U P POLLUTION CONTROL BOARD Vs. MODI DISTILLERY

JUDGEMENT

(1.) This appeal by special leave is directed against the judgment And order of the High Court of Allahabad dated May 16, 1984 setting aside in its revisional jurisdiction an order of the Chief Judicial Magistrate, Gaziabad dated November 3, 1983 directing the issue of process against the respondents on a complaint filed by the appellant under Section 44 of the Water (Prevention and Control of Pollution) Act, 1974. The issue involved is whether the Chairman, Vice-Chairman, Managing Director and members of the Board of Directors of Messers Modi Industries Limited, the Company owning the industrial unit called Messers Modi Distillery could be proceeded against on a complaint against the said industrial unit. A learned single Judge (K.C. Agarwal J.) following the decision of this court in State (Delhi Admn.) v. I.K. Nangia (1980) 1 SCC 258 interpreting a similar provision contained in sub-s.(4) of S. 17 of the Prevention of Food Adulteration Act, 1954 has held that there was no sufficient ground against the respondents inasmuch as the allegations made in the complaint do not constitute an offence punishable under Section 44 for the admitted contravention of Ss. 25(1) and 26 read with S. 47 of the Act. The question essentially turns upon the rule of construction to be adopted in S. 47.

(2.) The facts of the case are these. Messers Modi Industries Limited is an existing company under the Companies Act, 1956. It is a large business organisation having diversified business activities. Prior to the commencement of the Act it had established an industrial unit called Messers Modi Distillery at Modi Nagar, Gaziabad engaged in the business of manufacture and sale of industrial alcohol. During the process of manufacture of such industrial alcohol, the said industrial unit discharges its highly noxious and polluted trade effluents into the Kali River through the Kadrabad Drain which is a stream within the meaning of S. 2(j) of the Act and thereby causes continuous pollution of the said stream without the consent of the Board and therefore it falls within the purview of S. 26. Under the provisions of S. 26, as amended, it has been made mandatory for every existing industry to obtain the consent of the Board for discharging its trade effluent into a stream or well or sewer or on land. The last date for submission of such application seeking the consent of the Board by an existing industry had been extended up to December 31, 1981. In accordance with the procedure laid down under Ss. 25(1) and 26 of the Act, the Company was required to submit an application for consent of the Board in the prescribed form along with the prescribed consent fee and the particulars. Instead of the Company its industrial unit, namely, Messers Modi Distillery on March 27, 1981 applied to the Board for grant of consent to discharge its trade effluents into the stream. The aforesaid application was scrutinised by the Board and found incomplete in many respects. The Board accordingly by its letter dated April 29, 1981 informed the said industrial unit with regard to the discrepancies and the particulars wanting. There was no response from the respondents nor did they rectify the discrepancies pointed out or furnish the particulars required. The Board accordingly by its letter dated July 30, 1981 refused to grant the consent prayed for in the public interest since the application was found incomplete in many respects and also because the said industrial unit did not have proper arrangements for treatment of its highly polluted trade effluents. Thereafter, the Board by its letter dated June 30, 1982 issued a notice under S. 20 of the Act directing the Company to furnish certain information regarding the particulars and names of the Managing Director, Directors and other persons responsible for the conduct of the Company, but the respondents did not furnish the information called for. This was followed by two subsequent letters of the Board dated February 21, 1983 and June 9, 1983 drawing the attention of the respondents that they were deliberately violating the provisions of the Act and thereby rendering themselves liable to be punished under S. 44 for contravention of the provisions of Ss. 25(1) and 26. On October 21, 1983 the Board lodged a complaint against the respondents under S. 44 of the Act in the Court of the Chief Judicial Magistrate, Gaziabad. Unfortunately, the complaint was inartistically drafted. It was averred in paragraph 2 that Messers Modi Distillery i.e. the industrial unit was a company within the meaning of S. 47 of the Act, that it had been knowingly and wilfully discharging its highly noxious and polluted trade effluents into the Kali River which is a stream within the meaning of S. 2(j) of the Act through the Kadrabad Drain and thereby causing continuous pollution of the said stream. There were eleven persons arrayed as accused. Instead of launching a prosecution against Messrs Modi Industries Limited, the Board impleaded its industrial unit Messers Modi Distillery as respondent No. 1 while respondents Nos. 2, 11 were the Chairman, Vice-Chairman, Managing Director and members of the Board of Directors of Messrs Modi Industries Limited i.e. the Company owning the industrial unit.

(3.) It appears that the respondents did not appear before the learned Chief Judicial Magistrate in response to the notice issued to them. The learned Magistrate after recording the statement of S. N. Pandey, Legal Assistant of the Board directed the issue of process to the respondents. Aggrieved, respondents Nos. 2, 3 and 4, namely, K. N. Modi, K. K. Modi and M. L. Modi, the Chairman, Vice-Chairman and Managing Director respectively of Messrs Modi Industries Limited preferred a revision before the High Court under S. 397 of the Code of Criminal Procedure, 1973. Two of the other accused, namely, S.C. Trikha and Reghunath Rai, the nominated members of the Board of Directors of the Company also filed an application before the High Court under S. 482 of the Code for quashing the proceedings. As already stated, a learned single Judge invoking the revisional jurisdiction of the High Court has quashed the proceedings on the ground that there could be no vicarious liability saddled on the Chairman, Vice-Chairman, Managing Director and other members of the Board of Directors of the Company under S. 47 of the Act unless there was a prosecution of the Company i.e. Messrs Modi Industries Limited. He held that the complaint suffers from the serious legal infirmity and in the circumstances, to allow the proceedings to continue would amount to an abuse of the process of the Court.