AZIM HASHAN PREMJI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This petition under Section 482 of the Code of Criminal Procedure, 1973 prays quashing of the proceedings in Criminal Case No.6 of 1990 pending in the Court of the learned 5th Joint Judicial Magistrate, First Class at Bhavnagar wherein processes are ordered to be issued to the seven accused, including the five petitioners. The original accused No.1 is the company of which the present petitioners are directors and the accused No.7 is the factory manager. The accused No.1 company and the accused No.7 factory manager have not filed any petition for quashing, but are joined as respondents No.4 and 5 in the present petition.

(2.) It is the case of the petitioners that the company has nominated, constituted and appointed, for its Division at Bhavnagar, the attorney of the company to do, perform and execute for and on behalf of the company the acts, deeds and things as specified in the power of attorney. They had obtained, for its factory at Bhavnagar, the consent under Sections 25 and 26 of the Water (Prevention and Control of Pollution) Act, 1974 (the Act) for the use of existing/new outlet for discharge of effluent. The company had put up an effluent treatment plant, which had to be shut down for repairs. However, due to heavy rains, the repairs remained incomplete and the effluent treatment plant was partially recommissioned. Then, samples of discharge were drawn by the Gujarat Pollution Control Board (the Board, for short) and after analysis thereof, a show cause notice as to why legal action should not be initiated was served upon the company. Thereafter, Criminal Case No.6 of 1990 was filed for violations of the provisions of Sections 24 and 25 punishable under Sections 43 and 44 read with Section 47 of the Act. It is the case of the petitioners that the allegations contained in the complaint did not disclose any offence, and particularly the allegations did not connect the present petitioners with any offence. Thus, according to the petitioners, the trial Court has taken cognizance of the alleged offence and ordered to issue the process without forming any opinion and without application of mind. It is contended that the petitioners, who are directors, do not necessarily have any executive powers or functions and, by virtue of their office, do not have the ultimate control over the affairs of the company's factory. Instead, if the company had, by a resolution of the board of directors, put an officer in the ultimate control of the affairs of the factory, that officer would be the occupier and in charge of that factory.

(3.) In the context of these contentions, it would be necessary to refer to certain relevant parts of the complaint filed by the Board through its Environmental Engineer. It is stated in the complaint that the complaint is filed pursuant to a sanction order and default data sheet; that the accused No.2 to 7 were responsible for and in charge of the conduct of the business of the company; that the accused had been manufacturing vegetable oil and acidic oil, caustic soda, hydrogenic oil etc. using raw materials like edible oil, phosphoric acid, borax, citric acid, earth carbon, sulphuric acid, hexane, caustic soda, nickel catalyst etc. and consumed a substantial quantity of water and discharged about 20,000 litres of trade effluent daily; that the accused had not obtained any consent as required under the relevant Rules for a long time since its inception but, after initiation of effective steps, the accused were forced to obtain the requisite consent order; that the consent order granted for discharging the trade effluent under Section 25 of the Act subject to various obligatory terms and conditions contained therein, inter alia, stipulated that all necessary treatment plants should be set up very soon so as to achieve the quality of trade effluent according to the tolerance limit. However, it was observed that the treatment plants of the company were never working at the time of the monitoring inspection visits and the accused No.2 to 7 used to take shelter under one or the other fabricated pretexts. That despite the repeated follow-up actions, the accused failed to provide effective functioning of the treatment plants which resulted into hazardous and dangerous water pollution harmful to human beings, creatures and plants. That after undergoing the necessary legal procedure and formalities of taking samples and having them analysed, it was established that the accused had not provided proper treatment facilities and untreated trade effluent was being drained into the sea. Thus, it is alleged in the complaint that the accused had violated the terms and conditions prescribed in the consent order and, for a considerable time, the accused had been evading implementation of the conditions violating the provisions of Section 25 of the Act. On these allegations, the complaint prays to issue processes against the accused for being dealt with according to law. A statement of the complainant, the Environmental Engineer of the Board, is recorded below the complaint wherein the directors and the factory manager of the company are again alleged to be responsible persons.