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Crl. A. No. 1613 SBA of 2002 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Crl. A. No. 1613 SBA of 2002 (O&M)
Date of decision : 12.8.2013
...
Punjab State Board for Prevention and Control of Water Pollution
................Appellant
vs.
M/s Panna Synthetics Pvt. Ltd. and others
.................Respondents
Coram: Hon'ble Mr. Justice K.C. Puri
Present: Sh. B.S. Walia, Advocate
for the appellant
Sh. B.R. Mahajan, Advocate
for the respondents.
...
K.C. Puri, J.
This is an appeal directed by the Punjab State Board for the Prevention and Control of Water Pollution (hereinafter to be referred as 'the Board' ) against the judgment dated 18.5.2001 vide which Sh. Arunvir Vashist, Judicial Magistrate Ist Class, Amritsar, dismissed the complaint against accused/respondents.
The complainant Board has filed a complaint under Section 44 read with Section 47 of the Water (Prevention and Control of Pollution) Act, 1974 (hereinafter to be referred to as 'the Act') against Chugh Banita 2013.08.20 16:04 I attest to the accuracy and integrity of this document Crl. A. No. 1613 SBA of 2002 -2- the accused on the allegation that accused industry/firm as defined under Section 47 of the Act was running the business of processing of man made fabrics using grey cloth, dyes, chemicals (soda ash acetic, detergent, sulfuric acid) in the name and style of M/s Panna Synthetic Pvt. Ltd., Gali Banke Behari, Kashmir Road, Amritsar and accused No. 2 to 8 are incharge and are responsible for the conduct of the day to day business of the accused No. 1 company/firm and as such are liable to be prosecuted and punished for the offence committed by accused No.1. The accused industry/firm was bound to obtain the consent of the complainant Board for discharging trade effluent under Section 25 read with Section 26 of the Act, 1974. Notices dated 20.5.1993, 19.6.1990, 30.6.1993, 20.8.1993, 6.8.1993, 16.8.1993 and 8.9.1993 were served on the accused industry to obtain the consent of the complainant Board but the accused industry failed to comply with the directions of the Board and to obtain the consent. The complainant Board refused to grant the consent to the accused industry/firm because accused industry failed to provide proper effluent treatment plant. The accused industry was intimated vide letter No. 28661 - 64 and the endorsed copy of the same was sent to the Environmental Engineer, Pollution Control Board, Amritsar. On 19.10.1993 Om Parkash, JE visited the accused industry/firm No.1 and found that the industry was discharging untreated trade effluent 250 M3/d and about 2.5m3/d of domestic effluent into the open drain to Nallah without the prior consent of the complainant Board. The accused industry has not installed effluent treatment plant. So, the Chugh Banita 2013.08.20 16:04 I attest to the accuracy and integrity of this document Crl. A. No. 1613 SBA of 2002 -3- complaint was filed.
The accused was summoned to face trial. After going through the pre-charge evidence accused were summoned and charge under Section 44 read with Section 47 of the Act, was framed against them.
After framing of the charge, prosecution produced PW-1 Om Parkash JE, PW-2 Narinderpal Singh for the purpose of cross examination.
The accused were examined under Section 313 Cr.P.C. and all the incriminating evidence was put to them to which they denied.
Learned trial Court framed following points for determination:-
1. Whether the accused firm through its Directors (other accused) had been running industry in the area of Amritsar and on 19.10.1995 was found discharging Trade Effluent in an open drain without obtaining the consent of the Board?
2. Whether by doing so accused persons have committed an offence punishable under Section 44 read with Section 47 of the Water (Prevention and Control of Pollution) Act, 1974?
3. Whether there are sufficient grounds to convict the accused persons under the said Act?
Learned trial Court after appraisal of the evidence regarding point No. 1 reached to the conclusion that only Vineet Aggarwal, Chugh Banita 2013.08.20 16:04 I attest to the accuracy and integrity of this document Crl. A. No. 1613 SBA of 2002 -4- Managing Director is the authorised person and that prosecution has failed to prove that other accused/respondents are liable in case the offence is proved. Regarding point No. 2, learned trial Court reached to the conclusion that ingredients of offence under Section 44 read with Section 47 of the Act are not made out against the accused, in view of the fact that accused have applied for grant of consent, but the same has not been decided within 4 months and in view of Section 25 (7) the consent would be deemed to have been given unconditionally.
Consequently, the complaint was dismissed and accused were acquitted of the charge levelled against them.
Feeling dissatisfied with the judgment dated 18.5.2001 passed by Sh. Arunvir Vashist, Judicial Magistrate Ist Class, Amritsar, the appellant Board has filed the present appeal.
Learned counsel for the appellant has submitted that industry was being run by the respondents since 1978. The stand taken by the respondents is that the same was set up in the year 1989. So, the industry was set up without getting the consent of the Board and as such there is violation of Section 25 of the Act, which is punishable under Sections 44 and 47 of the Act. Mere fact that later on consent was granted is not a ground for dismissing the complaint.
Counsel for the respondents has submitted that the trial Court has rightly held that except Vineet Aggarwal, no other person is actively involved in managing the affairs of the company. It is further contended that the request for consent was made on 20.2.1990, as per Chugh Banita 2013.08.20 16:04 I attest to the accuracy and integrity of this document Crl. A. No. 1613 SBA of 2002 -5- Section 25 (7) of the Act, the consent would be deemed to have been given if the application for grant of consent is not refused within 4 months. In Exhibit PG, the factum of receipt of request for consent has been admitted. There is no document on the file that the said consent was ever refused. It was only in the year 1993 that the Board started raising objection. Otherwise also, later on consent was granted by the Board. It is further submitted that the respondents have later on closed the industry. The matter relates to the year 1990 i.e. last about more than 23 years and the complaint was filed in the year 1993 i.e. for the last more that 20 years. So, prayer has been made for dismissal of the appeal.
I have considered the submissions made by counsel for both the sides and have also gone through the record of the case.
In order to properly appreciate the facts of the case, Section 25 of the Act is reproduced as under:-
"25. Restrictions on new outlets and new discharges.- {(1) Subject to the provisions of this section, no person shall, without the previous consent of the State Board.-
(a) 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 Chugh Banita 2013.08.20 16:04 I attest to the accuracy and integrity of this document Crl. A. No. 1613 SBA of 2002 -6- of sewage); or
(b) bring into use any new or altered outlet for the discharge of sewage; or
(c) begin to make any new discharge of sewage: Provided that a person in the. process of taking any steps to establish any industry, operation or process immediately before the commencement of the Water (Prevention and Control of Pollution) Amendment Act, 1988 , for which no consent was necessary prior to such commencement, may continue to do so for a period of three months from such commencement or, if he has made an application for such consent, within the said period of three months, till the disposal of such application.
(2) An application for consent of the State Board under sub- section (1), shall be made in such form, contain such particulars and shall be accompanied by such fees as may be prescribed.
(3) The State Board may make such inquiry as it may deem fit in respect of the application for consent referred to in sub- section (1) and in making any such inquiry shall follow such procedure as may be prescribed.
(4) The State Board may-
(a) grant its consent referred to in sub- section (1), Chugh Banita 2013.08.20 16:04 I attest to the accuracy and integrity of this document Crl. A. No. 1613 SBA of 2002 -7- subject to such conditions as it may impose, being-
(i) in cases referred to in clauses (d) and (b) of sub- section (1) of section 25, conditions as to the point of discharge of sewage or as to the use of that outlet or any other outlet or discharge of sewage;
(ii) in the case of a new discharge, conditions as to the nature and composition, temperature, volume or rate of discharge of the effluent from the land or premises from which the discharge or Dew discharge is to be made; and
(iii) that the consent will be valid only for such period as may be- specified in the order, and any such conditions imposed shall be binding on any person establishing or taking any steps to establish any industry, operation or process, or treatment and disposal system or extension or addition thereto, or using the new or altered outlet, or discharging the effluent from the land or premises aforesaid; or
(b) refuse such consent for reasons to be recorded in writing.
(5) Where, without the consent of the State Board, any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, is established, or any steps for such establishment have been taken or, a new or outlet is brought into use for Chugh Banita 2013.08.20 16:04 I attest to the accuracy and integrity of this document Crl. A. No. 1613 SBA of 2002 -8- the discharge of sewage or a new discharge of sewage is made, the State Board may serve on the person who has established or taken steps to establish any industry, operation or process, or any treatment and disposal system or any extension or addition: thereto, or using the outlet, or making the discharge, as the case may be, a notice imposing any such conditions as it might have imposed on, an application for its consent in respect of such establishment,, such outlet or discharge. (6) Every State Board shall maintain a register containing particular, of the conditions imposed under this section and so much of the register as relates to any outlet, or to any effluent from any land or premises shall be open to inspection at all reasonable hours by any person interested in, or affected by such outlet, land or premises, as the case may be, or by any person authorised by him in this behalf and the conditions so contained in such register shall be conclusive proof that the consent was granted subject to such conditions. (7) The consent referred to in sub- section (1) shall, unless given or refused earlier, be deemed to have been given unconditionally on the expiry of a period of four months of the making of an application in this behalf complete in all respects to the State Board. (8) For the purposes of this section and sections 27 and Chugh Banita 2013.08.20 16:04 I attest to the accuracy and integrity of this document Crl. A. No. 1613 SBA of 2002 -9- 30,-
(a) the expression" new or altered outlet" means any outlet which is wholly or partly constructed on or after the commencement of this Act or which (whether so constructed or not) is substantially altered after such commencement;
(b) the expression" new discharge" means a discharge which is not, as respects the nature and composition, temperature, volume, and rate of discharge of the effluent substantially a continuation of a discharge made within the preceding twelve months (whether by the same or a different outlet), so however that a discharge which is in other respects a continuation of previous discharge made as aforesaid shall not be deemed to be a new discharge by reason of any reduction of the temperature or volume or rate of discharge of the effluent as compared with the previous discharge."
Learned trial Court has given a finding that the Board has not produced any evidence that except Vineet Aggarwal any other person mentioned in the complaint was actively participating in the affairs of the company. That aspect has not been challenged during the course of arguments. The only stress made by counsel for the Board is that since the industry has been set up without the approval of the Board and as such clause 7 of Section 25 of the Act is not Chugh Banita 2013.08.20 16:04 I attest to the accuracy and integrity of this document Crl. A. No. 1613 SBA of 2002 -10- applicable.
From the evidence on the file, it emerges out that case of the accused is that the industry was set up in the month of November, 1989 and the application was moved in the month of February 1990. the said factual position could not be disputed during the course of arguments. However, the submission made by counsel for the appellant was that earlier also industry was set up but was carried on by the previous owner. However, the fact remains that the present accused cannot be held liable for the criminal act of the earlier owner. The respondent company after acquiring the company have submitted application for grant of consent. Exhibit PG depicts that request for giving consent was received. The Board has not taken any action against the company till the year 1993. It was only in the year 1993, the objections have been raised regarding not obtaining consent of the Board. Section 25 (7) envisages that if a request for obtaining consent is moved and that is not refused or given within 4 months in that case, the same would have been presumed to be allowed. It is also not disputed during the course of arguments that later on consent was granted to the company.
According to the assertion made in the complaint itself, JE of the Board has visited the premises of the company in the year 1993. So, he was not in a position to depose about the condition of the discharge of trade effluent from the year 1990-1993.
It is also not disputed during the course of arguments that the respondent/industry has since been closed. Chugh Banita 2013.08.20 16:04 I attest to the accuracy and integrity of this document Crl. A. No. 1613 SBA of 2002 -11- Otherwise also, the violation relates to more than 20 years back and much water has flown thereafter. The consent has been given and later on industry has been closed.
So, in these circumstances, the appeal is without any merit and the same stands dismissed.
( K.C. Puri )
12.8.2013 Judge
chugh
Chugh Banita
2013.08.20 16:04
I attest to the accuracy and
integrity of this document