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CR.A/669/1995 2/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 669 of 1995
For
Approval and Signature:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
1
- Yes, 2 to 5 No
=========================================================
DAHYABHAI
KALUBHAI SOLANKI - Appellant(s)
Versus
KASHIRAM
TEXTILE MILLS LTD & 3 - Opponent(s)
=========================================================
Appearance :
MR
BR GUPTA for
Appellant(s) : 1,MR KL DAVE for Appellant(s) : 1,
NOTICE SERVED
for Opponent(s) : 1,
DR SONIA HURRA for Opponent(s) : 1,
MR KV
SHELAT for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 09/04/2010
ORAL
JUDGMENT
Heard learned Advocates for the parties.
Gujarat Pollution Control Board through its Assistant Legal Officer original complainant has approached this Court under Section 378 of the Code of Criminal Procedure challenging the order of acquittal dated 03.07.1993 passed by Chief Metropolitan Magistrate, Ahmedabad in Criminal Case No.1705/1989 acquitting the accused respondent hereinabove of the charge of committing offences punishable under Section 39 read with Section 40 of the Air (Prevention and Control of Pollution) Act, 1981 hereinafter referred as the AIR Act for the sake of brevity. The facts in brief leading to filing of this appeal deserve to be set out as under.
The complainant is Assistant Legal Officer of Gujarat Pollution Control Board, Ahmedabad. The accused no.1 is a Private Limited Company running in the name of Kashiram Textile Mills Private Limited, accused no.2 and 3 are directors of the said company and those responsible for the business of the company which is stated to have engaged in processing synthetic clothes. The present complainant was compelled to file a complaint before the Chief Metropolitan Magistrate's Court against the accused respondents as according to him and according to the Board, the accused had committed offences by not complying with provisions of Section 26(1) read with Rule 12(1) of the Act and rules made thereunder and therefore, incurred liability to be convicted and punished under Section 39 and Section 40 of the AIR Act. The accused no.1 was granted consent for carrying out its operations vide order and letter dated 30.04.1986. The said consent was accorded on terms and conditions mentioned thereunder. As per provision of Section 26, the Board or its empowered employee has power to take sample by air or emission and it prescribes procedures for collecting the sample of the emission. Rule 12(1) of the Gujarat Air (Prevention and Control of Pollution) Rules, 1983 makes it incumbent upon the occupier and the trade to have port holes or devices so as to enable the inspecting staff or the Board to collect the sample of emission. The accused respondent No.1 did not have any device to reach up to the top of the chimney and collect the sample of emission being emitted therefrom. The factory premises was visited by the complainant on 06.05.1989 and was unable to collect the sample on account of non-availability of those facilities which were prescribed under Rule 12 and which were compulsorily to be provided by accused No.1 on his premises. The Court after appreciating the evidence came to the conclusion that vital documentary evidence going to the root of the matter namely notification declaring the area to be air pollution areas had not come on record. The Court therefore, recorded the acquittal and passed the acquittal order dated 03.07.1993 which is impugned in the present appeal under Section 378 of the Code of Criminal Procedure.
Mr.
K.L. Dave learned Advocate appearing for the appellant-Board contended that the defaulters data sheet as well as the testimony of the original complainant go to show that the existing notification which has been referred and relied upon in unequivocal terms inasmuch even the notification no. is mentioned, the date of issuance is mentioned. Therefore, it was the Courts duty to take it to be existing covering the present industry also. Therefore, Mr. Dave further submitted that the industry ought to take consent for running the industry in itself pre-supposes that the area wherein industry is located was falling under the pollution control area as declared by the State under Section 19 of the AIR Act. In view of this and in view of the pointed question put to the complainant with regard to the non publication and / or lack of evidence to show the notification being published and the complainant's answer that the notification was published in two daily newspapers should have been sufficient for establishing the factum with regard to existence of notification and declaration of area to be Pollution Control Area and when these factors are said to have been proved, then the violation was very much clear upon the factors of the case inasmuch as it is an admitted position that there was no facility to reach upto the end of the chimney for collecting the emission and/or any air emitted through the chimney. In view of this, the order of acquittal deserves to be quashed and set aside and appropriate conviction order with punishment be passed. Mr. Dave further submitted that the accused need to be dealt with sternly and there being period of three years available to the accused for providing such facilities as the consent was given three years prior to the date of inspection, i.e. 06.05.1989, they did not provide any facility which was incumbent upon them as per provision of Rule 12 of the Air Pollution Rules.
Mr.
K.V. Shelat learned Advocate for the respondent submitted that the breach is sought to be pleaded on the basis of issuance of notification copy whereof has not been produced at all before the Court. The criminal liability cannot be fastened upon anyone without there being cogent evidence available clearly pointing to the guilt of the accused. In instant case, the defence who asked pointed question to complainant that no such notification is existing and/or and it was a fresh publication, the answer came with there was a publication. That means when the question of notification was questioned, it was duty cast upon the prosecution to make their case good based upon production and proof of the said notification. In absence of notification and proof thereof, the entire exercise was an exercise in futility. In a criminal trial, the presumption with regard to existence of document even if it is in form of a notification is not permissible, unless and until, it is proved that the same would be basis for determining the guilt or no guilt on part of the accused. Mr. Shelat in response to the statement with regard to accused taking consent and therefore, prosecution's duty to direct them for production of document being restricted, he submitted that the mere existence of notification is not sufficient. As per Rule 8 of the AIR Pollution Rules, proper publication is required to such notification so that public at large may have knowledge thereof. So it was the duty cast upon the prosecution impugned to establish the promulgation and publication of the notification in question.
This Court has heard the learned Advocates and perused the record and proceedings. The Court is unable to agree with the submission of Mr. Dave for reversing the order of acquittal for the following reasons :-
The allegation in the complaint revolves around the non-providing of a facility for reaching the upper end of the chimney for collecting the sample of emission. It was contended that providing of facility for the inspecting staff to reach the upper end of the chimney is under Rule 12 of the AIR Pollution Rules. The accused no.1 therefore, was under obligation to make provision so as to enable the inspection staff to reach at the upper end of the chimney for collecting the sample of the emission. The non-providing of the same is amounting to violation of Rule 12 which in turn was violative of Section 26(1) and hence, punishment under Section 39 and Section 40 of the AIR Pollution Act and Rules. At this stage, it is of much importance to note that on coming into force of the Air Pollution Act, the State is empowered to notify and declare certain areas or area within the State to be air pollution control area for the purpose of this Act. Thus, Section 19 pre-supposes possibility of declaration of area to be pollution control area or area and alteration of such area and/or revocation of such notification for such areas. Rule 8 of AIR Pollution Rules provides manner of promulgating such notification. The publication makes it incumbent upon the State to have the notification gazetted and published in such a fashion as to make people of the area aware about the promulgation of such notification so as to make the Act and its provisions applicable. The detailed reading of Section 19 and the relevant provisions would go to show that norms of apparatus and standards for emissions are to be prescribed dependent upon the local and physical requirements of the area wherein the Act is to be made applicable. Thus, this practice would go to show that when someone is to be visited with serious breach as alleged, offence proved against the Trade, the company or its Director, then the prosecution was under duty to produce and prove the notification and the norms etc. prescribed thereunder. The Court has to add here in the instant case the norms would not have been so important looking to the nature of the breach alleged but existence of notification and the dates are very important. At this stage it is important to note as submitted by Mr. Shelat for the respondents, that in Paragraph 5 of the complaint, it is stated that the factory premises was visited on 06.05.1989 and the testimony of the P.W.-1, i.e. original complainant which has come on record, as could be seen from Page 31 of the paper book that the notification was published in Gazette dated 06.08.1989, i.e. subsequent to the date on which the factory was visited. This is sufficient to show that prosecution did not have a cast iron case so as to prove the guilt on part of the accused. That there could be some mistake in mentioning and incorporating the dates or making reference to the notification as the consent is admittedly accorded to the company way back in the year 1998 but this is sufficient evidence to deal a serious blow to the case of the prosecution. In such a situation, prosecution was under obligation to explain properly this apparent discrepancy. In view of the aforesaid facts and circumstances, the Court is of the view that the order of acquittal, in exercise of powers under Section 378 of the Code of Criminal Procedure does not call for any interference. In the end, the appeal fails and is hereby rejected.
(S.R.
Brahmbhatt, J.) Caroline Top