Gujarat Pollution
Control Board Vs. M/S Nicosulf Indst.& Export Pvt. Ltd & Ors [2008]
INSC 2087 (4 December 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 9 OF 2002 Gujarat
Pollution Control Board ....Appellant Versus M/s Nicosulf Industries &
Export Pvt. Ltd. and Ors. ....Respondents
Dr. ARIJIT PASAYAT, J
1.
Challenge
in this appeal is to the judgment of a learned Single Judge of the Gujarat High
Court allowing the Revision Petition filed by the respondents 1 and 2.
2.
A
complaint under Sections 24, 25, 43, 44 and 47 of the Water (Prevention and
Control of Pollution) Act, 1974 (in short the `Act') was filed by the Assistant
Environmental Engineer on behalf of the Gujarat Pollution Control Board (in
short the `Board') against a private limited company i.e. M/s Nicosulf
Industries & Exports Private Limited-respondent no.1 and its co-directors
Kishanbhai M. Narsinh, Mihirbhai G. Virji and Dushyant P. Lejawala alleging
inter-alia that the accused nos. 2, 3 and 4 are producing Nicotine Sulphate in
their factory and using Tobacco Stuff, Lime, Kerosene and Sulphuric Acid as
raw-materials, and during the course of the process of production they are
discharging 10,800 litres of polluted water every day. Under sections 24 and 25
of the Act, every industry is compulsorily required to obtain prior permission
or approval of the Board for discharging its polluted water used by it either
within or outside the industry as per section 25(i) of the Act. Permission was
granted by imposing certain conditions to the accused persons. If the industry
commits breach of conditions, complaint can be filed, which in the instant case
was filed alleging that there was breach of condition no.4, as a result of
which, under condition no.7, the consent order automatically lapsed. The
accused nos.2, 3 and 4 were said to be responsible officers managing day-to-day
affairs of the company. On 22-6-1989, a sample of polluted water was collected
from the industry. It was analysed by the Laboratory of the Board, which
reported that the effluent did not conform to the prescribed standards.
The report of the
analyst was given on 8-7-1989. Thereafter, show-cause notice was issued to the
accused persons. A complaint was accordingly filed.
3.
The
learned Magistrate convicted all the four accused under sections 24, 25, 43 and
44 of the Act.
4.
The
judgment of the Lower Appellate Court was challenged on four grounds before the
High Court.
5.
The
first ground of attack was that the complainant had no authority to file the
complaint. Hence, the entire prosecution structure collapsed and order of
conviction and sentence against the revisionists cannot be maintained. The
second ground of attack was that the offence was alleged to have been committed
by the Company and the directors of the company can be held liable only when it
is established by the prosecution that the directors were managing day to day
affairs of the company. The third attack was that even on merits breach of
condition No.4 of the consent or permission order is not established. The last
attack was that the sample of alleged polluted water was collected in breach of
the provisions of Section 21 of the Act.
6.
Main
ground of challenge is that the complainant had no authority to file the
complaint and this ground alone was sufficient to set aside the order of
conviction and sentence maintained by the first Appellate Court.
7.
Reference
was made to the complaint which shows that it was filed by one AA Dalauti,
Assistant Environmental Engineer on behalf of the appellant-Board. It was
pointed out that Shri Dalauti had no delegated authority as required under
Section 49 of the Act and as such the complaint was filed by an incompetent
person. Reference was made to Section 49 of the Act in this regard.
Specifically with reference to Section 49(i)(a) of the Act, the High Court held
that the complaint had not been filed by the Board as defined under Section
2(h) of the Act. Though the High Court felt that on this ground alone the
petition was bound to succeed, yet it considered the other aspects and set
aside the order of conviction and sentence as imposed.
8.
In
support of the appeal, learned counsel for the appellant submitted that prior
to amendment the expression used was "previous sanction of the Board"
but after the amendment it was "authorized in this behalf by it". It
is pointed out that in exercise of powers under Section 11-A of the Act, the
Board delegated to the Chairman the power of sanctioning prosecution vide
Resolution dated 27.3.1984. In exercise of this power the Chairman sanctioned
as well as authorized complainant to file the complaint in the present case by
his order dated 18.8.1989.
9.
It
is submitted that while considering the validity and/or effectiveness of the
order, the High Court proceeded on erroneous presumption that Section 49 was
applicable at the time when the present complaint was filed.
According to the
appellant, though the complaint was filed on 17.10.1989, prior to that Section
49 was amended by Act 53 of 1988 w.e.f. 29.9.1988.
So far as the State
of Gujarat is concerned, the amendment became effective only when the Gujarat
Legislative Assembly passed a resolution adopting the amendment on 29.9.1999
which was notified on 28.10.1999. It is submitted that the Act is an enactment
pursuant to Article 252 of the Constitution of India, 1950 (in short the
`Constitution'). The Act is relatable to inter-alia Entry 17 of List II,
namely, the water that is to say "water supplies, irrigation and canals,
drainage and embankments....". In any case, the Parliament as well as all
State Legislatures have all along acted on the basis that Act has been enacted
pursuant to powers under Article 252 of the Constitution. Further in Preamble
to the Act there is categorical assertion by the Parliament to the effect that
"And whereas Parliament has no power to make laws for the States with
respect to any of the maters aforesaid except as provided in Articles 249 and
250 of the Constitution". It is, therefore, submitted that it was never
challenged by the respondents 1 and 2. They cannot be permitted to urge that
the Act was not passed pursuant to Article 250 of the Constitution. The passing
of the resolution by the State Legislature of two or more States is a condition
precedent for investing the Parliament with the power to make a law on that
topic or matter and then it shall be lawful for the Parliament to make a law
for regulating that matter accordingly. The law so made or enacted by the
Parliament under Article 252(1) of the Constitution will apply only to those
States whose legislatures have passed resolutions under that provision and also
to such States which have afterwards adopted the same by resolution passed by
the legislatures of such States in that behalf. Therefore, at the relevant
point of time the unamended Section 49 was applicable and delegation to the
chairman of the power to sanction prosecution by the Board was valid and effective.
Even otherwise resolution dated 27.3.1984 clearly establishes that the Board
delegated to the Chairman the power of sanctioning prosecution. Therefore, this
was valid and effective even for the purpose of amended Section 49(1)(a) of the
Act. Section 49 is in two parts namely (i) a complaint made by the Board and
(ii) by any officer authorized in this behalf by it. The delegation of the
power of sanctioning prosecution in favour of the Chairman can always be read
as the power of authorizing prosecution after Section 49 was amended.
10.
The
Inspection Report clearly establishes the name of accused No.3 as the person in
charge of the unit. In the statement recorded under Section 313 of the Code of
Criminal Procedure, 1973 (in short the `Code') A-3 has clearly admitted that
the same is true. Reference is also made to Section 21 which deals with power
to take samples of effluents and procedure to be followed in connection
therewith.
11.
In
response, learned counsel for the respondents 1 and 2 submitted that the High
Court had clearly recorded that the conditions required compliance with the
water standards if water over-flowed from the solar evaporation pans and the
sample taken was from the drain that ran from the factory to the evaporation
pans. On the aforesaid basis, the High Court came to hold that there had been
no violation of the terms of the Water Act.
The submission of the
prosecution that the water flows from the factory to the pans in a kachcha
drain thereby there was violation of conditions is not based on materials in
the sense that it was not the basis for the complaint and was also not the
basis of judgments of courts below.
12.
Learned
counsel for the respondent submitted that the question is whether the amended
provisions apply and the authorization has to be by the State Board. That
question need not be gone into as the prosecution was required to prove that
the solar evaporation pan maintained by the company had over flown and the over
flown effluent did not conform to the tolerance limits prescribed. The
documents on record clearly establish that the company was discharging its
effluent into the drain leading to the solar evaporation pan i.e. into the
solar evaporation pan. There was nothing to show that any sample of any over
flown effluent has been taken. It is pointed out that the sample taken on
22.6.1989 is not of over flown effluent, but of effluent which was on the way
to the solar evaporation pan for further treatment. It is also submitted that
Section 21(5) obliges the Board to forward the sample for the purpose of
analysis. In the instant case the sample was taken on 22.6.1989 and was
received on 28.6.1989. The delay has not been explained.
13.
There
is no substantial difference in the language of the amended Section 49. The
High Court proceeded on the basis that the complaint was illegal since the
complaint filed was not duly authorized. Though the High Court proceeded on the
basis of amended Section 49, the amended as well as un-amended provisions
require the State Board to file a complaint or to authorize any of its officers
to file the complaint. The authorization has to be by the State Board.
According to the Board under Section 11-A of the Act it had delegated to the
Chairman the power to authorize an officer to file a complaint. Resolution
dated 27.3.1984 refers to the delegation of power to sanctioning prosecution.
The High Court has held that the power to sanction a complaint is distinct from
the power to authorize the complaint. This view is clearly unsustainable for
the reason that if the provisions are construed in the context that as a check
over the complaint filed, then the grant of sanction to file a complaint would
be in law an authorization to file the complaint. The stand of the appellant
that the difference between sanction and authorization in the context of
provisions of the Act and incontra- distinction to the provisions of IPC and
the Code is more semantic than real.
The stand is well
founded. The appeal can be disposed of on the ground that factually there is
nothing to show that the sample collected was from the over-flown effluent. The
evidence on record clearly shows that the effluent was on the way to the solar
evaporation pans for further treatment.
The said effluent
would never meet the parameters prescribed as it is yet to be treated. Thus,
the alleged breach of condition No.4 has not been proved.
On that ground alone
the appeal deserves to be dismissed. In view of this conclusion it is not
necessary to go into the other aspects as to what is the effect of the resolution
of the State notified on 28.10.1999 i.e. after the date of amendment of the
statute of Section 49 on 29.9.1999. The authorization by the Chairman was on
18.8.1989. In view of the factual aspects highlighted, the appeal deserves to
be dismissed which we direct.
...................................J.
(Dr. ARIJIT PASAYAT)
...................................J.
(P. SATHASIVAM)
...................................J
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