Delhi District Court
Judge(01): Outer: Rohini Courts: Delhi vs Delhi Pollution Control Committee on 15 May, 2012
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IN THE COURT OF SH. SANJEEV KUMAR: ADDL. SESSIONS
JUDGE(01): OUTER: ROHINI COURTS: DELHI
CRIMINAL REVISION NO.21/11.
PSVIJAY VIHAR
THOMAS VARGHESE
S/O. MR. T. VARGHESE
ADITYA BIRLA RETAIL LIMITED
th th
5 & 6 FLOOR, 86/92SKYLINE ICON,
NEAR MITTAL INDUSTRIAL ESTATE,
ANDHERI KURLA ROAD,
ANDHERI (EAST), MUMBAI400059. .....REVISIONIST
VERSUS
DELHI POLLUTION CONTROL COMMITTEE
IVth FLOOR, ISBT BUILDING,
KASHMERE GATE, DELHI110006. ....... RESPONDENT
IMPUGNED ORDER DATED 06.01.2011 PASSED
BY LD.MM, ROHINI, DELHI, IN C.C. NO.01/11, U/S.
15/16/19 OF THE ENVIRONMENT (PROTECTION)
ACT, 1986, PSVIJAY VIHAR.
Date of Institution in Sessions Court:19.07.2011
Date of arguments:30.03.2012
Date of Order:15.05.2012
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ORDER:
1. The present revision petition has been filed u/s. 397 & 399 Cr.P.C. against the order of ld. MM dated 06.01.2011, whereby ld. MM took the cognizance against the revisionist in complaint u/s. 15/16/19 of the Environment (Protection) Act, 1986, PSVijay Vihar and summoned the revisionist.
Brief facts of the case are that, Revisionist is CEO & Direct Incharge of M/s. Aditya Birla Retail Limited, which is running a store in the name and style of More Mega Store, situated at City Centre Mall, Sector10, Rohini, Delhi110085.
2. The official of the respondent Delhi Pollution Control Committee on 30.07.2010 carried out inspection of the aforesaid store and found that store was being run by Mr. Vivek (Store Incharge) and Mr. Kapil Kumar Sharma (Store Manager Finance) and on inspection it was found that store was using blastic bags for the purpose of selling goods to its 3 customers, which was used to sale and storage were banned vide notification dated 07.01.2009, issued by Lt. Governor, Delhi in exercising of power conferred u/s. 5 of the Environment (Protection) Act 1986. Hence, the complaint was filed before the ld. MM. The violation of the Section 5 Environment (Protection) Act is punishable as per Section 15 of the said Act, hence, the complaint was filed u/s. 19 of the said Act before the ld. MM and stated that the ld. MM vide its order dated 06.01.2011 took cognizance and issue summons to the Revisionist being as CEO/Director of the M/s. Aditya Birla Retailer Limitd, besides other respondents which included Mr. Vivek and Mr. Kapil Kumar Sharma.
3. Against the order of cognizance and issuance of summons, present petition has been filed on the following grounds:
(i) That there is no prima facie case against the revisionist.
(ii) That the order passed by the ld. MM is absolutely non speaking order and has been passed without application of judicial mind.
(iii) That ld. MM has failed to appreciate the fact admitted in 4 para 6 of the complaint that at the relevant time of inspection the store was being run and managed by Mr. Vivek, Store Incharge (as accused no.3) and Shri Kapil Kumar Sharma Store Manager (finance) (as accused no.4) and they were found operating the store at the relevant time of inspection, hence, there was no occasion to summon the revisionist.
(iv) That Ld. MM has failed to appreciate that neither in the complaint no public person has been mentioned as witness. Nor complaint discloses that any public person was asked to join the investigation.
(v) Ld. MM failed to appreciate that revisionist being the CEO of M/s. Aditya Birla Retail Limited has been assigned with all the executive level affairs of the company at pan India basis and he was not directly Incharge or was responsible of day to day operation and activities of said store in Delhi and he is not directly concerned with the activities and operation of the store and never consented for use and sale or storage of the polythene bags. There is no neglect attributable to the revisionist.
4. I have heard arguments of Shri G.P. Thareja, ld. Counsel for the Revisionist and Shri Anuj Aggarwal, ld. Counsel for respondent in detail and gone through the record.
5. It is argued by the ld. Counsel for the Revisionist that as per 5 Section 202(1) of the Cr.P.C. proviso the person who residing outside the jurisdiction of the court cannot be summoned with a proper inquiry by the court and since in this case no inquiry has been conducted by the ld. Trial court, therefore, this summoning order is bad in law. He further argued that as per Section 19 of the Environment (Protection) Act, the cognizance cannot be taken by the court on the complaint made by the member of the Delhi Pollution Control Committee as they are not authorised by the Central Government. He further submits that the complaint has been filed by Shri M.S. Rawat of Delhi Pollution Control Committee to said Committee is constituted under the Deptt. of Environment, GNCT of Delhi, which is not a Central Government. Hence, cognizance taken by ld. MM is bad in law. He further argued that as per Section 16 of the Act, if the offence is done by the company then the person Director Incharge of the company will be responsible. But revisionist is not direction Incharg of the particular store where offence was committed. Hence, he should not has been summoned. 6
6. On the other hand, ld. Counsel for the respondent has argued that the Hon'ble Supreme Court has held in case Abhishek Agrawalla vs Boortmalt NV & Anr in Crl. Rev P. No. 08/2010, dated 14.2.2011, as while dealing with the similar question as held that whether the case of the prosecution is solely based on the oral evidence, in that case, no inquiry is required u/s. 202 Cr.P.C., hence, court can summon directly as in the present case. He further argued that revisionist is directly incharge of the M/s. Aditya Birla Mega Store (respondent no.1), as he is the CEO of the company, hence, as per Section 16 of the Act, he can be prosecuted. Further, he has argued that complainant M.S. Rawat is duly competent to file the complaint, as he has been authorized by the DPCC. In this regard he has relied upon AnnexureA, in which it is mentioned that Assistant Environment Engineer (AEE) is authorized to file the complaint. Further he is authorized vide notification dated 10.04.1992, whereby Lt. Governor has been authorized to exercise power u/s. 5 of the Environment (Protection) 7 Act, 1986. Hence, he argued that there is no merit in the revision petition and same may be dismissed.
7. First of all I agree with the contention of respondent that since the complainant is a Government Servant, therefore, there is no need to examine him u/s. 200 Cr.P.C.
8. Since Revisionist is residing outside the jurisdiction of court, whether inquiry u/s. 202 (1) Cr.P.C. is required. Proviso of Section 202 Cr.P.C. is reproduced as below: "Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him u/s.192 may, if he thinks fit 1[and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction], postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceedings:
Provided that no such direction for investigation shall be made 8
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session: or
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath u/s.200.
On perusal of the case of the complainant I found that, this entire case is based on the documentary evidence and oral evidence for which no inquiry is required, therefore, I rely upon the Judgment Abhishek Agrawalla vs Boortmalt NV & Anr (Supra) has held that there is no need to hold any inquiry u/s. 202 (1) Cr.P.C. by the ld. MM before summoning the revisionist.
9. Now coming to the contention of ld. Counsel for the revisionist that court would take cognizance of any offence under this act untill the person who had filed the complaint is authorized by the Central Government or any authority or other officer authorized by the Central Government.
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On perusal of the documents, I found that complainant has placed on record a notification of the department of Home dated 7.1.2009 whereby Hon'ble Lt. Governor has banned the use and storage of plastic bags. This notification has been issued by Sushma Jerath, Deputy Secretary on behalf of Lt. Governor of Delhi. The relevant portion of the said notification is reproduced as under: "No.F.08(86)/EA/Env./2008/9473.In exercise of the powers conferred by Section 5 of the Environment (Protection) Act, 1986 read with notification No. U11030/J/91UTL dated 10.09.1992 and in compliance of the Hon'ble High Court of Delhi's order dated 7th August, 2008 in WP (C) No.6456 of 2004, the Lieutenant Governor of National Capital Territory of Delhi hereby directs the following:
2. That the use, sale and storage of all kinds of plastic bags shall be forbidden in respect of the following places in the National Capital Territory of Delhi, namely:
(a) Five Star and Four Star Hotels.
(b) Hospitals with 100 or more beds except for the use of plastic bags as prescribed under the Medical Waste (Management and Handling) Rules, 1998.
(c) All restaurants and eating places having sitting capacity of more than 50 seats.
(d) All fruit and vegetable outlets of Mother Dairy. 10
(e) All liquor vends.
(f) All shopping Malls.
(g) All shops in main markets and local shopping
centres.
(h) All retail and wholesale outlets of Branded chain of outlets selling different consumer products including fruits and vegetable.
3. In places other than the aforesaid places and as observed by the Hon'ble High Court of Delhi only Bio degradable plastic bags shall be used.
The following Officers shall implement these orders in their respective jurisdiction namely
1. Member Secretary, DPCC and its staff.
2. Director Environment, and staff of Environment Dept. Govt. of Delhi.
3. Additional Divisional Magistrates in their respective district.
4. SubDivisional Magistrates in their respective jurisdiction.
5. Environmental Engineers, DPCC in their respective jurisdiction.
6. Asstt. Commissioner (FL), MCD.
7. Food and Supply Officer, in their respective Jurisdiction.
8. Medical Officer Health, NDMC.
9. Director Health Services, Government of National Capital Territory of Delhi.
10.Municipal Health Officer, MCD.
11.Food Inspectors of PFA Department, Government of National Capital Territory of Delhi.
4. Member Secretary, Delhi Pollution Control Committee 11 shall act as the coordinator to implement above orders. The Chairman and Member Secretary of the Delhi Pollution Control Committee are authorised to lodge the complaint under Section 19 of the Environment (Protection), Act, 1986 vide notification No. S.O. 394(E) dated 16.4.1987 as further amended vide notification No. S.o. 624(E) dated 3.9.1996.
5. This is in supersession of the Government of Delhi's earlier notification no. F.8(86)/EA/Env./2005
(ii)/EA/Env./2005450, dated the 25th May, 2006.
6. This notification shall come into force with effect from the day it is notified in the Officer Gazette."
This notification has been issue in pursuance of the powers conferred u/s. 5 of the Environment (Protection) Act, 1986 of the Central Government to the Lieutenant Governor. Further notification dated 10.09.1992 issued by the Ministry of Home Affairs, which is reproduced as below: S.O.667(E). In pursuance of Clause (1) of Article 239 of the Constitution, the President hereby direct that subject to his control and until further orders, the Administrator (whether known as Lieutenant Governor, Chief Commissioner or Administrator) of the Union Territories of Andaman & Nocorbar Islands, Chandigarh, Dadra and Nagar Haveli, 12 Daman & Diu, the National Capital Territory of Delhi, Lakshadweep and Pondicherry shall in relation to Union Territories concern, also exercise the powers and discharge functions of the Central Government u/s. 5 of the Environment (Protection) Act, 1986 (29 of 1986) It is proved that Lieutenant Governor of Delhi has powers to discharge function of Central Government u/s. 5 of the Environment (Protection) Act 1986. Even otherwise, Delhi is not a full state and is a union territory, therefore, as per Section 39 AA of the Constitution certain power on behalf of the Central Government, therefore, in my view Lieutenant Governor is competent to authorized any person to act as authority u/s. 19 of the Environment (Protection) Act, 1986 to make the complaint and since in this case specifically as per notification of DPCC has been authorized to make complaint, therefore, its officers who entitled to make the complaint. Hence, cognizance taken by the ld. MM is not bad in law.
10. Now coming to the last contention of ld. Counsel for the Revisionist that since is not directly incharge of the store, therefore, he is 13 not responsible for the day to day affairs of the store, therefore, he should not be summoned. In my view, the said contention is not enable. The act talked about company not about particular store. The store is a part of the company, therefore, store has no independent identity. Hence, the person who were directly incharge of the company, beside person managing that store is equally liable for prosecution. Since in this case it is not denied that revisionist is not the CEO of the company or that he has not directly incharge of the M/s. Aditya Birla Retail Limited, who is solely owning the mega store. Therefore, in my view revisionist being the CEO cannot absolve from any wrong act done in the said store on his behalf.
11. In view of the aforesaid facts and circumstances, I held that there is no error in the impugned order passed by the ld. MM for summing the revisionist, hence, I dismiss the revision petition being without any merit. Trial Court Record be sent back to the trial court alongwith copy of order. File be consigned to record room.
Announced in the open Court (SANJEEV KUMAR) today i.e. 15.05.2012. ADDL. SESSIONS JUDGE- 01 (OUTER) ROHINI COURTS: DELHI.