Karnataka High Court
The Karnataka State Pollution vs M/S Shantadurga Transports on 7 January, 2021
Author: Ravi.V.Hosmani
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,
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)
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)
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
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.
IN 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
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,
(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
(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
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
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
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
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
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).
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.
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
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
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.
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
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.
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
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
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
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.
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.
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
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;
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
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
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:--
(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),
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.
Section 31A in THE AIR (PREVENTION AND
CONTROL OF POLLUTION) ACT, 1981
[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
[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
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,
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,
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
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
