JUDGMENT K. Natarajan, J.

1. This Criminal Appeal has been preferred by the Tamil Nadu Pollution Control Board by its Member, Secretary Dr. M. Mariappan represented by Thiru, K. Renganathan, District Environmental Engineer, Tamil Nadu Pollution Control Board, Chengalpattu (South) against the judgment of the Judicial Magistrate Tambaram dated 2-9-1991 in C.C. No. 781 of 1989. By the said judgment the respondents/ accused were convicted for violation of Section 25(5) of the Water (Prevention and Control of Pollution) Act, 1974 punishable under Section 44 of the Act. The learned Judicial Magistrate had sentenced the first respondent company to pay a fine of Rs. 1000/- and the second respondent/second accused proprietor to undergo imprisonment till the rising of the Court and to pay a fine of Rs. 2000/- in default to undergo rigorous imprisonment for a period of one year. This appeal has been preferred by the Pollusion Control Board with the prayer that the learned Magistrate having found the respondents/accused guilty for the violation of Section 25(5) of the Act ought to have imposed the minimum sentence of six months to the proprietor viz., the second respondent. Instead he had directed the second respondent to undergo imprisonment till the rising of the Court which is contrary to law and this Court has to impose the minimum sentence of six months on the second respondent.

2. The learned Counsel for the respondents/ accused at the threshold submitted that the appeal itself is not maintainable as the same has been preferred under Section 377 of the Criminal Procedure Code against the inadequacy of the sentence. In that case the Public Prosecutor ought to have filed the appeal on the instructions of the State Government which is not the case here. It is pointed out the Pollution Control Board viz., the complainant has preferred this appeal through a private counsel and therefore the said appeal is not maintainable. In support of the above my attention is invited by the learned Counsel for the respondents/accused to the Division Bench Ruling reported in the Assistant Collector of Central Excise (Preventive), Madras v. V. Krishnamurthy, 1983 Mad LW (Cri) 196 : 1983 Cri LJ 1880. In that ruling the learned Judges of this Court have held a private party is not competent to file an appeal questioning the adequacy of the sentence under Section 377(2), Criminal Procedure Code as the appeal ought to have been filed only by the Public Prosecutor on the instructions of the State Government. The said decision of the Division Bench has been confirmed on appeal by the Supreme Court of India in the decision reported in (1997) 1 Mad LW (Cri) 277 : 1997 Cri LJ 1930 (Assistant Collector of Central Excise, Madras v.V. Krishnamoorthy). The Supreme Court has held : it is the Public Prosecutor who under the direction of the Central Government is obliged to present an appeal to the High Court against inadequacy of sentence and the appeal having preferred by the complaint through the counsel engaged by the client who happens to be the Central Government Public Prosecutor such fiduciary relationship of client and counsel is not permissible and the appeal as filed in the High Court is not maintainable.

3. A perusal of the memorandum of the grounds of the appeal would reveal that the appeal has been presented by a private counsel on the instructions of the Pollution Control Board. In the above circumstances I am of the view the above rulings apply to the facts of the case in all fours and therefore I conclude that the appeal as presented is not maintainable.

4. In the result the appeal is dismissed.