidence in support of his allegations. It is submitted that the appellant in his statement has categorically admitted that on 3.6.2000, the appellant was preparing and selling the sweets and namkeens and on 3.6.2000 inspection did not take place and on the said date he did not have any Effluent Treatment Plant installed and also had no consent from the DPCC to operate and run the business. It is submitted that three defences had been taken by the appellant / accused firstly that the notification detailing the plan for setting up an ETP was advertised in the newspaper on 21.06.2000, secondly alternative defence that vide order dated 11.10.2000 small business like the appellant were exempted from obtaining consent and thirdly the business of appellant is a nonconforming area where consent was not Raj Kumar Gupta Vs. Delhi Pollution Control Committee Page No. 6 of 15 required to be obtained, are all of mutually destructive to each other. Reliance is placed by the respondent on the various orders placed on record, particularly order dated 27.08.1999, 13.09.1999 and 24.01.2000 in Writ Petition (Civil) No. 725/1994 wherein the Hon'ble Supreme Court did not distinguish between polluting units in conforming and nonconforming areas only directed that appropriate action be taken to close such units. It is further pleaded that on merits the ignorance of law is not an excuse as the plea taken by the appellant that he only became aware of the law when his premises was inspected on 3.6.2000. It is submitted that both the impugned judgment as well as order sentence are well reasoned orders and have been passed by due application of mind.
(6) I have considered the rival submissions and the grounds raised in the present appeal and also perused the impugned judgment and order on sentence as well as the Trial Court record and at the very Outset I may observe that in so far as the appellant is concerned, he does not deny that on the date of inspection i.e. 3.6.2000, sweets / namkeen shop accused no. 1 M/s Kanwarji Raj Kumar and accused no. 2 Raj Kumar Gupta was in operation at the spot and the said premises were inspected by the vigilance squad consisting of SDM and the Engineers of DPCC along with the staff of SDM.
(7) Secondly it is also not denied that no facility for the treatment of affluent generated during washing process was installed at the site nor any evidence of such a treatment facility at the time of the inspection, has been produced. In fact the appellant does not deny that Raj Kumar Gupta Vs. Delhi Pollution Control Committee Page No. 7 of 15 on the date of the inspection no such facility had been installed at the spot.
(8) Thirdly it has been established from the evidence which has come on record that the entire trade affluent generated during the washing process of sweets / namkeens preparation moulds / containers / utensils / etc. were being discharged in to the Municipal Sewer Lines by the unit without treatment. In this regard the cross examination of the accused / appellant becomes relevant, which is as under:
".......... The manufacturing is being done in the kitchen area and sales are carried out in the shop which is situated in the Fatehpuri Chowk, Delhi. The kitchen is situated at 197273 Chandni Chowk, Delhi6. It was situated at the same address even in the year 200001. The kitchen was and till connected to the Municipal Sewer Line. My annual average production for the year 200001 as per my ST Return was 400 kg per day (approximately). The manufacturing process employed in the kitchen involves frying as well. The raw material is brought into the kitchen and same is brought to the stage of finished products by employing various processes and all such processes are carried out in the kitchen only. It is correct that as on 03.06.2000 neither oil and grease trap plant nor any ETP was installed in our kitchen. It is correct that as on 03.06.2000 I was not having any consent from DPCC for establishing, operating or maintaining the aforesaid kitchen / workshop. ......"
(9) The appellant / accused has further in his cross examination admitted that the entire area in his possession is being used for kitchen / Raj Kumar Gupta Vs. Delhi Pollution Control Committee Page No. 8 of 15 manufacturing / storing of raw material. The relevant portion of his cross examination I quot as under:
"........... I cannot say the exact / approximate area of my kitchen. It is correct that the entire area in our possession is being use for kitchen / manufacturing/ storing of rawmaterial purposes. Though we had plants in pots in the premises but we were not maintaining any terrace garden or kitchen garden. ........... "
(10) The appellant / accused in his further cross examination has identified his signatures on the inspection report Ex.CW1/1 despite claiming that he was not present at spot at the time of inspection. The relevant portion of his cross examination I quot as under:
"..... I am not aware of the English and I signed the inspection report Ex.CW1/1 at the instance of the complainant. I have not been read over the contents of Ex.CW1/1. It is wrong to suggest that the contents of the Ex.CW1/1 was know to me a the time of putting my signatures. It is incorrect to suggest that on 03.06.2000 inspection was conducted in my aforesaid premises in my presence. It is correct that I put my sign on Ex.CW1/1 on 03.06.2000 on the spot at the above said premises...... "
(11) It s evident from the aforesaid cross examination of the appellant / accused when he examined himself as his own witness as DW1 that virtually the inspection had been carried out in his presence and he had signed the inspection report and at the relevant time he did not have any oil / grease trap or any ETP installed in his kitchen where large scale manufacturing processing of namkeens in which frying was Raj Kumar Gupta Vs. Delhi Pollution Control Committee Page No. 9 of 15 being carried out and his kitchen was directly connected with the Municipal Sewer Line and is still connected with the same Municipal Sewer Line.
(12) Fourthly there is nothing on record to show that the appellant had obtained requisite consent from the DPCC for operating the unit which even otherwise was being operated without installing a ETP for any other pollution control device which was in contravention of the directions of the Hon'ble Supreme Court in the case of News Item Publish in Hindustan Times titled "And Quiet Flows the Maily Yamuna" Writ Petition (C) No. 725/1994 with IA No. 32/2006 in WP (C) No. 725/1994 and IA Nos. 20, 21 in WP (C) No. 4677/1985 decided on 27.02.2012 and orders dated 27.7.1999, 13.9.1998 and 24.01.2000. The appellant / accused has put up a defence that he is not required to obtain any consent from the DPCC for operating / maintaining the kitchen / workshop and no such consent is required and in this regard he has placed reliance on the order of the Secretary (Environment) dated 11.10.2000 and it is claimed by him that as per the said order he does not require such consent. I may observe that despite placing his reliance on the order of Secretary (Environment) dated 11.10.2000, the appellant has not placed on record said and Mark'DX1' on which he has placed his reliance is only the photocopy of said order which mention that there is an attachment (i.e. order of Secretary (Environment) dated 11.10.2000) to the said order which attachment has not been placed on record either before Trial Court or before this court in the appeal. An incomplete photocopy of the said Raj Kumar Gupta Vs. Delhi Pollution Control Committee Page No. 10 of 15 order has been placed on record which again has not been proved in accordance with law. Even otherwise assuming the arguments of the appellant / accused to be correct that there did exist an order passed by the Secretary (Environment) to the extent that no consent is required, yet it is evident that not only the directions of the Hon'ble Supreme Court (Law Decrared) in this regard are very clear but also vide document Mark DX1, the Secretary (Environment) has impressed upon all the restaurants, eating places, etc. to ensure the compliance of the general standard of discharge into sewered and unsewered areas. The appellant / accused has failed to place on record any evidence to show that he had complied with said standards for discharge into sewered and unsewered areas.
(13) Fifthly the appellant had put up three defences i.e. firstly that the notification detailing the plan for setting up an ETP was advertised in the newspaper on 21.06.2000, secondly alternative defence that vide order dated 11.10.2000 small business like the appellant were exempted from obtaining consent and thirdly the business of appellant is a nonconforming area where consent was not required to be obtained. Despite having raised these defences, the appellant / accused has failed to lead any evidence to discharge the onus and proving above defences so raised by him.
(14) Sixthly the various directions of Hon'ble Supreme Court in Writ Petition (C) No. 725/1994 are very clear where the Hon'ble Apex Court has not distinguished between the polluting units in conforming and nonconforming areas and have directed that appropriate plans to Raj Kumar Gupta Vs. Delhi Pollution Control Committee Page No. 11 of 15 be taken to "close such units".
(15) Seventhly the appellant has pleaded that he was not aware of any orders of Hon'ble Supreme Court and the Water (Prevention & Control of Pollution) Act, 1974 till the time his premises was inspected on 3.6.2000 but I may observe that ignorance of law is no excuse and it was mandatory for the appellant to have setup / installed an Affluent Treatment Plant or grease / oil trap as the case may be, which was not done as on the date of inspection.
(16) Lastly the respondent / complainant have duly proved the various ingredients constituting of offences under the provisions of Water (Prevention & Control of Pollution) Act, 1974, and whether his unit was operating in conforming and nonconforming zone, the appellant was still required to install an affluent treatment plant. No doubt the samples of the affluent have not been collected by the inspecting squad but that will not be fatal to the case of the prosecution in view of the provisions of Section 21 of the Water (Prevention & Control of Pollution) Act, which makes it clear that the collection of sample is not a sine qua non and also the fact that the appellant has virtually admitted the inspection having taken place at the spot which report was signed by him at the spot itself (as admitted by the appellant / accused in his cross examination) which confirms that the entire untreated trade affluent was being discharged without any kind of treatment, into public sewer.
(17) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the Raj Kumar Gupta Vs. Delhi Pollution Control Committee Page No. 12 of 15 investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence. (18) In view of the above discussion, I hereby hold that the prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared etc. There is nothing which could shatter the veracity of the witnesses of the complainant or falsify the claim of the complainant DPCC. All the witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative.
(19) Therefore, I find no infirmity in the impugned judgment of Ld. Trial Court dated 20.4.2017 holding the appellant / accused Raj Kumar Gupta guilty for the offence under Section 24/25 read with Section 26 of the Water (Prevention & Control of Pollution) Act, 1974. The impugned judgment dated 20.4.2017 is hereby upheld. (20) Coming now to the aspect of sentence, is is vehemently argued that the sentence impose upon the appellant is very harsh keeping in view the after the inspection on 3.6.2000 and the fact that the appellant has complied with the directions of the Government and had installed the effluent treatment plant, which fact of installation has also not been denied by the respondent / DPCC. It is also submitted Raj Kumar Gupta Vs. Delhi Pollution Control Committee Page No. 13 of 15 that the convict / appellant is first time offender and sole bread earner of the family and has already suffered the agony of trial for the last seventeen years and requests for a lenient view.
(21) Ld. Counsel for the respondent / DPCC has opposed the grant of lesser sentence in view of the fact that as per his instructions the appellant is still continuing to indulge into similar violation of Water (Prevention and Control of Pollution) Act as well as the Air (Prevention and Control of Pollution) Act, even in the year 2017 when his premises was inspected. However, he has fairly conceded that the details of such violations had not been placed either before the Ld. Trial Court nor presently or before before this court.
(22) I have considered the rival contentions. It goes without saying that none can be permitted to take the directions of the court, least of the Hon'ble Apex Court, lightly and violations thereof have to be taken seriously, yet in the given circumstances of the case where on the one hand the appellant claims that he had complied with all the directions whereas on the other hand the respondent is claiming that the violation is continuous and still in existence, I, in the interest of justice hereby setaside the impugned order on sentence dated 25.4.2017 and remand the case back to the Ld. Trial Court to afford an opportunity to the appellant / accused who claims that he had already complied with the directions of the Government and the respondent who claims that there had been subsequent violations by the appellant to place such material on record of the Trial Court and thereafter give opportunity to the parties to lead their evidence on the aspect of sentence (if found necessary) and thereafter to pass an order on the quantum of sentence Raj Kumar Gupta Vs. Delhi Pollution Control Committee Page No. 14 of 15 afresh after taking into consideration the subsequent facts as above. (23) With the above findings, the appeal is partially allowed. Parties to appear before the Ld. Trial Court on 04.09.2017. Tial Court record be sent back along with copy of the order.
(24) Appeal file be consigned to Record Room.
Announced in the open Court (Dr. KAMINI LAU)
Dated: 11.08.2017 Spl. Judge (P.C. Act) CBI01
(Central) THC/Delhi.
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