M/S.U.P.Pollution Control Board ... vs M/S.P.V.K.Disttillry Nandganj ...
2023 Latest Caselaw 6972 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserve Judgement
 
	Reserved On : 06.09.2022
 
Delivered on : 03.03.2023 
 

 
Case :- CRIMINAL APPEAL No. - 770 of 2001
 

 
Appellant :- M/S.U.P.Pollution Control Board Through Its Member Secy
 
Respondent :- M/S.P.V.K.Disttillry Nandganj Gazipur Through Its Managing
 
Counsel for Appellant :- Kamlesh Singh,Ashok Kumar Verma
 
Counsel for Respondent :- G.A.,Rakesh Kumar Singh
 

 
Hon'ble Narendra Kumar Johari,J.

1. Heard learned counsel for the appellant on the application for leave to appeal (Crl. Misc. Application No.4573 of 2001).

2. For the facts and reasons, as stated in the accompanying application/affidavit for leave to appeal as well as in the memo of appeal, the application for leave to appeal is allowed.

3. This Criminal Appeal under Section 378 Cr.P.C. has been filed by the appellants against the judgment and order dated 03.03.2001, passed by learned Judicial Magistrate (Pollution), Lucknow in Case No. 52 of 1993 (U.P. Pollution Control Board, Lucknow Vs. M/s P.V.K. Distillery, Nandganj, Ghazipur through its Managing Director Sri P.K. Tewari). By the impugned judgment and order, learned trial court has discharged the accused persons Maya Pati Tripathi, Prabodh Kumar Tiwari, Ambrish Pati Tripathi, Vijay Kumar Tewari, G.N. Tiwari and P.K. Srivastava under Section 245 Cr.P.C. for the offence under Section 41 (2) of The Water (Prevention and Control of Pollution) Act, 1974.

4. The facts of the case, in short, are that U.P. Pollution Control Board had filed a complaint against opposite parties under Section 41 (2) of the Water (Prevention and Control of Pollution) Act, 1974 (in short "the Act of 1974"). It has been stated in the complaint that opposite party No.1 M/s P.V.K. Distillery, Nandganj, Ghazipur has been discharging its polluted trade effluent in the holly river Ganga through Nala and thereby causing continuous pollution on the said stream. The complainant filed an application under Section 33 (1) of the Act, 1974 before the Chief Judicial Magistrate, Ghazipur to restrain the opposite party No.1 from discharging the noxious and polluted material in the river. The Court, after considering the facts and circumstances of the case had passed the order dated 11.04.1986, its operative portion is as under :-

"विपक्षी पी०वी०के० डिस्टलरी नंदगंज को आदेशित किया जाता है कि पर्याप्त लैगून्स की व्यवस्था करें तथा दूषित उत्प्रवाह उसमें इकट्ठा करें और दूषित उत्प्रवाह गंगा नदी के जल तक न पहुंचने दे विपक्षी डिस्लरी को यह भी आदेशित किया जाता है कि वह अपने लाभ का 10 प्रतिशत प्रत्येक छमाही अलग खोले गये बैंक खाते में जमा करें जिससे भविष्य में शुद्धिकरण संयंत्र लगाया जा सके।"

5. In order to check as to whether the industry is complying the order dated 11.06.1986 or not, the site of opposite party No.1 was inspected by the officer of complainant on 04.01.1988. During the investigation, it was found that the industry is discharging its polluted trade effluent into the river Ganga through Nala, without providing adequate lagoons for collecting the effluent into it. The industry has not furnished any information about the deposit. Hence, it can be concluded that 10% of the profit also was not being deposited by the opposite party No.1. On 04.01.1988, the sample of effluent water was also collected by the complainant. According to the analysis report of the material, parameter of the trade effluent of opposite party No.1 are beyond the standard laid on by the complainant/Pollution Control Board and do not conform the standard prescribed. Hence, it was clear that the opposite parties had violated continuously the order of court, which was passed under Section 33 (2) of the Act, 1974, therefore, they are liable for punishment under Section 41(2) of the Act of 1974. So far as the opposite parties Nos. 2 to 9 are concerned, it has been mentioned in the complaint that they were Incharge of the business of the Company and are responsible for its day to day business and were duty bound to comply the order of the Court.

6. It is pertinent to mention here that in complaint, it has been shown that opposite party No.1 is the Distillery/Company and the opposite parties Nos. 2 to 6 are shown as Directors of the Company, opposite parties No.7, 8 and 9 are the Technical Director, General Manager and Production Manager of the Company.

7. During the proceedings before the trial court, the opposite party Nos. 4, 7 and 8 did not appear despite all the attempt to summon them, therefore, vide order dated 12.07.1999, learned trial court had separated the record of the aforesaid accused persons. Rest of the opposite parties contested the case before the trial court.

8. Learned trial court, after considering the facts, circumstances and evidence on record, discharged the opposite parties Nos. 2, 3, 5, 6, 8 and 9 from the offence under Section 41 (2) of the Act of 1974 vide order dated 03.03.2001, which has been assailed by the Pollution Board/Complainant in the present criminal appeal.

9. Learned counsel for the appellant argued that it is not disputed that the company failed to comply the order of the court dated 11.08.1988, passed by Chief Judicial Magistrate, Ghazipur in Misc. Case No. 8 of 1986. Since the company is juristic person and its functions are being performed by its directors and management, hence the directors and managers of the company who have been arrayed as opposite parties including opposite party Nos. 2, 3, 5,6, 8 and 9 are also liable for punishment. Learned trial court failed to appreciate the aforesaid legal provision and discharged the opposite parties 2, 3, 5, 6, 8 and 9 under Section 245 Cr.P.C. Hence, the order under appeal is liable to be set aside and appeal deserves to be allowed with cost.

10. Per contra, for respondents, learned Amicus Curiae has argued that undoubtedly the provisions of Section 47 of the Act of 1947 makes provision to cast liability on the directors and managers of the company where it has been proved by the prosecution that offene has been committed by the company. According to Section 47 (1) of the Act of 1974, the initial burden is on prosecution that the opposite parties/respondents were the persons who at the time of commission of offence were incharge of, and were responsible to the company for the conduct of the business of the company. If the complainant succeeds to prove that the opposite parties/respondents were responsible to perform the function of the company and comply the order of the court, then the burden of proof will shift on the opposite parties/respondents to prove the defence that the offence was committed without his knowledge or that he exercised all the due diligence to prevent the commission of offence. Again the proviso of Section 47 (2) imposes the burden of proof on complainant to prove that the offence has been committed with the consent or connivance of or is attributable to any neglect on the part of opposite parties/respondents. In the case, neither by oral evidence, nor by documentary evidence, the complainant succeeded to discharge his initial burden. The documentary evidence which had been submitted by complainant were inadmissible in evidence, in accordance with law. The company has already confessed the offence through its Chief Executive/Director and vide order dated 28.02.1997 the court has punished the company by way of fine, which has been deposited promptly by the company. The order dated 28.02.1997 concludes that the affairs of the company was being managed by its Chief Executive/Director Shri M.K. Pilani. The aforesaid order of the court has not been challenged by the complainant in higher court and, thus, attained its finality. The matter should have been ended with the deposition of the fine but knowing the fact that complainant could not prove the role of opposite parties in the affairs of the company, the present appeal has been filed by the appellant which is liable to be dismissed with cost.

11. Learned trial court while discharging the opposite parties Nos. 2, 3, 5, 6, 8 and 9 has observed that complainant had produced only two witnesses to prove the facts. The witnesses in their oral evidence could not mention that how the opposite party Nos. 2, 3, 5 and 6 were responsible for the non compliance of the order of the Court dated 11.06.1986, therefore, in absence of proof of any role, no charge can be framed against the aforesaid opposite parties. All the documentary evidence, which were submitted by the Board as evidence are in the form of photostat copies, which, according to law, being inadmissible cannot be taken into consideration. The complainant/Pollution Control Board could not establish that opposite party No.8, Shri G.N. Tiwari was responsible for which offence. No documentary evidence has been filed by the complainant in this regard. So far as the opposite party No.7 is concerned, he was the employee in the Company. It was his duty to follow the instructions of management and Directors of the Company, it was not the duty and responsibility of opposite party No.9 to establish E.T.P. In the proceeding under Section 33 (2) of the Act of 1974, learned court concerned vide order dated 11.06.1986 had given a direction to the opposite party No.1 only. The Court had not ordered or passed any direction to opposite party Nos. 2, 3, 5, 6, 8 and 9. Opposite party No.1 has confessed its offence on 28.02.1997 and paid the fine imposed by the Court under Section 41 (2) of the Act of 1974. Therefore, if the order dated 11.06.1986 passed by the Court had not been complied with, by opposite party No.1 then in that case the other opposite parties are not liable for any disobedience of order of court. In absence of any offence, no case is made out against the aforesaid opposite parties. Accordingly, the opposite parties are liable to be discharged.

12. Learned counsel for the appellant/Pollution Control Board has submitted that the provisions of Section 47 of the Act, 1974 imposes liability on concern person, who, at the time the offence was committed was in charge of, and was responsible for the conduct of the business of the Company. The provisions of Section 47 of the Act, 1974 reads as under :-

47. Offences by companies.- (1) Where an offence under this Act has been committed by a company, every person who at the time the offence was committed was in charge of, and was responsible to the company for the conduct of, the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly :

Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation. - For the purposes of this section, -

(a) "company" means any body corporate, and includes a firm or other association of individuals; and

(b) "director" in relation to a firm means a partner in the firm."

13. In present case, the complainant's witness PW 1 R.C. Chaudhary in his oral evidence has stated that he had inspected the premises of opposite party No.1 on 04.01.1988 and found that polluted trade effluent were being discharged by the company in the river Ganga. In his cross-examination, he has stated that he cannot say that whether accused/opposite party Nos.2, 3, 5 and 6 were related with the industry (opposite party No.1) or not. The witness further mentioned in his evidence that he had gone alone to inspect the premises of opposite party No.1 on 04.01.1988 and found that effluent were flowing from the Nala. He also stated that he had not met P.K. Srivastava prior to date 04.01.1988 when inspection was carried by him. The other witness PW 2 is the Law Officer of the complainant/Board. He had not accompanied witness PW 1 when the premises of opposite party No.1 was inspected by him.

14. The record indicates that no memorandum of association of opposite party No.1/company has been filed by the complainant, even no paper has been filed by the complainant to show as to how the opposite parties were related with the day to day works of the company.

15. According to Section 47 (1) of the Act of 1974, the liability to comply the order of the court, has been imposed on the persons who are in charge of the company and, are responsible to the company for the conduct of the business of the company. In present case, the opposite parties No. 2, 3, 5, 6, 8 and 9 were incharge of, and were responsible to the company for conduct of, the business of the company, has not been proved by the complainant by oral or any documentary evidence. According to Section 47 (1) of the Act of 1974, the initial burden of proof was on complainant. If the complainant succeeds to prove and discharges its initial burden of proof, only then the proviso to Section 47 (1) of the Act of 1974 shifts the burden of proof, on the opposite parties 2 to 9/accused to establish that the offence which had been committed by the company, was without their knowledge or they had exercised their all the due diligence to prevent the commission of such offence. Where the offence has been committed by a company, the non obstante clause of Section 47 (2) imposes burden of proof on complainant, that the offence has been committed with the consent or connivance or is attributable to any neglect on the part of the director, manager, secretary or other officers of the company, then only such director, manager, secretary or other officers shall be liable for punishment and be deemed guilty of that offence. Neither the documentary evidence, nor the oral testimony of prosecution witnesses PW 1 and PW 2 are able to establish the role/duties/liabilities of opposite party Nos. 2, 3, 5, 6, 8 and 9 with regard to functions of opposite party No.1. The complainant also failed to establish that aforesaid opposite parties were responsible for the disobedience of order of the court dated 11.06.1986.

16. It reveals from the record that in the proceedings, vide order dated 28.02.1997 the charge for the offence defined under Section 41 (2) was framed by the court against opposite party No.1-M/s B.V.K. Distillery, Nandganj, Ghazipur through its Chief Executive Officer/Director M.K. Pilani. At that time the complainant did not pray to frame charges against opposite parties 2 to 9. It further reveals from the record that in the same order, learned trial court had mentioned the fact that, earlier the industry was being managed by Shri P.K. Tiwari and subsequently, particularly on the date when the complaint under Section 41 (2) was filed in the court against opposite parties, the industry was being managed by Chief Executive Officer/Director M.K. Pilani. On 28.02.1997 the industry (opposite party No.1), through its Chief Executive Officer/Director M.K. Pilani confessed the offence, accordingly, the court had punished the company through its Chief Executive Officer/Director with the fine of Rs.5,000/-. Learned Amicus Curiae has submitted that the amount of fine has been paid by the company promptly. By the aforesaid order dated 28.02.1997, it has been concluded by the trial court that Mr. M.K. Pilani was the Chief Executive Officer/Director of the company, accordingly, the court punished the company with the sentence of fine. The order dated 28.02.1997 has not been challenged by the complainant and has become final.

17. Having examined the arguments advanced by the learned counsel for the parties, facts of the case and material available on record, this court is of the view that the complainant could not establish that the opposite party Nos. 2, 3, 5, 6, 8 and 9 were incharge of the company and were responsible to the company for conduct of the business of the company as well as were responsible to comply the order of the court dated 11.08.1986 and due to their failure to comply the order of the court, the opposite party No.1 became liable for the offence.

18. During course of the argument, learned counsel for the appellant mentioned the fact that industry, i.e. M/s P.V.K. Distillery Ltd. Nandganj, Ghazipur was failed to establish E.T.P. to the satisfaction of the Pollution Control Board, therefore, the industry has been closed.

19. In view of the above, the appeal has no force and is liable to be dismissed. Accordingly, the appeal is dismissed.

20. The Amicus Curiae will get Rs.10,000/- as his fee, in accordance with rule.

21. Let the record be sent to trial court.

22. Cost easy.

Order Date : 03.03.2023

ML/-