DAHYABHAI SOLANKI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By this Revision Application under Section 397 of the Code of Criminal Procedure (for short 'the Cr.P.C.'), the Law Officer of the Gujarat Pollution Control Board ('the GPCB' for short) has prayed to set aside the judgment and order of the learned Chief Metropolitan Magistrate, Ahmedabad in Criminal Case No.2487 of 1988 whereunder the accused persons (the respondents No. 2 to 4 herein) are discharged under Section 245 of the Cr.P.C.; even before framing of the charge.

(2.) The Law Officer of the GPCB filed a complaint against the accused persons ('the respondents' for short) on the basis that the accused, a company headed and run by its two directors, were manufacturing approximately 15 tons of H.Acid per month and discharging, from their factory, the trade effluents, in the form of 4.50 lac litres of water per month, without any treatment at all. They had applied for consent under the Water (Prevention and Control of Pollution) Act, 1974 ('the Act' for short) which was rejected by order dated 31.7.1987 in which conditions regarding discharge of effluent were also imposed under the provisions of Section 25 of the Act. Thereafter, on 19.1.1988, the premises of the factory of the respondents was inspected and, in presence of the Manager, sample of the trade effluent was taken. Upon analysis of the sample, the respondents were alleged to have discharged the trade effluent without any treatment and alleged to have violated the provisions of Sections 25 and 26 of the Act and thereby committed the offences punishable with imprisonment for a term not less than one year and six months and which may extend to six years and with fine under Section 44 of the Act. 2.1 The case being a warrant case instituted by a complaint, the Court recorded the evidence produced in support of the prosecution and, after hearing the parties, the impugned judgment and order dated 10.1.1992 at Exh.22 was made. After recording the reasons, it was concluded that the prosecution had not complied with the provisions of Sections 21 (5) and 22 (2) of the Act and the requirements of Indian Standard Method of Sampling" were also held to have been violated. It was further held that the prosecution had also, while taking samples, not complied with the requirements of the Cr.P.C. as required under the provisions of Section 23 of the Act insofar as no panch or independent witness was found to have been present at the time of inspection of the plant and seizure of the sample. Thus, the respondents were discharged upon the finding that the prosecution had failed to establish even a prima facie case against them.

(3.) In order to appreciate the import of the relevant provisions of Sections 21, 22 and 23 of the Act and to apply the same in the facts of the present case, it would be advantageous to reproduce the relevant parts thereof as under: "21. Power to take samples of effluents and procedure to be followed in connection therewith: 1 A State Board or any officer empowered by it in this behalf shall have power to take for the purpose of analysis samples of water from any stream or well or samples of any sewage or trade effluent which is passing from any plant or vessel or from or over any place into any such stream or well. 2 The result of any analysis of a sample of any sewage or trade effluent taken under sub-section (1) shall not be admissible in evidence in any legal proceeding unless the provisions of sub-sections (3), (4) and (5) are complied with. 3 Subject to the provisions of sub-sections (4) and (5), when a sample (composite or otherwise as may be warranted by the process used) of any sewage or trade effluent is taken for analysis under sub-section (1), the person taking the sample shall- (a) serve on the person in charge of, or having control over, the plant or vessel or in occupation of the place (which person is hereinafter referred to as the occupier) or any agent of such occupier, a notice, then and there in such form as may be prescribed of his intention to have it so analysed; (b) in the presence of the occupier or his agent, divide the sample into two parts; (c) cause each part to be placed in a container which shall be marked and sealed and shall also be signed both by the person taking the sample and the occupier or his agent; (d) send one container forthwith,- (i) in a case where such sample is taken from any area situated in a Union Territory, to the laboratory established or recognised by the Central Board under Sec.16; and (ii) in any other case, to the laboratory established or recognised by the State Board under Sec.17; (e) on the request of the occupier or his agent, send the second container- (i) in a case when such sample is taken from any area situated in a Union Territory, to the laboratory established or specified under sub- section (1) of Sec.51; and (ii) in any other case, to the laboratory established or specified under subsection (1) of Sec.52. 4 When a sample of any sewage or trade effluent is taken for analysis under sub-section (1) and the person taking the sample serves on the occupier or his agent, a notice under Cl.(a) of sub-section (3) and the occupier or his agent wilfully absents himself then,- (a) the sample so taken shall be placed in a container which shall be marked and sealed and shall also be signed by the person taking the sample and the same shall be sent forthwith by such person for analysis to the laboratory referred to in sub-clause (i) or sub-clause (ii), as the case may be, of Cl.(e) of sub-section (3) and such person shall inform the Government Analyst appointed under sub-section (1) or sub-section (2), as the case may be of Sec.53, in writing about the wilful absence of the occupier or his agent; and (b) the cost incurred in getting such sample analysed shall be payable by the occupier or his agent and in case of default of such payment, the same shall be recoverable from the occupier or his agent, as the case may be, as an arrear of land revenue or of public demand. 5 When a sample of any sewage or trade effluent is taken for analysis under sub-section (1) and the person taking the sample serves on the occupier or his agent a notice under Cl.(a) of sub-section (3) and the occupier or his agent who is present at the time of taking the sample does not make a request for dividing the sample into two parts as provided in Cl. (b) of sub-section (3), then, the sample so taken shall be placed in a container which shall be marked and sealed and shall also be signed by the person taking the sample and the same shall be sent forthwith by such person for analysis to the laboratory referred to in sub-clause (), or sub-clause (ii), as the case may be, of Cl. (d) of sub-section (3)." "S.22 Reports of the result of analysis on samples taken under Sec.21:- (1) Where a sample of any sewage or trade effluent has been sent for analysis to the laboratory established or recognised by the Central Board or, as the case may be, the State Board, the concerned Board analyst appointed under sub-section (3) of Sec.53 shall analyse the sample and submit a report in the prescribed form of the result of such analysis in triplicate to the Central Board or the State board, as the case may be. (2) On receipt of the report under subsection (1), one copy of the report shall be sent by the Central Board or the State Board, as the case may be, to the occupier or his agent referred to in Sec.21, another copy shall be preserved for production before the Court in case any legal proceedings are taken against him and the other copy shall be kept by the concerned Board. (3) xxx xxx xxx (4) xxx xxx xxx (5) xxx xxx xxx " "S.23 Power of entry and inspection:- (1) Subject to the provisions of this Section, any person empowered by a State Board in this behalf shall have a right at any time to enter, with such assistance as he considers necessary, any place- (a) for the purpose of performing any of the functions of the Board entrusted to him; (b) for the purpose of determining whether and if so in what manner, any such functions are to be performed or whether any provisions of this Act or the rules made thereunder or any notice, order, direction or authorisation served, made, given, or granted under this Act is being or has been complied with; (c) for the purpose of examining any plant, record, register, document or any other material object or for conducting a search of any place in which he has reason to believe that an offence under this Act or the rules made thereunder has been or is being or is about to be committed and for seizing any such plant, record, register, document or other material object, if he has reason to believe that it may furnish evidence of the commission of an offence punishable under this Act or the rules made thereunder: Provided that the right to enter under this sub-section for the inspection of a well shall be exercised only at reasonable hours in a case where such well is situated in any premises used for residential purposes and the water thereof is used exclusively for domestic purposes. (2) The provisions of the Code of Criminal Procedure Code, 1973 92 of 1974) or, in relation to the State of Jammu and Kashmir, the provision of any corresponding law in force in that State, shall, so far as may be, apply to any search or seizure under this section as they apply to any search or seizure made under the authority of a warrant issued under Sec.94 of the said Code, or, as the case may be, under the corresponding provisions of the said law. Explanation: For the purposes of this section, "place" includes vessel."