U.P.Polloution Control Board ... vs M/S Awnpore Chemicals Works Pvt. ...
2023 Latest Caselaw 23754 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:58295
 
Court No. - 15
 

 
Case :- CRIMINAL APPEAL No. - 289 of 2005
 

 
Appellant :- U.P.Polloution Control Board 3rdfloor Picup Bhawan Building
 
Respondent :- M/S Awnpore Chemicals Works Pvt. Ltd.Anwarganj Kanpur Thru.
 
Counsel for Appellant :- Sudeep Kumar,Shivji Shukla
 
Counsel for Respondent :- H.R.Verma
 

 
Hon'ble Shamim Ahmed,J.

Even in the revised call, none appears on behalf of opposite parties despite names of Shri H.R. Verma, Advocate has been printed in the cause list on their behalf.

Heard the learned counsel for U.P. Pollution Control Board-appellant and perused the material available on record.

By means of the present application under Section 378 (4) Cr.P.C., the appellant-U.P. Pollution Control Board, has sought grant of leave to appeal against the judgment and order dated 27.07.2004 passed by the Court of Special Judicial Magistrate, Pollution Lucknow in Case No. 02/1994 in Re: U.P. Pollution Control Board Vs. M/s Cawanpore Chemical Works Pvt Ltd. and others acquitting the opposite party Nos. 2 to 5 from the charges framed against them.

Brief facts of the case are that the Regional Office of U.P. Pollution Control Board (appellant herein) has filed a criminal complaint under Section 44 of Water (Prevention of Control of Pollution) Act, 1974 hereinafter referred as the "Act", stating therein that opposite party Nos. 2 to 5 have established the Industry in the name and style of opposite party No. 1 within the meaning of Section 47 of the "Act" and it has been discharging knowingly its polluted effluent into stream Ganga river through sewer which is a stream as defined in sub-sec (j) of Section 2 of the "Act" and thereby causing continuous pollution of the said stream. The consent application of opposite party No. 1 was received on 16.04.1981 and the same was rejected on 10.08.1981 as that was incomplete and another application dated 08.09.1981 was also rejected on 07.01.1982. Lastly, accused company had again applied for the grant of consent of the Board for the discharge of its trade effluent which was received on 27.11.2002. This application was found to be incomplete in many respect and the company had not given any time bound programme for revised and upto date design, construction and commissioning of complete effluent treatment plant hence the same was also rejected on 21.03.1983. It has further been stated in the complaint that the Industry was several times inspected by the Officers of the Board and every time it was found that the Industry was discharging their polluted trade effluent in to the stream Ganga River through sewer. In the complaint it has been further stated that no one can discharge its effluent without consent of the Board in any stream/well/sewer or on land and the company is discharging its effluent in sewer without obtaining the consent of the complainant Board under Section 25 (1) read with Section 26 of the Act, thus the accused company has violated the provisions of Section 25/26 of the Act and is liable to be punished under Section 44 of the Act and further submits that having been left with no other alternative but to file the present complaint with a prayer that they be summoned and be punished in accordance with law.

The court below, after having heard both the counsels for the parties and after recording statements of witnesses, P.W.1-V.P.Singh, P.W.2-Madhu Rani Sharma and P.W.3-Om Prakash under Section 244 Cr.P.C. and after having heard the learned counsel appearing on behalf of opposite parties, acquitted the opposite parties from the charges framed against them vide impugned judgment and order which is under challenged in this appeal.

Learned counsel for the appellant submits that the court below did not appreciate the evidence on record. He further submits that prosecution has successfully proved the offence against the accused persons on the basis of evidence. The judgment was passed without considering the statements of witnesses and the case set up by the prosecution. Therefore, this Hon'ble Court may grant leave to challenge the judgment and order dated 27.07.2004 and the same may be set aside by this Court.

I have gone through the impugned judgment and order and found that in the present case, the court below, after considering the entire evidence on record including the statements of witnesses and accused persons appeared before the court below, found that the entire prosecution has been lodged in a mechanical manner on the basis of some paper documents, which documents have not been proved to have been received to the accused persons. Learned court below has also given its finding that sample of trade effluent has not been proved by the witnesses, and there is no laboratory report on record in this regard to prove the case of prosecution. The evidence adduced by the witnesses were also found doubtful, therefore, the court below has rightly passed the impugned judgment and order acquitting the accused persons.

An appeal against the acquittal stands on a different footing from the appeal against the conviction. Hon'ble the Apex Court in a very recent judgment in the case of Sadhu Saran Singh Vs. State of Uttar Pradesh and Others reported in (2016) 4 SCC 357 has considered this difference and has observed in paragraph nos.20 and 21 as under:

"20. Generally, an appeal against acquittal has always been altogether on a different pedestal from that of an appeal against conviction. In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate court would interfere with the order of acquittal only when there is perversity of fact and law. However, we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage of justice which can raise by acquitting the accused who is guilty of an offence. A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent. This Court, while enunciating the principles with regard to the scope of powers of the appellate court in an appeal against acquittal, in Sambasiva V. State of Kerala 1998 SCC (Cri) 1320 has held:

"7. The principles with regard to the scope of the powers of the appellate court in an appeal against acquittal, are well settled. The powers of the appellate court in an appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two views are reasonably possible the appellate court cannot substitute its view in the place of that of the trial court. It is only when the approach of the trial in acquitting an accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions therefrom that the appellate court can interfere with the order of acquittal."

21. The Court, in several cases, has taken the consistent view that the appellate court, while dealing with an appeal against acquittal, has no absolute restriction in law to review and relook the entire evidence on which the order of acquittal is founded. If the appellate court, on scrutiny, finds that the decision of the court below is based on erroneous views and against settled position of law, then the interference of the appellate court with such an order is imperative."

In the light of the aforesaid guidelines, the impugned judgment has to be considered from the point of view whether the view taken by the court below was a probable view based on the material on record or it is an absolutely erroneous judgment devoid of merits.

A criminal trial proceeds with the presumption of innocence of the accused persons. With the acquittal of the accused persons this presumption of innocence stands fortified. So very strong and cogent reasons must exist in interfering the judgment of acquittal.

Keeping in view the aforesaid weakness of the prosecution case, as noted by the court below, I am of the view that the view taken by the court below was a probable and logical view, which is based on valid reasons. The judgment of the court below cannot be said to be illegal, illogical and improbable and not based on material on record or is based on erroneous views and is against the settled position of law. So, this Court is satisfied that there is absolutely no hope of success in this appeal and accordingly, no interference is called for.

Leave to appeal is refused.

Application for leave to appeal is rejected.

Accordingly, the appeal does not survive, and in view of above, the appeal is also dismissed.

No order as to costs.

Copy of this judgment be sent to the court below for its compliance.

Order Date :- 29.8.2023

Arvind