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IN THE HIGH COURT OF JUDICATURE AT PATNA
Cr.Misc. No.21109 of 2005
1.M/S BHARAT SUGAR MILLS LTD. AT, P.O. & P.S. SIDHWALIA, DISTRICT
GOPALGANJ THORUGH THE VICE PRESIDENT, FINANCE HOLDING POWER OF
ATTORNEY ON BEHALF OF THE COMPANY ANIL KUMAR KEJRIWAL
2.B.K.SUREKA, THE SENIOR EXECUTIVE VICE PRESIDENT, BHARAT SUGAR MILLS
LTD. AT, P.O. & P.S. SIDHWALIA, DISTRICT- GOPALGANJ.
.............PETITIONERS
Versus
1.STATE OF BIHAR
2.THE BIHAR STATE POLLUTION CONTROL BOARD THROUGH ITS MEMBERE
SECRETARY, SHRI R.CHOUBEY, BORING ROAD, PATNA AT PRESENT HAVING ITS
OFFICE AT 2ND FLOOR, BELTRON BHAWAN, SHASTRINAGAR, PATNA-800023.
..............RESPONDENTS
with
Cr.Misc. No.21998 of 2005
1.M/S BHARAT SUGAR MILLS LTD. AT, P.O. & P.S. SIDHWALIA, DISTRICT
GOPALGANJ THORUGH THE VICE PRESIDENT, FINANCE HOLDING POWER OF
ATTORNEY ON BEHALF OF THE COMPANY ANIL KUMAR KEJRIWAL
2.B.K.SUREKA, THE SENIOR EXECUTIVE VICE PRESIDENT, BHARAT SUGAR MILLS
LTD. AT, P.O. & P.S. SIDHWALIA, DISTRICT- GOPALGANJ.
.............PETITIONERS
Versus
1.STATE OF BIHAR
2.THE BIHAR STATE POLLUTION CONTROL BOARD THROUGH ITS MEMBERE
SECRETARY, SHRI R.CHOUBEY, BORING ROAD, PATNA AT PRESENT HAVING ITS
OFFICE AT 2ND FLOOR, BELTRON BHAWAN, SHASTRINAGAR, PATNA-800023.
.............RESPONDENTS
-----------
For the Petitioners : Mr. Y.V.Giri, Sr.Advocate (in both the cases) Mr.Ashish Giri, Advocate For the Respondent : Mr.Shivendra Kishore, Advocate Board For the State : Mr. Indu Bala Pandey, A.P.P.
4 25.3.2010 In both these applications, the company M/s Bharat Sugar Mills Ltd through its Vice President is petitioner no.1 and one B.K.Sureka, Sr. Executive Vice President is petitioner no.2. Similarly, in both the cases Bihar State Pollution Control Board through its Member Secretary is Opposite party no.2 who happens to be the complainant in these cases and as such both these applications are heard together.
2In Cr.Misc.No.21109 of 2005, the petitioners pray for quashing the entire proceeding arising out of Misc. Case No.33(M)/1988, T.R.No.124/05, pending in the court of S.D.J.M., Gopalganj cum Special Magistrate for offences under Water (Prevention and Control of Pollution) Act, 1974 including the order dated 11.12.1999 by which non-bailable warrant has been issued against the accused persons.
In Cr.Misc.No.21998 of 2008, the petitioners pray for quashing the entire proceedings arising out of Misc. Case No. 24(M)/1987, T.R.No.126/05 pending in the court of S.D.J.M., Gopalganj cum Special Magistrate for offences under Water (Prevention and Control of Pollution) Act, 1974 including the order dated 15.11.2000 by which non bailable warrant has been issued against the accused persons.
The fact of the case lies in a narrow compass. The Opposite party no.2 filed a petition of complaint bearing Complaint Case No.33(M)/1988 for offences under sections 41, 42, 43 and 44 of the Water (Prevention and Control of Pollution) Act committed during the period from 1.1.1987 on wards. Similarly, other complaint bearing Complaint Case No.24(M)/1987, which is the subject matter in Cr.Misc.No.21998 of 2005, was filed by Opposite party no.2 for offences under section 33 of the Water (Prevention and Control of Pollution) Act for restraining the petitioners from carrying on production in their factory namely M/s Bharat Sugar Mills, Sidhwalia as they were discharging waste water and other trade effluents into the 3 river Ghoghari without any treatment resulting in great apprehension of pollution of water of the aforesaid river Ghoghari.
It is submitted that the petitioner M/s Bharat Sugar Mills was established in 1931 and the main allegations in the complaint are that they were discharging trade effluents after 1987 without previous sanction of the Bihar State Pollution Control Board .It appears from paragraph 8 of the complaint case that earlier the petitioner Sugar factory was given consent for discharge of its trade effluents for a period from 1.4.1985 to 31.12.1988 by the State Board with conditions inter alia that they would submit the effluent analysis report during the working season monthly and that the effluents parameters contained should remain within the permissible limit as fixed by the Board. The petitioners further submit that the letter requesting for renewal of consent dated 22.10.1986 was returned to the Sugar Factory vide State Board's letter dated 8.1.1987 with request to send Analysis report and time bound programme for installation of Effluent Treatment Plant. The complaint was filed against M/s Bharat Sugar Mills through its Executive President who was accused no.1 and then the Executive President of M/s Bharat Sugar Mills Ltd. was made accused no.2 in both the cases.
The petitioners have stated in paragraph 10 of the petition in Cr.Misc.No.21109 of 2005 that at the relevant time when alleged offence was instituted, one G.P.Dhurka was the Executive President of the company who died on 22.5.1995. In fact, he had appeared in the case and taken bail. Petitioner no.2 B.K.Sureka was not even posted in 4 the Sugar Mill at the relevant time when the alleged offence was committed under section 33, 41, 42, 43 and 44 of the Water(Prevention and Control of Pollution) Act (hereinafter referred to as 'the Water Pollution Act').
Counsel for the petitioners submits that sections 41, 42 and 43 provides for punishment for alleged violation of sub-section (2) or sub-section(3) of section 20 or orders issued under clause© of sub-section(1) of section 32 or directions issued under sub-section(2) of section 33 or section 33A for a term which may extend to three months or with fine which may extend to ten thousand. He further submits that no person either juristic or natural has been made an accused in the instant case apart from two accused mentioned in the complaint case. The company being juristic person cannot be sent to jail and the company which was said to be represented through the Executive President at the relevant time has died in the year 1995. He further submits that petitioner no.2 was not an accused and the prosecution case is pending since last 22 years and the as such continuance of proceeding over 20 years would be violative of Article 21 of the Constitution and concept of speedy trial. In support of his contention, he relied upon a decision in the case of P.Ramachandra Rao Vs State of Karnataka, reported in (2002)4 SCC 578, particularly para-29 at page-603.
Mr. Shivendra Kishore, learned counsel appearing on behalf of the Bihar State Pollution Control Board submits that the petitioners cannot dispute that no offence has been made in the facts 5 and circumstances of the case. The petitioner Sugar Mill after 1.1.1987 did not have any sanction of the Pollution Control Board for discharging its trade effluents. Section 25 mandates that no person without consent of the Board will establish or take any steps to establish any industry, operation or process, or any treatment and disposal system which is likely to discharge sewage or trade effluent into a stream or well or sewer. He submits that the aforesaid provision would also apply to the existing lease and industry. He further submits that Section 33 authorizes the Pollution Control Board to make an application to courts for restraining apprehended pollution of water in streams or wells and as such complaint bearing Misc.Case No.24(M)/1987 was filed which is subject matter of Cr.Misc.No.21998 of 2005 He submits that the second complaint has been filed for punishing the Opposite parties for discharge of trade effluent without proper sanction. He submits that even if the erstwhile Executive President of the Sugar Mill was made an accused who died on 22.5.1995, still vicarious liability would continue against the new incumbent.
It appears that accused no.1 M/s Bharat Sugar Mills was established in the year 1931. Nonetheless, section 26 of the Water Pollution Act, 1974 provides that provision of section 25 will also be applicable to the existing discharge of sewage or trade effluent by existing lease at the commencement of the Act. Section 25 of the Act provides restriction on new outlets and new discharges. It mandates that no person without consent of the Board will establish or take any 6 steps to establish any industry, operation or process, or any treatment and disposal system which is likely to discharge sewage or trade effluent into a stream or well or sewer.
It is not in dispute that the accused persons have got consent from the State Government till 1986 for discharge of trade effluents. In 1986 the petitioners applied for consent for further period which was not acceded. However, in March, 1990 the petitioner company established its Effluent Treatment Plant. Thus, it appears that for the period between 1.1.1987 to March, 1990 the Sugar Mill did not have the valid consent for discharge of effluents.
The issue is whether prosecution would be allowed to continue against the petitioners even after 22 years or whether it could at all continue against them, in view of the fact that one G.P.Dhurka, was represented petitioner no.1, the company, and was also arrayed as accused no.2 as well, died on 22.5.1995. Further more, whether B.K.Sureka, petitioner no.2 in both the cases holding the post of Senior Executive Vice President of the Sugar Mill having joined the company much after 1990 can be prosecuted?
In my view no person who at the relevant time was not associated in any manner with the affairs of the company can be criminally proceeded against. Petitioner no.2 joined the company much after 1990 and as such the prosecution against him would be an abuse of the process of the court and the same is hereby quashed.
So far as petitioner no.1 namely M/s Bharat Sugar Mills Ltd. is concerned, I find that it has not been controverted that the then 7 Executive President representing the company namely G.P. Dhurka died on 22.5.1995. Had G.P. Dhurka been alive he could have been prosecuted whether he continued to be the Executive President or not. It is well settled that sentence of imprisonment can be passed only against the natural person and not against juristic person. In this case, as the then Executive President has died, I find that no sentence of imprisonment can be legally passed against the company.
However, the vicarious liability of the company, so far as payment of fine is concerned, would subsist and the instant proceeding at best can proceed only so far as it relates to imposition of fiscal punishment. To the aforesaid extent I fully find substance in the submission of learned counsel for the Pollution Board.
This takes us to the next issue whether the proceeding should be allowed to continue even for the purpose of imposition of fiscal punishment against the company after 22 years of filing of the complaint. It is not in dispute that the Sugar Mill regularly approached the Water Pollution Board for consent for its effluent discharge which was also granted up to 1986. Further consent was denied to the petitioner company after 1986 despite its application. It appears that within three years, the petitioner company established its Effluent Treatment Plant in the year 1990 and thereafter it has regularly obtained consent of the appropriate authority for discharge of its effluent.
It appears that no evidence or witness has been examined in the instant case. In such circumstances allowing the proceeding to 8 continue after 22 years would be violative of principle of speedy trial in the facts of this case. As such the instant proceedings arising out of Misc. Case No.33(M)/1988 and Misc. Case No.24(M)/1987 pending in the court of S.D.J.M. Gopalganj cum Special Magistrate, under Water(Prevention and Control of Pollution)Act, 1974 are quashed.
In the result, these two applications are allowed. KHAN (Samarendra Pratap Singh,J)