Gujarat High Court

Gujarat Pollution Control ... vs State Of Gujarat on 30 March, 2022

Bench: Rajendra M. Sareen

    R/CR.A/2616/2009                                CAV JUDGMENT DATED: 30/03/2022




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CRIMINAL APPEAL NO. 2616 of 2009

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2      To be referred to the Reporter or not ?

3      Whether their Lordships wish to see the fair copy
       of the judgment ?

4      Whether this case involves a substantial question

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== GUJARAT POLLUTION CONTROL BOARD,THRO' PANKAJKUMAR VAIDA Versus STATE OF GUJARAT & 7 other(s) ========================================================== Appearance:

MR RITURAJ M MEENA(3224) for the Appellant(s) No. 1 MR.HARDIK B SHAH(3751) for the Opponent(s)/Respondent(s) No. 2,3,4,5,6,7,8 MR RC KODEKAR, ADDL PUBLIC PROSECUTOR for the

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CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

Date : 30/03/2022

CAV JUDGMENT

1. The present appeal, under section 378(5) of the Code of

Criminal Procedure, 1973, is directed against the judgment and

order of acquittal dated 31.03.2008 passed by the learned Chief

Judicial Magistrate, Vyara, in Criminal Case No. 3509 of 1991,

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whereby the learned Magistrate has acquitted the respondents

- accused from the charges levelled against them.

2. The brief facts of the prosecution case is that the

respondent No. 2 is the registered partnership firm and

respondents Nos.3 to 8 are partners of such firm, amongst

them respondent No.8 is Manager of respondent No.2 firm. It

is alleged that respondent Nos.3 to 8 are responsible and liable

for day to day affairs of the firm and they are discharging the

polluted water without any process or treatment. It is also

alleged that respondents are discharging large quantity of

polluted wanter and they have not taken proper permission for

that. It is alleged that on 20.03.1991 the officers of the Board

have visited the premises for inspection and took the sample of

effluent water which was sent for analysis and the report had

come on 21.04.1991. It is alleged that the Public Analyst

submitted the Report and as per the said Report it was found

that the accused have committed the breach of Sections 24,

25, 33(2), 41(2), 43. 44 and 47 of the Water (Prevention and

Control of Pollution) Act, 1974 (herein after referred to as 'the

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Act'), and therefore, after obtaining sanction complaint has

been filed against the respondents - accused. Thereafter, the

trial was conducted against the respondents - accused. The

trial Court examined the witnesses and also considered the

documentary evidence led before it and after considering the

documentary as well as oral evidence has acquitted the

respondents - accused from the charges levelled against them.

3. Heard learned advocate Mr. Rituraj Meena for the

appellant, learned advocate Mr. Hardik B. Shah for

respondents- original accused and learned APP for respondent

- State.

4. It was contended by learned Advocate Mr. Rituraj Meena

for the appellant that the judgment and order of the learned

Magistrate is not proper, legal and it is erroneous. He has also

contended that the learned Magistrate has not considered the

evidence of the witnesses. He has contended that the Board

Officers have followed the rules prescribed by law and the

Officer of the Board have also followed the procedure of taking

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the sample. The sample was seized and sealed properly. Yet,

the learned Magistrate has not considered the evidence of

prosecution. Therefore, the order impugned in this appeal

passed by the learned Magistrate requires to be quashed and

set aside.

5. Learned Advocate Mr. Hardik B. Shah, appearing for the

respondents - original accused, has supported the judgment

and order of acquittal passed by the trial Court and contended

that the trial Court has rightly acquitted the respondents -

accused.

6. I have gone through the judgment and order passed by

the trial court. I have also perused the oral as well as

documentary evidence led by the trial court and also

considered the submissions made by learned Advocate for the

appellant.

6.1 It is a settled legal position that in acquittal appeal, the

Appellate Court is not required to re-write the judgment or to

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give fresh reasoning when the Appellate Court is in agreement

with the reasons assigned by the trial court acquitting the

accused. In the instant case, this Court is in full agreement

with the reasons given and findings recorded by the trial Court

while acquitting the respondents- accused and adopting the

said reasons and for the reasons aforesaid, in my view, the

impugned judgment is just, legal and proper and requires no

interference by this Court at this stage.

6.2 If we peruse the impugned judgment, it appears that the

trial Court has taken into consideration the fact that

respondents have obtained NOC, consent order and amended

consent order also. Thereby, they have followed due process of

law.

6.3 The trial Court has also taken into consideration that

provisions of Section 21 of the Act and Rule 27 of the Gujarat

Water (Prevention and Control of Pollution) Rules, 1976 (herein

after referred to as 'the Rules') are not followed. For which

the learned Judge has relied upon decisions of this Court in

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case of Dahyabhai Kalubhai Solanki vs. Devine Intermediates &

Chemicals & Ors. reported in 1996 (1) GLR 729, wherein the

Court has discussed the provisions of Section 21 of the Act.

Section 21 of the Act reads as under;

"21. Power to take samples of effluents and procedure to be followed in connection therewith.--

(1) A State Board or any officer empowered by it in this behalf shall have power to take for the purpose of analysis samples of water from any stream or well or samples of any sewage or trade effluent which is passing from any plant or vessel or from or over any place into any such stream or well.

(2) The result of any analysis of a sample of any sewage or trade effluent taken under sub-section (1) shall not be admissible in evidence in any legal proceeding unless the provisions of sub-sections (3), (4) and (5) are complied with. (3) Subject to the provisions of sub-sections (4) and (5), when a sample (composite or otherwise as may be warranted by the process used) of any sewage or trade effluent is taken for analysis under sub-section (1), the person taking the sample shall--

(a) serve on the person in charge of, or having control over, the plant or vessel or in occupation of the place (which person is hereinafter referred to as the occupier) or any agent of such occupier, a notice, then and there in such form as may be prescribed of his intention to have it so analysed;

(b) in the presence of the occupier or his agent, divide the sample into two parts;

(c) cause each part to be placed in a container which shall be marked and sealed and shall also be signed both by the person taking the sample and the occupier or his agent;

(d) send one container forthwith,--

(i) in a case where such sample is taken from any area situated in a Union territory, to the laboratory established or

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recognised by the Central Board under section 16; and

(ii) in any other case, to the laboratory established or recognised by the State Board under section 17;

Xxxx xxxx xxxx xxxx (5) When a sample of any sewage or trade effluent is taken for analysis under sub-section (1) and the person taking the sample serves on the occupier or his agent a notice under clause (a) of sub-section (3) and the occupier or his agent who is present at the time of taking the sample does not make a request for dividing the sample into two parts as provided in clause (b) of sub-section (3), then, the sample so taken shall be placed in a container which shall be marked and sealed and shall also be signed by the person taking the sample and the same shall be sent forthwith by such person for analysis to the laboratory referred to in sub-clause (i) or sub-clause (ii), as the case may be, of clause (d) of sub- section (3)."

6.4 It is also held by the trial Court that there is, however, a

clear breach of the rules of the Gujarat Water (Prevention and

Control of Pollution) Rules, 1976 in respect of following the

procedure for submitting the samples to State Water

Laboratory. Rule 27 of the said Rules reads as under:

"27. Procedure for submitting samples to State Water Laboratory. - While submitting samples for analysis to the State Water Laboratory, the following procedure shall be followed:

(1) The sample shall be collected preferably in polythene container and shall be labelled giving the following details, namely:

(i) the source, and nature of sample,

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(ii) the date and time of collection,

(iii) the method of preservation used.

(b) At least 2.5 litres of the materials required to be analyed shall be sent in a container, the capacity of which shall not be less than 3 litres and not be more than 5 litres.

(c) The sample shall accompany with the letter from the concerned authority and shall give the number of parameters to be analysed.

(d) The sample shall be preferably transported to the Laboratory by a messenger.

(e) The messenger shall take receipt of sample from the Laboratory.

(f) Fees for analysis shall be paid either in advance or at the time of submission of sample.

(g) The sample shall be preserved as per the instruction given in IS-2488-1966 and 1968 (Part I, II and III) and IS 4733-1968."

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6.5 If we peruse the evidence of Mr. Bharatbhai Dalpatbhai

Mistry at Exh.16, who has taken the sample, he has failed to

establish that whether the sample has been collected in plastic

bucket or metal bucket. The sample was transferred to plastic

carboy. As per the provision of Section 27, sample has to be

collected in polythene container. He also could not say that

whether preservative chemical was added to the sample or not.

If we peruse the document produced at Exh.22, by which

samples were sent for analysis, it is not clear that to preserve

sample, which chemical has been used and that sample was

properly sealed or not. As per provision of Section 27(1) of the

Rules, a slip containing details regarding source of sample and

nature of sample, date and time and method of preserving

sample need to be shown. However, as per the evidence of

Mr.Bharat Mistri, he has filled in details like name of the unit,

name of partners, date as well as time of taking sample on

slip. But he has no where stated that he has mentioned the

source and nature of sample on the slip. It is pertinent to note

that though samples were collected on 20.03.1991, the report

of Public Analyst came on 21.04.1991 i.e. almost after a month

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and there is no clarity that what happended to samples

through out this period. Therefore, it can be said that

provisions of Section 21 of the Act and Rule 27 of the Rules

are not followed properly. As such complainant has failed to

prove his case beyond reasonable doubt.

7. In a decision of the Apex Court in the case of State of

Goa V. Sanjay Thakran & Anr. Reported in (2007)3 SCC 75 ,

the Court has reiterated the powers of the High Court in such

cases. In para 16 of the said decision the Court has observed

as under:

"16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below.

However, the appellate court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances,

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to reappreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with."

8. Similar principle has been laid down by the Apex Court

in the cases of State of Uttar Pradesh Vs. Ram Veer Singh &

Ors, reported in 2007 AIR SCW 5553 and in Girja Prasad

(Dead) by LRs Vs. state of MP, reported in 2007 AIR SCW

5589. Thus, the powers which this Court may exercise against

an order of acquittal are well settled.

9. It is also a settled legal position that in acquittal appeal,

the appellate court is not required to re-write the judgment or

to give fresh reasonings, when the reasons assigned by the

Court below are found to be just and proper. Such principle is

laid down by the Apex Court in the case of State of Karnataka

Vs. Hemareddy, reported in AIR 1981 SC 1417.