Bombay High CourtAPEAL/1237/2002appeal dismissed

Maharashtra Pollutiuon Control Board v. M/S Deepak Fertilisers And ORS.

2017-09-08Hon'Ble Shri Justice Sandeep Kashinath Shinde9 pages

* 1/9 * APEAL-1237-2002.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1237 OF 2002 Maharashtra Pollution Control Board Chattrapati Shivaji Maharaj Municipal Market Building, 4th Floor, Mata Ramabai Ambedkar Marg, Bombay-400 001 represented by Shri S.S.Doke, Sub-Regional Officer, Bombay III Maharashtra Pollution Control Board, CIDCO Bhavan, 5th Floor (South Wing), Navi Mumbai ......Appellants V/s.

1 M/s. Deepak Fertilisers and Petro Chemicals Corporation Ltd., Plot No.K-1, 2,3,4,5,6,7 & 8 MIDC Industrial Area, Taloja, District: Raigad.

2 Shri R.R.Kotwal, Vice President (Operation) M/s. Deepak Fertilisers and Petro Chemicals Corporation Ltd., Plot No.1,2,3,4,5,6,7 & 8 MIDC Industrial Area, Taloja, District: Raigad 3 Shri N.N.Manak, General Manager (Works), M/s. Deepak Fertilisers and Petro Chemicals Corporation Ltd., Plot No.1,2,3,4,5,6,7 & 8 MIDC Industrial Area, Taloja, District: Raigad .......Respondents

* 2/9 * APEAL-1237-2002.doc Ms. Prabha Badadare i/by Shri Rajendra Desai , Advocates for Appellants.

Mr. Manoj J. Bhatt , Advocate for Respondents.

CORAM

: SANDEEP K. SHINDE, J.

RESERVED ON :

August 18, 2017.

PRONOUNCED ON: September 8, 2017 PRONOUNCED ON: September 8, 2017 JUDGMENT :

JUDGMENT :

The Maharashtra Pollution Control Board ('

The Maharashtra Pollution Control Board ('MPCB MPCB'

for short) has preferred this Appeal under Section 378(4) of for short) has preferred this Appeal under Section 378(4) of the Code of Criminal Procedure, 1973 against the judgment the Code of Criminal Procedure, 1973 against the judgment and order dated 25.10.2001 passed by the learned Additional and order dated 25.10.2001 passed by the learned Additional Sessions Judge, Raigad, Alibag in Criminal Appeal No.6 of Sessions Judge, Raigad, Alibag in Criminal Appeal No.6 of 1997 whereby the Respondent No.1-Company was acquitted of 1997 whereby the Respondent No.1-Company was acquitted of the offences punishable under Sections 24 read with Section the offences punishable under Sections 24 read with Section 43 of the Water (Prevention and Control of Pollution) Act, 43 of the Water (Prevention and Control of Pollution) Act, 1974.

1974.

Heard the learned counsel for the Appellants and Heard the learned counsel for the Appellants and the learned counsel for the Respondent No.1-Company. the learned counsel for the Respondent No.1-Company. Perused the records and proceedings and the judgment and Perused the records and proceedings and the judgment and order passed at the first instance by the learned JMFC, Panvel order passed at the first instance by the learned JMFC, Panvel in Regular Criminal Case No.122 of 1994 dated 20.12.1996 in Regular Criminal Case No.122 of 1994 dated 20.12.1996

* 3/9 * APEAL-1237-2002.doc and the judgment and order dated 25.10.2001 passed in the and the judgment and order dated 25.10.2001 passed in the Criminal Appeal No.6 of 1997 by the learned Additional Criminal Appeal No.6 of 1997 by the learned Additional Sessions Judge, Raigad, Alibag.

Sessions Judge, Raigad, Alibag.

The MPCB had filed a complaint against the The MPCB had filed a complaint against the Respondent No.1 and two of its officers under Sections 43, 44, Respondent No.1 and two of its officers under Sections 43, 44, 45(A) read with Sections 24,25, 26 of the Water (Prevention 45(A) read with Sections 24,25, 26 of the Water (Prevention and Control of Pollution) Act, 1974 (Hereinafter referred to as and Control of Pollution) Act, 1974 (Hereinafter referred to as the 'Said Act') on 21.4.1994. It is the complainant's case that the 'Said Act') on 21.4.1994. It is the complainant's case that the Respondent No.1 is the limited company incorporated the Respondent No.1 is the limited company incorporated under the provisions of the Companies Act, 1956. The other under the provisions of the Companies Act, 1956.

The other two accused were persons in-charge and responsible to two accused were persons in-charge and responsible to conduct the business of the accused company and in that conduct the business of the accused company and in that capacity, they were jointly and severally liable for noncapacity, they were jointly and severally liable for noncompliance of consent conditions and discharge of polluted compliance of consent conditions and discharge of polluted water from the factory of Accused No.1 into the environment water from the factory of Accused No.1 into the environment not conforming to the standards prescribed by the Board in its not conforming to the standards prescribed by the Board in its consent issued to the Accused No.1 and the renewal of consent consent issued to the Accused No.

1 and the renewal of consent orders issued from time to time. The member secretary of the orders issued from time to time. The member secretary of the Board granted consent to Accused No.1 dated 10.1.1983 Board granted consent to Accused No.1 dated 10.1.1983 which was valid upto 31.1.1985 stipulating therein certain which was valid upto 31.1.1985 stipulating therein certain terms and conditions for operating plant by the Accused. One terms and conditions for operating plant by the Accused.

* 4/9 * APEAL-1237-2002.doc of the conditions relates to disposal whereunder the of the conditions relates to disposal whereunder the Respondents were under obligation to discharge treated Respondents were under obligation to discharge treated effluent in MIDC Sewage System; and until such facilities are effluent in MIDC Sewage System; and until such facilities are made available, it shall be disposed of into local nala. It is the made available, it shall be disposed of into local nala. It is the Complainant's case that the Respondents had discharged its Complainant's case that the Respondents had discharged its effluent in violation of the standard prescribed by the consent. effluent in violation of the standard prescribed by the consent. On 17.2.1994, sample of the said effluent was collected and On 17.2.

1994, sample of the said effluent was collected and analysed whereupon it was found that the Respondentanalysed whereupon it was found that the RespondentCompany was discharging the effluent causing environmental Company was discharging the effluent causing environmental hazard. The Complainant further alleged that on 17.2.1994, a hazard. The Complainant further alleged that on 17.2.1994, a sample was collected at the extreme end of the drain carrying sample was collected at the extreme end of the drain carrying the effluent of the factory of the accused. Samples were sent to the effluent of the factory of the accused. Samples were sent to the Government Analyst, Public Health Laboratory for the the Government Analyst, Public Health Laboratory for the analysis and also the Board Laboratory at New Bombay.

The analysis and also the Board Laboratory at New Bombay. The reports would show that parameters like suspended solids reports would show that parameters like suspended solids amonical nitrogen and nitrate nitrogen were not meeting the amonical nitrogen and nitrate nitrogen were not meeting the standards prescribed by the Board. In the complaint, it was standards prescribed by the Board. In the complaint, it was alleged that factory of the Respondent-Company was alleged that factory of the Respondent-Company was discharging highly alkaline water in Kasadi river and thereby discharging highly alkaline water in Kasadi river and thereby causing environmental pollution. On this set of allegations, the causing environmental pollution. On this set of allegations, the complaint was filed by the Board.

complaint was filed by the Board.

* 5/9 * APEAL-1237-2002.doc The learned JMFC after appreciating the evidence The learned JMFC after appreciating the evidence acquitted the officers of the said company, however, convicted acquitted the officers of the said company, however, convicted the company by the judgment and order dated 20.12.1996 the company by the judgment and order dated 20.12.1996 whereby company was convicted under Section 24 read with whereby company was convicted under Section 24 read with Section 43 of the said Act and imposed the fine of Rs.5,000/-. Section 43 of the said Act and imposed the fine of Rs.5,000/-.

Aggrieved by the conviction, the company had preferred an Aggrieved by the conviction, the company had preferred an Appeal before the Additional Sessions Judge, Alibag, Raigad Appeal before the Additional Sessions Judge, Alibag, Raigad who was pleased to acquit the company by the judgment and who was pleased to acquit the company by the judgment and order dated 25.10.2001. That against the said acquittal, the order dated 25.10.2001. That against the said acquittal, the Board has preferred this Appeal.

Board has preferred this Appeal.

As it appears from the record that sample was As it appears from the record that sample was collected on 17.2.1994 by the authorised officer of the Board collected on 17.2.1994 by the authorised officer of the Board and was sent for analysis to the State Laboratory and the and was sent for analysis to the State Laboratory and the laboratory of the Water Board. Therefore, the prosecution was laboratory of the Water Board. Therefore, the prosecution was in respect of alkaline effluent notice by the board. While taking in respect of alkaline effluent notice by the board. While taking sample on 17.2.1994, P.W.1-Complainant in his evidence had sample on 17.2.1994, P.W.

1-Complainant in his evidence had stated that effluent treatment plant of accused is connected by stated that effluent treatment plant of accused is connected by pipe to the effluent treatment at MIDC , Taloja. It appears from pipe to the effluent treatment at MIDC , Taloja. It appears from his evidence that compound wall of the accused factory is his evidence that compound wall of the accused factory is situated about 6/7 meters towards Kasadi river side from situated about 6/7 meters towards Kasadi river side from their effluent treatment plant structure. This witness their effluent treatment plant structure.

* 6/9 * APEAL-1237-2002.doc admitted that there were about 25 factories in MIDC, Taloja admitted that there were about 25 factories in MIDC, Taloja and effluent from all these factories were collected in MIDC and effluent from all these factories were collected in MIDC plant and effluent from MIDC plant was discharged in the plant and effluent from MIDC plant was discharged in the creek at MIDC, Taloja and the said creek is not part of the creek at MIDC, Taloja and the said creek is not part of the Kasadi river.

Kasadi river.

The Complainant had examined Mr. Fulmali, P.W.2 who The Complainant had examined Mr. Fulmali, P.W.2 who had collected sample on 17.2.1994. According to him, had collected sample on 17.2.1994. According to him, alongwith production manager of the accused factory, he took alongwith production manager of the accused factory, he took an effluent sample from the extreme end of the drain of the an effluent sample from the extreme end of the drain of the accused effluent treatment plant from a pipe carrying effluent accused effluent treatment plant from a pipe carrying effluent beyond effluent treatment plant. In cross-examination, he, beyond effluent treatment plant.

In cross-examination, he, however, admitted that there is distance of more than 17 however, admitted that there is distance of more than 17 meters between the effluent treatment plant and compound meters between the effluent treatment plant and compound wall of the company and the distance between the compound wall of the company and the distance between the compound wall and Kasadi river is more than 20 meters. It is his version wall and Kasadi river is more than 20 meters. It is his version that when he collected sample, he did not go beyond the that when he collected sample, he did not go beyond the compound wall. It also appears that he could not answer compound wall.

It also appears that he could not answer court's question, as to from which plant, he collected the court's question, as to from which plant, he collected the sample of effluent.

sample of effluent.

* 7/9 * APEAL-1237-2002.doc The learned Appellate Court upon appreciating the The learned Appellate Court upon appreciating the evidence of the Complainant and P.W.2-Mr. Fulmali has evidence of the Complainant and P.W.2-Mr. Fulmali has correctly concluded the factum of collection of sample at the correctly concluded the factum of collection of sample at the extreme end of the drain carrying effluent of the factory of the extreme end of the drain carrying effluent of the factory of the accused was doubtful. More so, it also appears from the accused was doubtful.

More so, it also appears from the evidence that the effluent treatment plant of the accused is evidence that the effluent treatment plant of the accused is connected by the pipe to the effluent treatment plant of the connected by the pipe to the effluent treatment plant of the MIDC, Taloja. In the given set of facts, it cannot be said that MIDC, Taloja.

In the given set of facts, it cannot be said that the finding recorded by the learned Appellate Court is the finding recorded by the learned Appellate Court is unreasonable and I do not find any compelling and substantial unreasonable and I do not find any compelling and substantial reasons to interfere with the finding recorded by the learned reasons to interfere with the finding recorded by the learned Appellate Court on the factum of collection of sample which Appellate Court on the factum of collection of sample which according to it was doubtful. That once it is held that the according to it was doubtful.

That once it is held that the factum of collection of sample was itself doubtful, all further factum of collection of sample was itself doubtful, all further steps taken in pursuant thereto like that of obtaining report steps taken in pursuant thereto like that of obtaining report does not carry prosecution case any more further. In view of does not carry prosecution case any more further. In view of this fact, I am of the view that finding recorded by the learned this fact, I am of the view that finding recorded by the learned Appellate Court does not require any interference. Appellate Court does not require any interference.

Besides, after perusing the record, it also appears Besides, after perusing the record, it also appears that the trial Court while framing the charge had referred to that the trial Court while framing the charge had referred to collection of samples on 21.12.1993 and on 5.1.1994. In other collection of samples on 21.12.1993 and on 5.1.1994.

* 8/9 * APEAL-1237-2002.doc words, factum of collection of samples by Mr. Fulmali on words, factum of collection of samples by Mr. Fulmali on 17.2.1994 has not been referred to in the charge . In view of 17.2.1994 has not been referred to in the charge . In view of this admitted fact, the learned Appellate Court has correctly this admitted fact, the learned Appellate Court has correctly held that the charge itself was defective. More so, it is also held that the charge itself was defective.

More so, it is also brought to the notice of this Court that while authorizing to brought to the notice of this Court that while authorizing to file complaint against the accused, as per the resolution, file complaint against the accused, as per the resolution, company and its officers were to prosecution in respect of company and its officers were to prosecution in respect of violation of provisions of Sections 24 and 25 of the Said Act. In violation of provisions of Sections 24 and 25 of the Said Act. In other words, there was no authorisation to prosecute the other words, there was no authorisation to prosecute the company under Section 24 of the said Act. However, company under Section 24 of the said Act. However, complaint, was also filed under Section 24 of the said Act.

On complaint, was also filed under Section 24 of the said Act. On this count also, finding recorded by the Appellate Court that this count also, finding recorded by the Appellate Court that the complainant had no authority to prosecute the company the complainant had no authority to prosecute the company under Section 24 in absence of authorisation strikes at the under Section 24 in absence of authorisation strikes at the root of the prosecution case, also deserves no interference. root of the prosecution case, also deserves no interference.

It is settled position of law that an order of It is settled position of law that an order of acquittal has to be interfered only when there are compelling acquittal has to be interfered only when there are compelling and substantial reasons for doing so and if the order is clearly and substantial reasons for doing so and if the order is clearly unreasonable. In the case in hand, in my view, the prosecution unreasonable.

* 9/9 * APEAL-1237-2002.doc effluent of the factory. In fact, the prosecution witness had effluent of the factory. In fact, the prosecution witness had admitted that the effluent treatment plant of the accused is admitted that the effluent treatment plant of the accused is connected by pipe to the effluent treatment plant of the MIDC connected by pipe to the effluent treatment plant of the MIDC at Taloja. Besides, it is an admitted fact that the Complainant at Taloja. Besides, it is an admitted fact that the Complainant was not authorised to prosecute the company under Section was not authorised to prosecute the company under Section 24 of the said Act. It is in these circumstances even though 24 of the said Act.

It is in these circumstances even though laboratory reports indicate that the effluent release by the laboratory reports indicate that the effluent release by the company were not conforming with the standards in terms of company were not conforming with the standards in terms of the consent but since collection of sample of effluent was itself the consent but since collection of sample of effluent was itself doubtful, in my view, the Appellate Court has not committed doubtful, in my view, the Appellate Court has not committed any error in acquitting the respondent no.1-company. any error in acquitting the respondent no.1-company. That for the reasons aforesaid, the above Criminal That for the reasons aforesaid, the above Criminal Appeal fails and accordingly stands dismissed Appeal fails and accordingly stands dismissed (SANDEEP K.

SHINDE, J) (SANDEEP K.