Delhi District Court
Delhi Pollution Control Committee vs . M/S. Diwan Saheb on 1 June, 2013
IN THE COURT OF SH. DEVENDRA KUMAR SHARMA
ADDL. CHIEF METROPOLITAN MAGISTRATE (Spl. Acts) CENTRAL
TIS HAZARI COURTS, DELHI
DELHI POLLUTION CONTROL COMMITTEE VS. M/S. DIWAN SAHEB
FASHION PVT. LTD.
CC NO. 207/6
ORDER ON CHARGE
1.Briefly stated, the fact in the complaint is that a notification bearing no. F08/ (86)/EA/ENV/2008/9473 dt. 07.01.09, after exercising the powers conferred u/s. 5 of the Environment Protection Act, 1986(hereinafter referred to as EP Act) r/w notification dt. 10.09.92 and in compliance of Hon'ble High Court of Delhi order dt. 07.08.08 in WP(C)No.6456 of 2004 titled as Sh. Vinod Kumar Jain & Ors. Vs. Union of India & Ors. which was issued by the Hon'ble LG of National Territory of Delhi.
2. In the said notification, use, sell and storage of all kinds of plastic bags was prohibited. The relevant provision of the said notification runs as under:
"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 use of plastic bags as prescribed under Bio Medical Waste (Management and Handling) Rules, 1998.
c. All restaurants and eating places having seating capacity of more than 50 seats.
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d. All fruit and vegetable outlets of Mother Dairy.
e. All liquor vends
f. All shopping Malls
g. All shops in main markets and local shopping centers. h. All retail and wholesale outlets of Branded Chain of outlets selling different consumer products including fruits and vegetables.
3. That in places other than the aforesaid places and as observed by the Hon'ble High Court of Delhi only Biodegradable plastic bags shall be used."
3. It is further alleged that in a meeting held on 09.03.09, it was decided to demarcate specific jurisdiction to various agencies and to issue a public notice in various newspapers. Accordingly public notices were issued in national dailies informing the general public about the ban.
4. The Delhi Pollution Control Committee(hereinafter referred to as DPCC) is the State Pollution Control body of Delhi for the purposes of controlling the pollution and environmental breaches etc. Thus, present complaint has been filed by it through Dr. A.K. Ambasht. He is authorised to file the present complaint vide a resolution dt. 09.12.09 passed in his favour by DPCC.
5. It is further alleged that the accused no. 1 is situated at Shop no. F9B/10, Cross River Mall, Shahdara, Delhi and is being run/administered by accused no. 2 who is the Sales Executive of accused no. 1 and is responsible for DPCC VS. M/S. DIWAN SAHEB FASHION P. LTD. 27 conduct and day to day affairs of accused no. 1. He was managing and controlling all the day to day dealings, transactions and business of accused no. 1. A raid were conducted and samples of the plastic bags were took from the business premises of accused no. 1 on 29.07.09. During the inspection, it was further found that accused have willfully violating/contravening the notification dt. 07.01.09. It was found that accused was using/storing plastic carry bags for selling their products. The plastic bags were seized and seizure memo was prepared. Thus, it is clear that above named accused has willfully contravened notification dt. 07.01.09 for personal benefits and thus, have committed the offence punishable u/s 15 of the EP Act. Hence, the present complaint.
6. After summoning of accused, accused were admitted to bail, copies of complaint and documents were supplied to the accused and matter was fixed for precharge evidence.
To prove its case, complainant examined himself as CW1, Sh. B.M.S. Reddy as CW2 and Ms. Mantrana as CW3. Witness CW2 conducted the raid and he deposed moreover the same facts regarding the raid, seizure of case property and other aspects of the inspection on the line of complaint. He also identified the case property i.e Ex.CW1/3. Witness CW3 joined the inspection alongwith CW2 and signed the seizure memo. CW2 further deposed that samples were seized in her presence vide seizure memo Ex.CW1/2. The witness CW1 and CW2 were cross examined at length.
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7. I have given my thoughtful consideration to the submissions advanced on behalf of parties and have gone through the relevant records.
8. Ld. defence counsel argued that according to draft notification filed by the accused sample was required to be taken but no sample was sent for expert opinion under the rules. It is further argued that there are contradictions regarding day and time of raid. It is further argued that no name, address or signature of any such customer who was using or carrying goods in polythene bags was recorded as well as no bill was collected regarding purchase of paper carry bags from accused no. 1. Moreover, witness Siddharth Gautam was not examined in precharge evidence. Thus, it is prayed that since there is violation of mandatory procedures and since no sample was sent, therefore, accused is entitled for discharge as no prima facie case is made out.
9. On the other hand, it has been contended on behalf of complainant that there is sufficient evidence on record from the testimony of witnesses and in the form of documentary evidence to make out the case prima facie against the accused for contravention of notification dt. 07.01.09.
10. Minor contradictions regarding time, manner of seizure are inconsequential at this stage. There is no law which mandates the joining of public witness in DPCC VS. M/S. DIWAN SAHEB FASHION P. LTD. 47 each case. Further notification relied upon by the accused is only draft notification which were never published.
11. It is well settled law regarding consideration at the stage of framing of charge, the court has power to shift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against accused has been made out. It is held that when the material placed before the court discloses great suspicion against the accused which has not been properly explained, the court will be justified in framing charge. The judge should not make a roving inquiry into the pros and cons of the matter and weight the evidence as if he was conducting a trial. If on the basis of materials on record a court could come to the conclusion that commission of the offence is a provable consequence, a case of framing of charge exists. To put it differently, if the courts were to think that the accused might have committed the offence it can frame a charge, though for conviction the conclusion is required to be that accused has committed the offence. At the stage of framing of a charge probative value of the materials on records cannot be gone into, the material brought on record by the prosecution has to be accepted as true at that stage. The truth, veracity and effect of the evidence which has prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the provable defence of the accused. It is not obligatory for the judge at that stage of the trial to consider in any detail and weight in a sensitive balance whether the facts, if proved, would be DPCC VS. M/S. DIWAN SAHEB FASHION P. LTD. 57 incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at this stage of deciding the matter u/s 227 or u/s 228 of the Code. At that stage the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. But at the initial stage, if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. While deciding the question of framing of charge in a criminal case, the court is not to apply exactly the standard and test which it finally applies for determining the Guilt or otherwise. This being the initial stage of the trial, the court is not supposed to decide whether the materials collected by the Investigating Agency provides sufficient ground for conviction of the accused or whether the trial is sure to culminate in his conviction. What is required to be seen is whether there is strong suspicion which may lead to the court to think that there is ground for presuming that the accused has committed an offence. I have carefully gone through the record. In this regard this court is supported with law laid down by the Hon'ble Apex Court and Hon'ble High Court reported as "Union of India vs Prafulla Kumar, AIR 1979 Supreme Court 366, State of Maharashtra and others vs Som Nath Thapa and other JT 1996 (4) SC 615, State of Bihar vs Ramesh Singh, AIR 1997 SC 2018: (1997 CRI LJ 1606), Umar Abdula DPCC VS. M/S. DIWAN SAHEB FASHION P. LTD. 67 Sakoor Sorathia vs. Intelligence Officer Narcotic Control Bureau JT 1999 (5) SC 394, Kalu Mal Gupta vs. State 2000 I AD Delhi 107.
12. Thus, from the above discussion, this court is of the opinion that there are sufficient material on record against the accused persons for framing the charge u/s 15 r/w Section 16 of E.P Act as prima facie the witnesses appearing before the court has established that the accused no. 2 was present at the time of raid at business premises, he signed the seizure memo of the case property and even there is endorsement that he received the copy of seizure memo and he was incharge of affairs of accused no. 1 at relevant time. Put up for framing of charge on 08.07.13.
(DEVENDRA KUMAR SHARMA) ACMM(Special Acts) CENTRAL TIS HAZARI COURTS, DELHI Announced in open court on 1st June, 2013.
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