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CR.A/25719/1994 9/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL NO. 257 OF 1994
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
======================================
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 ?
======================================
GUJARAT
POLLUTION CONTROL BOARD - Appellant(s)
Versus
VADILA
METAL CORPORATION & ORS. - Respondent(s)
======================================Appearance
:
Mr. Yogesh S. Lakhani for
Appellant(s).
Notice Served for Respondent(s) : 1.
Mr. Bhargav
N. Bhatt for Respondent(s) : 2-7.
Mr. K. P. Raval, APP for
Respondent(s) : 8.
======================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 06/10/2008
ORAL
JUDGMENT
By way of the present appeal under Section 378 of the Code of Criminal Procedure, 1973 ( the Code for short), the appellant Gujarat Pollution Control Board ( the Board for short) has questioned the legality and validity of the impugned judgement and order of discharge dated 11th October, 1992 passed by the learned Chief Metropolitan Magistrate, Ahmedabad in Criminal Case No.1707 of 1989.
2. The facts of the case briefly summarised are that the Assistant Law Officer of the appellant-Board lodged a complaint in exercise of the powers conferred upon him against the respondents - original accused. The respondent No.1 Vadalia Metal Corporation is a partnership firm and respondent Nos.2 to 6 are its partners and respondent No.7 is its manager. It is alleged in the complaint lodged by the Board that the respondents - original accused, who are engaged in the business of manufacturing the cold roll stainless steel sheets and are using heat roll stainless steel plates as raw material, are required to use water in the manufacturing process and without obtaining any approval from the appellant-Board, they are discharging trade effluent without any treatment. It is also alleged that a notice dated 25th May, 1988 was served upon respondent No.1 and its partners by Registered Post A.D., informing them to maintain the parameters of the trade effluent, as required under the law, as they are discharging the effluent without giving them treatment. On 2nd June, 1989, the officers of the appellant-Board visited the factory premises of respondent No.1 and serving the notice under Section 21(3)(a) of the Water (Prevention & Control of Pollution) Act, 1974 ( the Act for short) upon respondent No.7 Manager, who was present at that time, a sample of the effluent discharged by respondent No.1 was taken in his presence and was sent for analysis. Accordingly, the analyst analysed the sample and sent the report dated 17th May, 1989 to the appellant-Board, a copy of which was also sent to respondent No.1 on 2nd June, 1989. As the analysis report revealed that the respondents-original accused have not maintained the parameters which were informed to them by the Notice dated 25th May, 1988 and have continued to discharge polluted trade effluent in contravention of the instructions and conditions of the Notice dated 25th May, 1988, the complaint came to be lodged against them alleging that the respondents-accused have committed the offence under Sections 43 and 44 of the Act and appropriate punishment may be imposed upon them. On the basis of the aforesaid complaint being lodged, it came to be registered as Criminal Case No. 1707 of 1989.
2.1 The learned Chief Metropolitan Magistrate has considered the material and evidence adduced by the complainant-Board and having not found sufficient material, he did not frame the charges and came to the conclusion that there is prima facie nothing on record to establish that the accused have committed the alleged offence under Sections 43 and 44 of the Act and ultimately, passed the impugned judgement and order discharging the accused persons.
2.2 It is against this judgement and order, the present appeal has been preferred by the appellant-Board on various grounds inter alia that the learned Magistrate has erred in discharging the accused persons for the offence under Section 44 of the Act and has not followed the provisions of Section 245 of the Code. It is also contended that while taking the evidence or deciding as to whether the charges are required to be framed against the accused persons, the learned Magistrate has failed to appreciate the evidence adduced by the prosecution and has wrongly discharged the accused. It has also been contended that while taking the evidence for the purpose, the learned Magistrate is required to consider as to whether any prima facie case has been made out or not. It has also been contended that the learned Magistrate has assumed that the inspection report has not stated the details and therefore, it cannot be believed.
3. Mr.
Yogesh Lakhani, learned Counsel for the appellant, has referred to the material and evidence on record and has submitted that at the stage of framing of the charge only prima facie case is required to be seen. He submitted that the learned Magistrate ought to have followed the provisions of Section 245 of the Code and while recording the evidence, ought to have considered the material produced by the appellant-Board as sufficient and ought not to have discharged the respondents-accused persons. He submitted that the learned Magistrate has failed to appreciate the provisions of law and particularly, he has not appreciated that only prima facie case was required to be seen on the basis of the material and evidence produced. He submitted that the learned Magistrate has wrongly and erroneously observed that the Board has failed to produce any evidence. He also submitted that the learned Magistrate has also failed to consider the analysis report prepared by the analyst and has erroneously recorded the order of discharge. However, he fairly conceded that the report does suffer from some defects as, admittedly, it is not clear as to whether the sample collected was sealed or not and it is also not reflected in the report. Similarly, the parameters or criteria are also not clearly reflected. He also conceded that the view expressed by the learned Metropolitan Magistrate in the impugned judgement and order recording discharge cannot be said to be perverse or cannot be said to be suffering from illegality or manifest error of law in ignoring the relevant material on record.
4. Mr.
K. P. Raval, learned Additional Public Prosecutor, has also referring to the material and evidence on record, conceded that as stated by the learned Counsel, Mr. Y. S. Lakhani, the impugned judgement and order recording discharge of the accused persons cannot be said to be perverse.
5. On appreciation and scrutiny of the evidence and in light of the submissions made by the learned Counsel, Mr. Y. S. Lakhani, for the appellant, it is required to be appreciated that whether the impugned judgement and order recording the discharge of the accused persons is perverse and whether it calls for any interference by this Court. From the scrutiny of the evidence, it appears that the notices were served upon the respondents-original accused and thereafter, the Officer of the appellant-Board visited the premises of respondent No.1 and collected the sample in presence of respondent No.7-Manager. On close scrutiny of the evidence, it appears that admittedly, no seal was applied on the sample collected for analysis and it has been discussed and reflected in the impugned judgement and order by specifically recording that there is no mention about the fact that the sample was sealed. Further, the parameters or criteria for the purpose of comparison are also not produced by the appellant-Board, which is also referred to and reflected in the impugned judgement. Admittedly, the complaint has been lodged by the appellant-Board with regard to non-treatment of the trade effluent discharged by respondent No.1-original accused firm, alleging commission of the offence under Sections 43 and 44 of the Act. The provisions thereof make it clear that it has to be established by the Board with regard to non-compliance thereof, meaning thereby, when the samples are taken by the Board or its officers, which are tested in its own laboratory and the report is also prepared by its own officer, then, why so much of discrepancies crept in while following the procedure and not complying with the provisions of the Act. As discussed, the very basis for framing the charges for the prima facie case itself were not fulfilled. Therefore, though the learned Counsel, Mr. Lakhani, has submitted that only the prima facie case is required to be seen, but, in the facts of the present case even for prima facie case with regard to the alleged breach or non-compliance of the provisions of the Act, the same is required to be established on the basis of the sample collected, its analysis report and the parameters or criteria on the basis of which it could be compared as to whether there is any breach or violation of the norms. Admittedly, when no such parameters or criteria have been produced and the report itself suffers from some defects, the Board cannot be said to have produced sufficient material and evidence to make out even a prima facie case.
6. Another facet of the argument with regard to non-compliance of Section 245 of the Code also cannot be accepted as when there is no sufficient material to establish even the prima facie case, as discussed above, the charges could not be framed. It is only if on the basis of the material produced, the involvement or ingredients for the offences are prima facie made out, the charges could be framed and thereafter, it could be decided on merits at the trial.
7. It is in these circumstances, on appreciation and scrutiny of evidence on record, it would be evident that the view taken by the learned Magistrate, recording the discharge, cannot be said to be perverse, but, possible and this Court is in agreement with the conclusions arrived at and therefore, it may not be necessary to elaborate on this aspect and scrutinise the evidence threadbare, as observed by the Honourable Apex Court in its judgement in the case of State of Karnataka vs. Hemareddy & Anr., reported in AIR 1981 SC 1417.
8. Moreover, in light of the judgement of the Honourable Apex Court in the case of State of Goa vs. Sanjay Thakran & Anr., reported in (2007) 3 SCC 755, wherein it has been clearly observed, referring to the scope of interference by the appellate court, that the appellate court can review the evidence and interfere with the order of acquittal/discharge only if the approach of the lower court is vitiated by some manifest illegality or the decision is perverse and the court has committed a manifest error of law and ignored the material evidence on record. In the facts of the present case, it cannot be said that there is any such manifest illegality or error of law or that the learned Metropolitan Magistrate has ignored the material and evidence on record.
9. Therefore, in view of the discussion made hereinabove, the impugned judgement and order dated 11th October, 1992 passed by the learned Chief Metropolitan Magistrate, Ahmedabad in Criminal Case No.1707 of 1989 is possible, reasonable and on appreciation of evidence, broadly the conclusion arrived at is just and proper and therefore, this Court is not inclined to interfere with the discharge of the accused persons recorded by the learned Chief Metropolitan Magistrate. Therefore, the impugned judgement and order passed by the learned Chief Metropolitan Magistrate recording discharge of the accused is hereby confirmed and the present appeal is required to be dismissed.
10. In the result, the present appeal hereby stands dismissed.
[R.
H. Shukla, J.] kamlesh* Top