Maharashtra Pollutiuon Control ... vs M/S Deepak Fertilisers & Ors
2017 Latest Caselaw 6933 Bom

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         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




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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


JUDGMENT :

The Maharashtra Pollution Control Board (' MPCB '

for short) has preferred this Appeal under Section 378(4) of

the Code of Criminal Procedure, 1973 against the judgment

and order dated 25.10.2001 passed by the learned Additional

Sessions Judge, Raigad, Alibag in Criminal Appeal No.6 of

1997 whereby the Respondent No.1-Company was acquitted of

the offences punishable under Sections 24 read with Section

43 of the Water (Prevention and Control of Pollution) Act,

1974.

2 Heard the learned counsel for the Appellants and

the learned counsel for the Respondent No.1-Company.

Perused the records and proceedings and the judgment and

order passed at the first instance by the learned JMFC, Panvel

in Regular Criminal Case No.122 of 1994 dated 20.12.1996

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and the judgment and order dated 25.10.2001 passed in the

Criminal Appeal No.6 of 1997 by the learned Additional

Sessions Judge, Raigad, Alibag.

3 The MPCB had filed a complaint against the

Respondent No.1 and two of its officers under Sections 43, 44,

45(A) read with Sections 24,25, 26 of the Water (Prevention

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 Respondent No.1 is the limited company incorporated

under the provisions of the Companies Act, 1956. The other

two accused were persons in-charge and responsible to

conduct the business of the accused company and in that

capacity, they were jointly and severally liable for non-

compliance of consent conditions and discharge of polluted

water from the factory of Accused No.1 into the environment

not conforming to the standards prescribed by the Board in its

consent issued to the Accused No.1 and the renewal of consent

orders issued from time to time. The member secretary of the

Board granted consent to Accused No.1 dated 10.1.1983

which was valid upto 31.1.1985 stipulating therein certain

terms and conditions for operating plant by the Accused. One

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of the conditions relates to disposal whereunder the

Respondents were under obligation to discharge treated

effluent in MIDC Sewage System; and until such facilities are

made available, it shall be disposed of into local nala. It is the

Complainant's case that the Respondents had discharged its

effluent in violation of the standard prescribed by the consent.

On 17.2.1994, sample of the said effluent was collected and

analysed whereupon it was found that the Respondent-

Company was discharging the effluent causing environmental

hazard. The Complainant further alleged that on 17.2.1994, a

sample was collected at the extreme end of the drain carrying

the effluent of the factory of the accused. Samples were sent to

the Government Analyst, Public Health Laboratory for the

analysis and also the Board Laboratory at New Bombay. The

reports would show that parameters like suspended solids

amonical nitrogen and nitrate nitrogen were not meeting the

standards prescribed by the Board. In the complaint, it was

alleged that factory of the Respondent-Company was

discharging highly alkaline water in Kasadi river and thereby

causing environmental pollution. On this set of allegations, the

complaint was filed by the Board.

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4 The learned JMFC after appreciating the evidence

acquitted the officers of the said company, however, convicted

the company by the judgment and order dated 20.12.1996

whereby company was convicted under Section 24 read with

Section 43 of the said Act and imposed the fine of Rs.5,000/-.

Aggrieved by the conviction, the company had preferred an

Appeal before the Additional Sessions Judge, Alibag, Raigad

who was pleased to acquit the company by the judgment and

order dated 25.10.2001. That against the said acquittal, the

Board has preferred this Appeal.

5 As it appears from the record that sample was

collected on 17.2.1994 by the authorised officer of the Board

and was sent for analysis to the State Laboratory and the

laboratory of the Water Board. Therefore, the prosecution was

in respect of alkaline effluent notice by the board. While taking

sample on 17.2.1994, P.W.1-Complainant in his evidence had

stated that effluent treatment plant of accused is connected by

pipe to the effluent treatment at MIDC , Taloja. It appears from

his evidence that compound wall of the accused factory is

situated about 6/7 meters towards Kasadi river side from

their effluent treatment plant structure. This witness

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admitted that there were about 25 factories in MIDC, Taloja

and effluent from all these factories were collected in MIDC

plant and effluent from MIDC plant was discharged in the

creek at MIDC, Taloja and the said creek is not part of the

Kasadi river.

The Complainant had examined Mr. Fulmali, P.W.2 who

had collected sample on 17.2.1994. According to him,

alongwith production manager of the accused factory, he took

an effluent sample from the extreme end of the drain of the

accused effluent treatment plant from a pipe carrying effluent

beyond effluent treatment plant. In cross-examination, he,

however, admitted that there is distance of more than 17

meters between the effluent treatment plant and compound

wall of the company and the distance between the compound

wall and Kasadi river is more than 20 meters. It is his version

that when he collected sample, he did not go beyond the

compound wall. It also appears that he could not answer

court's question, as to from which plant, he collected the

sample of effluent.

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6                The learned Appellate Court upon appreciating the

evidence of the Complainant and P.W.2-Mr. Fulmali has

correctly concluded the factum of collection of sample at the

extreme end of the drain carrying effluent of the factory of the

accused was doubtful. More so, it also appears from the

evidence that the effluent treatment plant of the accused is

connected by the pipe to the effluent treatment plant of the

MIDC, Taloja. In the given set of facts, it cannot be said that

the finding recorded by the learned Appellate Court is

unreasonable and I do not find any compelling and substantial

reasons to interfere with the finding recorded by the learned

Appellate Court on the factum of collection of sample which

according to it was doubtful. That once it is held that the

factum of collection of sample was itself doubtful, all further

steps taken in pursuant thereto like that of obtaining report

does not carry prosecution case any more further. In view of

this fact, I am of the view that finding recorded by the learned

Appellate Court does not require any interference.

7 Besides, after perusing the record, it also appears

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

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words, factum of collection of samples by Mr. Fulmali on

17.2.1994 has not been referred to in the charge . In view of

this admitted fact, the learned Appellate Court has correctly

held that the charge itself was defective. More so, it is also

brought to the notice of this Court that while authorizing to

file complaint against the accused, as per the resolution,

company and its officers were to prosecution in respect of

violation of provisions of Sections 24 and 25 of the Said Act. In

other words, there was no authorisation to prosecute the

company under Section 24 of the said Act. However,

complaint, was also filed under Section 24 of the said Act. On

this count also, finding recorded by the Appellate Court that

the complainant had no authority to prosecute the company

under Section 24 in absence of authorisation strikes at the

root of the prosecution case, also deserves no interference.

8 It is settled position of law that an order of

acquittal has to be interfered only when there are compelling

and substantial reasons for doing so and if the order is clearly

unreasonable. In the case in hand, in my view, the prosecution

has not established beyond reasonable doubt that they had

collected the samples at extreme end of the drain carrying

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effluent of the factory. In fact, the prosecution witness had

admitted that the effluent treatment plant of the accused is

connected by pipe to the effluent treatment plant of the MIDC

at Taloja. Besides, it is an admitted fact that the Complainant

was not authorised to prosecute the company under Section

24 of the said Act. It is in these circumstances even though

laboratory reports indicate that the effluent release by the

company were not conforming with the standards in terms of

the consent but since collection of sample of effluent was itself

doubtful, in my view, the Appellate Court has not committed

any error in acquitting the respondent no.1-company.

That for the reasons aforesaid, the above Criminal

Appeal fails and accordingly stands dismissed

(SANDEEP K. SHINDE, J)

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