IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 07 t h DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR.JUSTICE RAVI V.HOSMANI
CRIMINAL APPEAL NO.100159 OF 2014
C/W
CRL.A.NOs.100152/2014, 100153/2014,
100154/2014, 100155/2014, 100156/2014,
100157/2014, 100158/2014, 100160/2014
AND CRL.A.NO.100161/2014
IN CRL.A.NO. 100159 OF 2014
BETWEEN
THE KARNATAKA STATE POLLUTION
CONTROL BOARD
R/BY ITS REGIONAL OFFICER,
(DEPUTY ENVIRONMENTAL OFFICER)
REP.BY SRI.GURUDEVPRAKASH G.M.,
AGE 40 YEARS,
CIVIL COURT ROAD, KARWAR.
...APPELLANT
(BY SRI. G I GACHCHINAMATH, ADVOCATE)
AND
M/S. D.K. ENTERPRISES
(DATTAKRUPA ENTERPRISES AND
SALGAONCAR MINING INDUSTRIES LTD.,)
PLOT NO.142 B, DEVALLI (T)
JOIDA TALUKA, DIST: UTTAR KANNADA
2
MANAGED, CONTROLLED AND R/BY
SRI RAMESH P. PANDIT, AGED ABOUT: 56 YEARS,
M/S. D K ENTERPRISES
(DATTAKRUPA ENTERPRISES AND
SALGAONCAR MINING INDUSTRIES LTD.,)
PLOT NO. 142 B, DEVALLI (T)
JOIDA TALUKA, DIST: UTTAR KANNADA
...RESPONDENT
(BY SRI DATTATRAYA J.NAIK, ADVOCATE) THIS CRIMINAL APPEAL IS FILED U/S 378(4) OF CR.P.C. SEEKING TO SET ASIDE THE IMPUGNED JUDGMENT IN C.C.NO.524/2006 DATED 29.03.2014 PASSED BY THE CIVIL JUDGE, YELLAPUR ITENARY AT DANDELI AND CONVICT THE ACCUSED FOR THE OFFENCES P/U/S 37 OF THE AIR (PREVENTION OF CONTROL OF POLLUTION) ACT.
IN CRL.A.NO.100152 OF 2014 BETWEEN THE KARNATAKA STATE POLLUTION CONTROL BOARD REPRESENTED BY ITS REGIONAL OFFICER, (DEPUTY ENVIRONMENTAL OFFICER) REP. BY SRI.GURUDEVPRAKASH G.M., AGE 40 YEARS, CIVIL COURT ROAD, KARWAR.
...APPELLANT (BY SRI. G I GACHCHINAMATH, ADVOCATE) AND M/S. D.B. ENTERPRISES PLOT NO.142-A, DEVALLI(T) JOIDA TALUK, UTTAR KANNADA DISTRICT MANAGED, CONTROLLED AND REPRESENTED BY SRI.RAJIV DODDANAVAR, AGED ABOUT 53 YEARS, M/S D.B.ENTERPRISES, 3 PLOT NO.142A, DEVALLI(T) JOIDA TALUK, UTTAR KANNADA DISTRICT ...RESPONDENT (BY SRI.SHREEVATSA S HEGDE, ADV.) THIS CRIMINAL APPEAL IS FILED U/S 378(4) OF CR.P.C. SEEKING TO SET ASIDE THE IMPUGNED JUDGMENT IN C.C.NO.528/2006 DATED 29.03.2014 PASSED BY THE CIVIL JUDGE, YELLAPUR ITENARY AT DANDELI AND CONVICT THE ACCUSED FOR THE OFFENCES P/U/S 37 OF THE AIR (PREVENTION OF CONTROL OF POLLUTION) ACT.
IN CRL.A.NO.100153 OF 2014 BETWEEN THE KARNATAKA STATE POLLUTION CONTROL BOARD R/BY ITS REGIONAL OFFICER, (DEPUTY ENVIRONMENTAL OFFICER) REP.BY SRI.GURUDEVPRAKASH G.M., AGE 40 YEARS, CIVIL COURT ROAD, KARWAR.
...APPELLANT (BY SRI. G I GACHCHINAMATH, ADVOCATE) AND M/S.GHOTGE LOGISTICS PVT. LTD., PLOT NO. 47/2, ANMOD JOIDA TALUK, DIST: UTTAR KANNADA MANAGED, CONTROLLED AND R/BY SRI GOPAL G SAWANT M/S GHOTGE LOGISTICS PVT LTD., PLOT NO. 47/2, ANMOD JOIDA TALUK, DIST: UTTAR KANNADA ...RESPONDENT (BY SRI.DATTATRAYA J NAIK, ADVOCATE) 4 THIS CRIMINAL APPEAL IS FILED U/S 378(4) OF CR.P.C. SEEKING TO SET ASIDE THE IMPUGNED JUDGMENT IN C.C.NO.526/2006 DATED 29.03.2014 PASSED BY THE CIVIL JUDGE, YELLAPUR ITENARY AT DANDELI AND CONVICT THE ACCUSED FOR THE OFFENCES P/U/S 37 OF THE AIR (PREVENTION OF CONTROL OF POLLUTION) ACT.
IN CRL.A.NO.100154 OF 2014 BETWEEN THE KARNATAKA STATE POLLUTION CONTROL BOARD R/BY ITS REGIONAL OFFICER, (DEPUTY ENVIRONMENTAL OFFICER) REP.BY SRI.GURUDEVPRAKASH G.M., AGE 40 YEARS, CIVIL COURT ROAD, KARWAR.
...APPELLANT (BY SRI. G I GACHCHINAMATH, ADVOCATE) AND M/S. PRASANNA V GHOTGE HANDLING AND TRANSPORT CONTRACTOR, IRON ORE STACK YARD, SY NO. 28, A+A2, PAYASWADI, THINNAIGHAT JOIDA TALUK, DIST: UTTAR KANNADA MANAGED, CONTROLLER AND R/BY SRI PRASANNA V BHOTGE, AGE: 51 YEARS, M/S PRASANAN V BHOTGE, IRON ORE STACK YARD, HANDLING AND TRANSPORT CONTRACTOR SY NO.28, A+A2, PAYASWADI, THINNAIGHAT, JOIDA TALUKA, DIST: UTTAR KANNADA.
RESPONDENT (BY SRI.D J NAIK, ADVOCATE) 5 THIS CRIMINAL APPEAL IS FILED U/S 378(4) OF CR.P.C. SEEKING TO SET ASIDE THE IMPUGNED JUDGMENT IN C.C.NO.531/2006 DATED 29.03.2014 PASSED BY THE CIVIL JUDGE, YELLAPUR ITENARY AT DANDELI AND CONVICT THE ACCUSED FOR THE OFFENCES P/U/S 37 OF THE AIR (PREVENTION OF CONTROL OF POLLUTION) ACT.
IN CRL.A.NO.100155 OF 2014 BETWEEN THE KARNATAKA STATE POLLUTION CONTROL BOARD R/BY ITS REGIONAL OFFICER, (DEPUTY ENVIRONMENTAL OFFICER) REP.BY SRI.GURUDEVPRAKASH G.M., AGE 40 YEARS, CIVIL COURT ROAD, KARWAR.
...APPELLANT (BY SRI. G I GACHCHINAMATH, ADVOCATE) AND M/S SHANTADURGA TRANSPORTS S N 130G AND 130 F, DEVALLI (T) JOIDA TALUKA, DIST: UTTAR KANNADA MANAGED, CONTROLLED AND R/BY SRI SHARAD K KAMAT, AGE: 44 YEARS M/S. SHANTDURGA TRANSPORTS S N 130G AND 130F DEVALLI (T) JOIDA TALUKA DIST: UTTAR KANNADA ...RESPONDENT (BY SRI. DATTATRAYA J NAIK, ADV.) THIS CRIMINAL APPEAL IS FILED U/S 378(4) OF CR.P.C. SEEKING TO SET ASIDE THE IMPUGNED JUDGMENT IN 6 C.C.NO.527/2006 DATED 29.03.2014 PASSED BY THE CIVIL JUDGE, YELLAPUR ITENARY AT DANDELI AND CONVICT THE ACCUSED FOR THE OFFENCES P/U/S 37 OF THE AIR (PREVENTION OF CONTROL OF POLLUTION) ACT.
IN CRL.A.NO. 100156 OF 2014 BETWEEN THE KARNATAKA STATE POLLUTION CONTROL BOARD R/BY ITS REGIONAL OFFICER, (DEPUTY ENVIRONMENTAL OFFICER) REP.BY SRI.GURUDEVPRAKASH G.M., AGE 40 YEARS, CIVIL COURT ROAD, KARWAR.
...APPELLANT (BY SRI. G I GACHCHINAMATH, ADVOCATE) AND N.G. TRADERS PLOT NO. 616, RAMNAGAR AKROLI JOIDA TALUKA, DIST: UTTAR KANNADA MANAGED, CONTROLLED AND R/BY SRI NITIN MAJUMDAR, AGE: 54 YEARS, M/S. N G TRADERS PLOT NO. 616, RAMNAGAR, AKROLI JOIDA TALUKA, DIST: UTTAR KANNADA ...RESPONDENT (BY SRI.SANGRAM S KULKARNI, ADVOCATE) THIS CRIMINAL APPEAL IS FILED U/S 378(4) OF CR.P.C. SEEKING TO SET ASIDE THE IMPUGNED JUDGMENT IN C.C.NO.532/2006 DATED 29.03.2014 PASSED BY THE CIVIL JUDGE, YELLAPUR ITENARY AT DANDELI AND CONVICT THE ACCUSED FOR THE OFFENCES P/U/S 37 OF THE AIR (PREVENTION OF CONTROL OF POLLUTION) ACT.
7IN CRL.A.NO.100157 OF 2014 BETWEEN THE KARNATAKA STATE POLLUTION CONTROL BOARD R/BY ITS REGIONAL OFFICER, (DEPUTY ENVIRONMENTAL OFFICER) REP.BY SRI.GURUDEVPRAKASH G.M., AGE 40 YEARS, CIVIL COURT ROAD, KARWAR.
...APPELLANT (BY SRI. G I GACHCHINAMATH, ADVOCATE) AND M/S G M TRANSPORTS PLOT NO. 604, RAMNAGAR AKROLI JOIDA TALUKA, DIST: UTTAR KANNADA MANAGED, CONTROLLED AND R/BY SRI GIRIKUMAR M NAIR AGE: 44 YEARS, M/S. G M TRANSPORTS PLOT NO. 604, RAMNAGAR, AKROLI, JOIDA TALUKA DIST: UTTAR KANNADA ...RESPONDENT (BY SRI.DATTATRAYA J NAIK, ADVOCATE) THIS CRIMINAL APPEAL IS FILED U/S 378(4) OF CR.P.C. SEEKING TO SET ASIDE THE IMPUGNED JUDGMENT IN C.C.NO.529/2006 DATED 29.03.2014 PASSED BY THE CIVIL JUDGE, YELLAPUR ITENARY AT DANDELI AND CONVICT THE ACCUSED FOR THE OFFENCES P/U/S 37 OF THE AIR (PREVENTION OF CONTROL OF POLLUTION) ACT.
IN CRL.A.NO.100158 OF 2014 BETWEEN 8 THE KARNATAKA STATE POLLUTION CONTROL BOARD R/BY ITS REGIONAL OFFICER, (DEPUTY ENVIRONMENTAL OFFICER) REP.BY SRI.GURUDEVPRAKASH G.M., AGE 40 YEARS, CIVIL COURT ROAD, KARWAR.
...APPELLANT (BY SRI. G I GACHCHINAMATH, ADVOCATE) AND M/S. SRI. SANDEEP R RANE (AMBE METALLIC LTD.,) IRON ORE STACK YARD, PLOT NO. 601/602, RAMNAGAR, AKROLI, JOIDA TALUKA DIST: UTTAR KANNADA MANAGED, CONTROLLED AND R/BY SRI SANDEEP RANE, AGE: 44 YEARS, M/S. SRI SANDEEP R RANE (AMBE METALLIC LTD.,) 601/602, RAMNAGAR, AKROLI JOIDA TALUKA, DIST: UTTAR KANNADA RESPONDENT (BY SRI.DATTATRAYA J NAIK, ADVOCATE) THIS CRIMINAL APPEAL IS FILED U/S 378(4) OF CR.P.C. SEEKING TO SET ASIDE THE IMPUGNED JUDGMENT IN C.C.NO.525/2006 DATED 29.03.2014 PASSED BY THE CIVIL JUDGE, YELLAPUR ITENARY AT DANDELI AND CONVICT THE ACCUSED FOR THE OFFENCES P/U/S 37 OF THE AIR (PREVENTION OF CONTROL OF POLLUTION) ACT.
IN CRL.A.NO.100160 OF 2014 BETWEEN THE KARNATAKA STATE POLLUTION CONTROL BOARD R/BY ITS REGIONAL OFFICER, 9 (DEPUTY ENVIRONMENTAL OFFICER) REP.BY SRI.GURUDEVPRAKASH G.M., AGE 40 YEARS, CIVIL COURT ROAD, KARWAR.
...APPELLANT (BY SRI. G I GACHCHINAMATH, ADVOCATE) AND M/S NECC ROADWAYS, PLOT NO.602, RAMNAGAR-ARKOLI, JOIDA TALUKA, UTTAR KANNADA DISTRICT MANAGED, CONTROLLED AND REPRESENTED BY SRI.NEERAJ CHOUDHARY, AGED ABOUT 40 YEARS PLOT NO.602, RAMNAGAR-AKROLI JOIDA TALUKA, UTTAR KANNADA DISTRICT.
RESPONDENT (BY SRI. D J NAIK, ADVOCATE) THIS CRIMINAL APPEAL IS FILED U/S 378(4) OF CR.P.C. SEEKING TO SET ASIDE THE IMPUGNED JUDGMENT IN C.C.NO.530/2006 DATED 29.03.2014 PASSED BY THE CIVIL JUDGE, YELLAPUR ITENARY AT DANDELI AND CONVICT THE ACCUSED FOR THE OFFENCES P/U/S 37 OF THE AIR (PREVENTION OF CONTROL OF POLLUTION) ACT.
IN CRL.A.NO.100161 OF 2014 BETWEEN THE KARNATAKA STATE POLLUTION CONTROL BOARD R/BY ITS REGIONAL OFFICER, (DEPUTY ENVIRONMENTAL OFFICER) REP.BY SRI.GURUDEVPRAKASH G.M., AGE 40 YEARS, CIVIL COURT ROAD, KARWAR.
...APPELLANT 10 (BY SRI. G I GACHCHINAMATH, ADVOCATE) AND M/S NECC ROADWAYS, PLOT NO.602, RAMNAGAR-ARKOLI, JOIDA TALUKA, UTTAR KANNADA DISTRICT MANAGED, CONTROLLED AND REPRESENTED BY SRI.NEERAJ CHOUDHARY, AGED ABOUT 40 YEARS PLOT NO.602, RAMNAGAR-AKROLI JOIDA TALUKA, UTTAR KANNADA DISTRICT.
RESPONDENT (BY SRI. D J NAIK, ADVOCATE) THIS CRIMINAL APPEAL IS FILED U/S 378(4) OF CR.P.C. SEEKING TO SET ASIDE THE IMPUGNED JUDGMENT IN C.C.NO.530/2006 DATED 29.03.2014 PASSED BY THE CIVIL JUDGE, YELLAPUR ITENARY AT DANDELI AND CONVICT THE ACCUSED FOR THE OFFENCES P/U/S 37 OF THE AIR (PREVENTION OF CONTROL OF POLLUTION) ACT.
THESE APPEALS BEING HEARD ON FINAL HEARING AND RESERVED FOR JUDGMENT ON 26.11.2020, THIS DAY THE COURT, DELIVERED THE FOLLOWING:
: COMMON JUDGMENT :
Since all these appeals involve similar facts, common provisions and the same complainant and are decided by the trial Court on common question of law, they were connected and heard together. Hence, they are 11 taken up for common disposal. For the sake of convenience, the facts pertaining to Criminal Appeal No.100160/2014 only are referred hereinafter.
2. A private complaint under Section 200 of the Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.) came to be filed by the Karnataka State Pollution Control Board against the accused on 29.06.2006 stating that the complainant is a statutory body constituted under Section 5 of Air (Prevention and Control of Pollution) Act, 1981 (hereinafter referred to as 'Act') to exercise the powers and perform the functions assigned to it under the Act in the State of Karnataka. It was stated that in exercise of the powers under Section 19(1) of the Act notifying the entire state as 'air pollution control area', vide notification dated 30.05.1988 bearing No.DEEE5ECO87, Bangalore.
3. It was further stated that the accused was stacking iron ore in its land bearing Sy.No.4 at Devalli(T), Tinnaighat, Joida taluk, Uttara Kannada 12 district. It was stated that stacking of iron ore without previous consent of the complainant board was violative of Sections 21 and 22 of the Act, which is a punishable offence under Section 37 of the Act. It was also stated that the activity of the accused fell within the definition of Industrial Plant defined under Section 2(k) of the Act. It was further stated that the board inspected the iron ore stock yard of the accused on 05.07.2005, when it was observed that accused did not provide any pollution control measures and was operating without obtaining consent under Section 21. It was further stated that at a meeting held on 24.12.2005 under chairmanship of Deputy Commissioner, Uttara Kannada district, in the presence of officials of the Board and directions were issued to representatives of the iron ore stock yards, transporters and exporters of iron ore regarding pollution control measures to be adopted by them. They were granted time upto 10.01.2006 for compliance. On 10.01.2006 a joint inspection of stock yards was conducted by Board officials along with officials of 13 revenue department and Department of Mines and Geology and mahazars were drawn. Several violations were noted. Thereafter one more inspection was conducted on 05.04.2006, wherein it was noticed that accused had continued illegal operations without complying with the directions issued under provisions of the Act.
4. Subsequently at the meeting dated 04.05.2006 held by Deputy Commissioner, Uttara Kannada district, it was decided that stacking and transportation of iron ore should be avoided during monsoon, in order to protect nearby water bodies from pollution. The time limit for implementation of pollution control measures was extended upto 10.06.2006. Thereafter one more inspection of the iron ore stock yard was conducted on 24.06.2006 and mahazars were drawn. It was noticed that there was continued violation of Sections 21, 22 and Section 37 of the Act. Therefore, the complainant sought 14 for convicting the accused for the offences committed by them under Sections 21, 22 and 37 of the Act.
5. Upon taking cognizance, after recording sworn statement of the complainant, summons were issued to accused. The accused entered appearance, denied the charges and sought trial. In support of complainant's case, four witnesses were examined as PW1 to PW4 and Exhibits P1 to P9 were marked. Thereafter the incriminating material was explained to the accused, who denied the same. No explanation was offered. The same was recorded under Section 313 of Cr.P.C. The accused did not lead any defence evidence.
6. Based on the above, trial Court framed following points for its consideration:
1. Whether the complainant has proved beyond all reasonable doubt that after 10.06.2006, the accused has operated the iron ore stack yard in the land bearing S.No.4A1AA2 situated at Devali (T), Tinnaighat, Joida Taluk, Uttar Kannada district without the previous consent of the complainant board and thereby violated Section 21 of the Air (Prevention 15 and Control of Pollution) Act, 1981 punishable under Section 37 of the said Act?
2. Whether the complainant has further proved beyond all reasonable doubt that on the aforesaid period and place iron ore stack yard discharged the emission of air pollutant to the atmosphere in excess of the standards laid down by the State board and thereby violated Section 22 of the Air (Prevention and Control of Pollution) Act, 1981 punishable under Section 37 of the said Act?
3. What order?
7. After answering Point Nos.1 and 2 in the negative, the Trial Court proceeded to acquit the accused of all the offences alleged against them. Challenging the acquittal, the complainant-Pollution Control Board is in appeal.
8. Learned Counsel Sri Gurudev I.Gachchinamath for appellant submitted that, complainant-Board, is a statutory authority constituted under Section 4 of the Air (Prevention and Control of Pollution) Act, 1981 (hereinafter referred to as 'Act' for short). 16
9. The Board is empowered to exercise powers and perform functions under provisions contained in Chapter-III of Act. And that State Government notified entire geographical area of State as 'control area' by issuing a notification under Section 19 of the Act.
10. Learned counsel submitted that, an industrial plant is defined under Section 2(k) which means any place used for any industrial or trade purposes and emitting any air pollutant into atmosphere. Section 17(e) empowers Board to carryout inspection of any control equipment, industrial plant or manufacturing process and to give directions for prevention, control or abatement of air pollution. Section 21(1) prohibits establishment or operation of any industrial plant in control area without previous consent of the State Board.
11. Section 22 prohibits any person operating any industrial plant in a control area from discharging or emission of any air pollutant in excess of standards laid down by the Board.
17
12. Under Section 31A, State Board is empowered to issue directions in exercise of its powers and performance of functions to any person, officer or authority and they shall be bound to comply with such directions. Failure to comply with provision of Section 21 or Section 22 or with a direction issued under Section 31A are punishable offences under Section 37 of the Act.
13. It was submitted that in the case on hand, accused is engaged in handling and stacking of iron ore at Sy.No.4A1, A1, A2 of Devalli (T), Tinnaighat, Joida taluk, Uttara Kannada District. The accused was carrying on said activity without obtaining consent from the Board. After inspection of iron ore stack-yard on 05.07.2005, it was noticed that accused had not provided any pollution control measures and was operating without obtaining consent. As the violation was wide spread, a meeting was held on 24.12.2005 under the Chairmanship of Deputy Commissioner, Uttara Kannada District in the presence of Board officials and 18 representatives of the iron ore stack-yards, transporters and exporters, regarding pollution control measures to be adopted by them. They were granted time upto 10.01.2006 for compliance with directions. But during second inspection conducted on 05.04.2006 continued violation was noticed. In subsequent meeting held on 04.05.2006, Deputy Commissioner, Uttara Kannada District issued directions that stacking and transportation of iron ore should be avoided during monsoon, in order to protect nearby water bodies and time limit for implementation of control measures was extended upto 10.06.2006. But, during third inspection on 24.06.2006, it was observed that no measures were taken by accused. Hence, accused committed offences under the Act. The same was established by complainant-appellant by examining four witnesses and marking letter of Deputy Commissioner, Karwar as Ex.P1; meetings register containing signatures of representatives of accused as Ex.P2; spot mahazars as Ex.P3 and Ex.P7; Office notice as Ex.P4, copy of gazette notification as 19 Ex.P9 etc. which corroborated oral evidences of the witnesses. However, Trial Court on hyper technical reasons acquitted the accused. The reasons assigned by Trial Court being perverse were required to be set aside and accused liable to be convicted for offences under the Act.
14. Learned counsel further submitted that with regard to very same proceedings, accused had earlier approached this Court seeking for quashing of proceedings under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C." for short). In its reported decision in the case of Nitin Mujumdar Vs State of Karnataka and Others, 2007 (4) KLJ 569, this Court considered the contention whether iron-ore stack-yards were included in the definition of 'Industrial Plant' defined in Section 2(k) of the Act. Dismissing the petitions this Court held iron-ore stack-yards which emanate dust particles into air, are included in definition of 'Industrial Plant' under the Act. 20 The other contention that complaint filed by Regional Officer, Karwar, was not in accordance with Section 43(1)(a) of the Act was rejected. But the issue regarding commission of offences was kept open for trial. It was submitted that in view of rejection of contention that iron-ore stack-yards are not industrial plants, same contention cannot be urged again.
15. On the other hand learned Counsel Sri D.J.Naik submitted that, activity of accused was not mining, but only stacking of iron-ore mined elsewhere upto the time for transportation. During stacking there was no processing and therefore, stacking of iron-ore was not an industrial activity, inviting application of provisions of Act. Learned counsel further submitted that, Section 22, the violation of which is alleged against accused applies only if activity carried on by accused involves pollution, discharge or emission of pollutants in excess of standards fixed by Board under Section 17. As the Board failed to establish any tests being conducted at the 21 stacking area, by producing lab report etc., therefore there was no proper basis for filing complaint against accused and Trial Court on proper appreciation of this fact had rightly acquitted accused. It was further submitted that, from records produced by complainant- Board and admitted by witnesses, Board had not finalized guidelines/directions stipulating pollution control measures to be adopted by iron-ore stackers and transporters, upto end of year 2006. Such being the case, Board had failed to substantiate charges either under Section 22 or under Section 31A of the Act. It was further submitted that, in view of acquittal by Trial Court, innocence of accused was fortified and in absence of establishing its case beyond all reasonable doubt, acquittal of accused cannot be interfered with by this Court.
16. Learned counsel Sri Sreevatsa Hegde appearing for accused in Criminal Appeal No.100152/2014 adopted the above submissions. 22
17. Learned counsel Sri Sangram Kulkarni appearing for respondent/accused in Criminal Appeal No.100156/2014 submitted that, proceedings in question being penal in nature, standard of proof applicable is proof beyond reasonable doubt. The entire prosecution case was riddled with many omissions and Trial Court was therefore fully justified in acquitting the accused. Learned counsel further submitted that in view of acquittal of accused by trial Court, the presumption of innocence of the accused was fortified and unless a case of proof beyond all reasonable doubt or perversity in impugned judgment was established, acquittal did not warrant interference.
18. From the above, it emerges that the accused are not disputing that they are carrying on activity of iron-ore stacking or transportation. What is in dispute is, whether the activity attracts application of provisions of the Act; If so, whether accused violated any provisions of 23 the Act and thereby committed offences under Section 37 of Act?
19. In order to establish the charges, complainant examined Assistant Environment Officer as P.W.1. P.W.1 reiterated entire complaint averments and marked Exs.P1 to P9. During cross-examination, P.W.1 admitted that in the meeting conducted on 24.12.2005 they have not obtained any documents to show attendance of accused or his representative. He admits that copy of notice of meeting sent was not produced. He further admits that even any document to show service of notice in person on the accused was also not produced. It is further elicited from P.W.1 that on 10.01.2006, total of 10 spots were visited and panchanamas drawn. On 24.06.2006 also 10 panchanamas were drawn pertaining to all accused. It is elicited that at the time of drawing of panchanama, boundaries of stack-yards are not mentioned, original documents of spot were not produced to show ownership. It is further elicited that at the time 24 of conducting inspection and panchanama, activity of loading and un-loading was in progress and there were several other persons present at the spot but their details have not been recorded in the panchanama. It is further admitted by the witness that there was no impediment for securing and producing copy of village map from revenue officers. The witness further admitted that the spot was about 100 meters from Devalli(T) village and yet no villager was called as pancha witness. The witness further admits that categorization of iron-ore stacking into red, orange and green categories was done subsequent to initiation of these prosecutions. The witness further admits that in order to establish pollution, samples are required to be sent to lab for testing and report obtained from the lab situated in Dharwad. The witness admitted that no sample collection was undertaken and there is no mention about it in complaint. The witness also admits that there are no stipulations in the Act regarding stacking of iron-ore, its loading and un-loading in a safe manner and that Board 25 forwarded guidelines for approval during last month of 2006. The witness further admits that no documents were produced to establish that it was the accused who had stacked iron-ore at the spot and that no enquiry conducted prior to registration of complaint by calling the accused or serving any notice on him in person.
20. P.W.2 is the geologist who also reiterated complaint averments and supported evidence of P.W.1. However, in his cross-examination, he admits that he does not remember the scribe of panchanama and that his signatures were obtained to panchanama as he was member of task force. He admits that at the time of drawing panchanama, activity of loading and un-loading of iron-ore was in vogue and there were several other persons available at the spot but their details were not recorded and no documents were obtained to show presence of accused or representatives while drawing panchanama.
26
21. It is specifically elicited from the witness that a meeting of task force was held at 4.00 p.m. on 24.06.2006 at Karwar. The witness further admits that no samples were drawn and none were sent for testing to laboratories while drawing panchanama.
22. P.W.3 is Environment Officer. In his examination-in-chief, he says that during meeting held on 24.12.2005, owners of iron-ore stack-yards were issued directions to control/abate pollution from iron ore stacking. He further stated that owners were given time upto 10.01.2006 to implement pollution control measures. That on 10.01.2006 they had visited all places of iron-ore stacking in Ramanagar and found that none of them had obtained prior consent of the Board. In his cross-examination, he admits that there were no records to show presence of accused or their representatives at the meeting held on 24.12.2005, and service of notice of meeting upon them.
27
23. PW3 also admitted presence of other people at the time of drawing of spot panchanama, and also admitted that no samples were collected and test reports obtained.
24. P.W.4 is Revenue Inspector. In his examination-in-chief, P.W.4 states from 11.00 a.m. onwards on 24.06.2006 he along with P.Ws.1, 2 and 3 visited 11 iron-ore stack-yards and drew panchanamas. It was found that stacking of iron-ore was without obtaining prior consent from the Board. P.W.4 admits in his cross-examination that P.Ws.1, 2 and 3 met him at his office at 11.00 a.m. on 24.06.2006. Even P.W.4 admitted presence of other persons while drawing panchanama and that no samples were drawn and sent to lab for analysis.
25. As per Ex.P9, notification dated 30.05.1988, entire area of Karnataka was declared as 'Air Pollution Control Area', provisions of Act would apply to entire geographical area of Karnataka. The accused have 28 admitted carrying on activity of iron ore stacking and transportation. It is not their case that their activity was not within geographical area of Karnataka. Therefore, it is established that they were carrying on activity of iron- ore stacking within 'Air Pollution Control Area'.
26. Admittedly, complainant has not produced any laboratory report to establish pollution. All the witnesses admitted no samples were collected from the spot, while drawing panchanama. Therefore, it has to be held that complainant failed to establish that activity carried on by accused resulted in pollution. A reading of Section 2(k), Section 17(e), Section 21, Section 22 and Section 31A is very much necessary.
"2(k) "industrial plant" means any plant used for any industrial or trade purposes and emitting any air pollutant into the atmosphere;
17. Functions of State Boards.--
(e) to inspect, at all reasonable times, any control equipment, industrial plant or manufacturing process and to give, by order, such directions to such persons as it may consider necessary to take steps for the prevention, control, or abatement of air pollution;29
Section 21 in THE AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981
21. Restrictions on use of certain industrial plants.-- 15 [(1) Subject to the provisions of this section, no person shall, without the previous consent of the State Board, establish or operate any industrial plant in an air pollution control area: Provided that a person operating any industrial plant in any air pollution control area immediately before the commencement of section 9 of the Air (Prevention and Control of Pollution) Amendment Act, 1987 (47 of 1987), for which no consent was necessary prior to such commencement, may continue to do so for a period of three months from such commencement or, if he has made an application for such consent within the said period of three months, till the disposal of such application.] (2) An application for consent of the State Board under sub-section (1) shall be accompanied by such fees as may be prescribed and shall be made in the prescribed form and shall contain the particulars of the industrial plant and such other particulars as may be prescribed: Provided that where any person, immediately before the declaration of any area as an air pollution control area, operates in such area any industrial 16 plant, [***] such person shall make the application under this sub-section within such period (being not less than three months from the date of such declaration) as may be prescribed and where such 30 person makes such application, he shall be deemed to be operating such industrial plant with the consent of the State Board until the consent applied for has been refused.
(3) The State Board may make such inquiry as it may deem fit in respect of the application for consent referred to in sub-section (1) and in making any such inquiry, shall follow such procedure as may be prescribed.
(4) Within a period of four months after the receipt of the application for consent referred to in sub-section (1), the State Board shall, by order in writing, 17 [and for reasons to be recorded in the order, grant the consent applied for subject to such conditions and for such period as may be specified in the order, or refuse such consent:] 18 [Provided that it shall be open to the State Board to cancel such consent before the expiry of the period for which it is granted or refuse further consent after such expiry if the conditions subject to which such consent has been granted are not fulfilled: Provided further that before cancelling a consent or refusing a further consent under the first proviso, a reasonable opportunity of being heard shall be given to the person concerned.] (5) Every person to whom consent has been granted by the State Board under sub-section (4), shall comply with the following conditions, namely:-- 31
(i) the control equipment of such specifications as the State Board may approve in this behalf shall be installed and operated in the premises where the industry is carried on or proposed to be carried on;
(ii) the existing control equipment, if any, shall be altered or replaced in accordance with the directions of the State Board;
(iii) the control equipment referred to in clause (i) or clause (ii) shall be kept at all times in good running condition;
(iv) chimney, wherever necessary, of such specifications as the State Board may approve in this behalf shall be erected or re-erected in such premises;
(v) such other conditions as the State Board may specify in this behalf; and
(vi) the conditions referred to in clauses (i), (ii) and
(iv) shall be complied with within such period as the State Board may specify in this behalf: Provided that in the case of a person operating any industrial plant 19 [***] in an air pollution control area immediately before the date of declaration of such area as an air pollution control area, the period so specified shall not be less than six months: Provided further that--
(a) after the installation of any control equipment in accordance with the specifications under clause (i), or
(b) after the alteration or replacement of any control equipment in accordance with the directions of the State Board under clause (ii), or
(c) after the erection or re-erection of any chimney under clause (iv), 32 no control equipment or chimney shall be altered or replaced or, as the case may be, erected or re-erected except with the previous approval of the State Board. (6) If due to any technological improvement or otherwise the State Board is of opinion that all or any of the conditions referred in to sub-section (5) require or requires variation (including the change of any control equipment, either in whole or in part), the State Board shall, after giving the person to whom consent has been granted an opportunity of being heard, vary all or any of such conditions and thereupon such person shall be bound to comply with the conditions as so varied.
(7) Where a person to whom consent has been granted by the State Board under sub-section (4) transfers his interest in the industry to any other person, such consent shall be deemed to have been granted to such other person and he shall be bound to comply with all the conditions subject to which it was granted as if the consent was granted to him originally.
Section 22 in THE AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981 22 Persons carrying on industry, etc., not to allow emission of air pollutants in excess of the standards laid down by State Board. --No person 1 [***] operating any industrial plant, in any air pollution control area shall discharge or cause or permit to be discharged the emission of any air pollutant in excess of the standards laid down by the State Board under clause (g) of sub-section (1) of section 17. 33 Section 31A in THE AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981 23 [31A. Power to give directions.--Notwithstanding anything contained in any other law, but subject to the provisions of this Act and to any directions that the Central Government may give in this behalf, a Board may, in the exercise of its powers and performance of its functions under this Act, issue any directions in writing to any person, officer or authority, and such person, officer or authority shall be bound to comply with such directions. Explanation.--For the avoidance of doubts, it is hereby declared that the power to issue directions under this section includes the power to direct--
(a) the closure, prohibition or regulation of any industry, operation or process; or
(b) the stoppage or regulation of supply of electricity, water or any other service.] Section 37 in THE AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981 29 [37. Failure to comply with the provisions of section 21 or section 22 or with the directions issued under section 31A.--
(1) Whoever fails to comply with the provisions of section 21 or section 22 or directions issued under section 31A, shall, in respect of each such failure, be punishable with imprisonment for a term which shall not be less than one year and six months but which may extend to six years and with fine, and in case the failure continues, with an additional fine which may extend to five thousand rupees for every day during which such failure continues after the conviction for the first such failure.
(2) If the failure referred to in sub-section (1) continues beyond a period of one year after the date 34 of conviction, the offender shall be punishable with imprisonment for a term which shall not be less than two years but which may extend to seven years and with fine.]"
27. In order to establish violation of the above provisions, the complainant is required to establish that the activity of the accused has resulted in pollution. The definition of 'Industrial Plant' though couched in wide words is to be read in conjunction with the second portion of the definition 'emitting any air pollutant into the atmosphere'. Even the power of the Board to inspect any industrial plant etc. under Section 17(e) is stipulated to be for the purposes of issuing directions considered necessary to take steps for prevention, control, or abatement of air pollution.
28. Though Section 21 imposes restriction on establishment or operation of any industrial plant in an air pollution control area without previous consent of the State Board, by virtue of the second portion of the definition of industrial plant in Section 2(k) of the Act, 35 the requirement of establishing polluting activity by such industrial plant is mandatory in order to invite application of Section 21 to such industrial plant. Without establishing causing of pollution by any industrial plant, it cannot be established that such industry to have violated Section 21 of the Act. Further, a bare reading of Section 22 reveals that the provisions should be attracted only after stipulation of standards by the Board regarding discharge of any emission by an industrial plant. In this case, the complainant has not produced any such standards being laid down by the Board. In any case, there are no samples collected nor lab reports produced to establish violation of the standards. Therefore, it has to be held that the facts of this case do not attract the provisions of Section 22 of the Act.
29. However, it is the contention of the learned counsel for the complainant that the directions issued under Section 31A are preemptive in nature and even without establishing causing of pollution by the accused, 36 non-compliance of the directions would constitute offence under Section 37 of the Act.
30. But P.W.1 to P.W.4 admitted that there are no records to indicate service of notice of meeting upon accused or their representatives. There is specific admission by P.W.1 that guidelines for controlling pollution with regard to iron-ore stacking were not finalized upto end of year 2006 (as guidelines were pending approval). But complaint averments are with regard to alleged violations for the period prior to issuance of guidelines (the meetings and spot mahazars were held on 08.07.2005, 24.12.2005, 10.01.2006 and 24.06.2006). Therefore it cannot be held that complainant established issuance of directions under Section 31A to accused. None of the exhibits marked by complainant contain any directions issued to accused or their communication to accused. Merely on basis of spot mahazars, it cannot be established that Board had issued 37 directions to accused and there was non-compliance of such directions by them.
31. The trial Court on examination of the entire evidence and contents of spot mahazars held that complainant failed to establish commission of offences by accused. The conclusions drawn are with reference to evidence on record and the same are neither perverse nor suffer from any material irregularity.
32. In the result, there is no merit in the appeal. Accordingly, Criminal Appeal No.100160/2014 is rejected.
33. Since the other appeals are also on similar facts and grounds, the findings given in the above appeal would apply to the said appeals also and accordingly they are also dismissed.
Sd/-
JUDGE CLK