Delhi District Court
Delhi Pollution Control Committee vs Ms Vishal Megamar on 18 April, 2024
DPCC Vs M/s Vishal Megamart
IN THE COURT OF SH. MAYANK MITTAL
ADDL. CHIEF METROPOLITAN MAGISTRATE (Spl. Acts)
CENTRAL, TIS HAZARI COURTS, DELHI
Delhi Pollution Control Committee Vs M/s Vishal Megamart
CC No. : 533218/2016
CNR No. : DLCT02-000974-2009
Date of Institution : 04.11.2009
Name of the complainant and : Delhi Pollution Control Committee
its registered office through Dr. A. K. Ambasht,
Member Secretary,
IVth floor, I. S. B. T. Building,
Kashmere Gate,
Delhi-110006.
Name of accused : (I) M/s Vishal Megamart,
parentage and address etc. 10210, Padam Singh Road,
Karol Bagh, New Delhi.
(ii) Mr. Nikhil Jain (Manager)
10210, Padam Singh Road,
Karol Bagh, New Delhi.
Offence complained of : U/s 15, 16, 19 of the Environment
(Protection) Act, 1986 and u/s 190
of Cr.P.C 1973 (As Amended upto
date)
Date of reserving Judgment : 30.03.2024
Plea of accused : Not guilty
Final Judgment : 18.04.2024
Brief facts and reasons for decision of the case:-
1.That the Complainant i.e. Delhi Pollution Control Committee (for short 'DPCC') filed the present complaint u/s 15, 16, 19 of the Environment (Protection) Act, 1986 and u/s 190 of Criminal Procedure Code 1973 (As amended upto date) against the accused. Present complaint was filed through Dr. A. K. Ambasht, the then Member CC No.533218/2016 Page no.1 to 34 DPCC Vs M/s Vishal Megamart Secretary in DPCC. That the Union of India had enacted the Act No. 29 of 1986 titled As "Environment (Protection) Act, 1986 (herein after referred to as the Act). The scope of this Act is to maintain and control the pollution and prevent environment degradation, etc. That the Complainant is a state body of Delhi for the purposes of controlling the pollution and environmental breaches, etc. and the Hon'ble Lieutenant Governor of National Capital Territory of Delhi after exercising the powers conferred by Section 5 of the Environment (Protection) Act, 1986 read with notification dt. 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, titled "Vinod Kumar Jain and Others versus Union of India and Others" issued directions against the use, sale & storage of all kinds of plastic bags in respect of the places as mentioned in the notification, on 07.01.2009.
The notification dated 07.01.2009 provides the following:
"1. That the use, sale & 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 Bio Medical Waste (Management & Handling) Rules, 1998.
c. All restaurants and eating places having seating capacity of more than 50 seats.
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.
2. That 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.
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DPCC Vs M/s Vishal Megamart
2. That a meeting was called on 09.03.2009 in the chamber of the Member Secretary, DPCC, with respect to implementation of the notification dated 07.01.2009. After detailed discussion, it was decided to demarcate specific jurisdiction to various agencies and to issue a public notice in various newspapers and copy of the minutes of the meeting dated 09.03.2009 is enclosed herewith as Annexure-C. That public notices were issued in various newspapers (national dailies) informing the public at large about the contents of the notification and about the jurisdiction of various agencies for effective implementations of the notification dated 07.01.2009. That accused no.1 is situated at 10210, Padam Singh Road Karol Bagh New Delhi and is a Famous Retail outlet and the same is being run, administered and managed by accused no.2.
That accused no.2, Mr. Nikhil Jain, Manager, who represented himself to be the Manager of M/s Vishal Megamart, 10210, Padam Singh Road, Karol Bagh New Delhi, is operating the unit at the aforesaid address under the name and style of M/s Vishal Megamart, 10210, Padam Singh Road Karol Bagh New Delhi and accused no.2 is the Manager of the accused no.1 and is in charge and responsible for conduct and the day to day affairs, functioning and business of the accused no.1. That the accused no.2 is managing and controlling all the day to day dealings, transactions and business of accused no.1 and is actively involved in violating the environmental laws. That one of the implementing officer of DPCC, as per notification dated 07.01.2009 took the samples of the plastic bags from the premises of accused no.1 on 21.07.2009, in compliance of the Notification dated 07.01.2009 and during the inspection it was found that the accused persons were willfully violating the prohibition as mentioned in the notification dated 07.01.2009. That further, it was found that the above named accused were found operating CC No.533218/2016 Page no.3 to 34 DPCC Vs M/s Vishal Megamart and using/selling products/storing of plastic bags in the premises and it is relevant to mention here that officials of the DPCC in presence of other witnesses took the sample and sealed the same which can be produced is the Court as and when desired. That from the above, it is clear that the above named accused have willfully violated the notification dated 07.01.2009 and Section 5 of Environment Protection Act, which they knew, was against the law. That the accused being fully aware that the usage of the plastic bags is forbidden/banned, has thus knowingly/willfully contravened/violated the provisions of law for their personal benefits and have committed offences punishable u/s 15 of the Environment Protection Act and the accused were and are legally bound to comply with the notification. That the accused being fully aware that the usage of the plastic bags is forbidden/banned, have willfully contravened/violated the provisions of the notification dated 07.01.2009. That from the above, it is clear that the accused has contravened/violated the provisions of section 5 of Environment Protection, 1986 read with notification dated 07.01.2009 and are liable to be prosecuted and punished in accordance with law.
3. After filing of the complaint, accused no.1 & 2 were summoned and thereafter, in pre charge evidence, prosecution examined Mr. Pankaj Kapil, Senior Environmental Engineer as CW1, Sh. M. I. Siddiqui, Environmental Engineer, DPCC as CW-2, Sh. R. K. Sharma, Environmental Engineer as CW3 and Dr. A. K. Ambasht, Chief Vigilance Officer, Delhi Jal Board as CW4.
3.1 CW1 Sh. Pankaj Kapil deposed that he was working as Sr. Environmental Engineer in DPCC and pursuant to notification CC No.533218/2016 Page no.4 to 34 DPCC Vs M/s Vishal Megamart dt.07.01.2009, public notice was advertised in various newspapers and the copy of public notice is Mark A, the public notification dt.07.01.2009 is ExCW1/1 and the said notification duly authorised him to implement the provision of said notification and he alongwith Sh. Rajeev Kumar Sharma and Sh. M. I. Siddqui, the then Asstt. EE alongwith Anchal Aggarwal and Shikha Gaur, Engineer trainee of DPCC visited the outlet of M/s Vishal Mega Mart situated at 10210, Padam Singh Road, Karol Bagh on 21.07.2009. That it was found that plastic bags were being used for selling the various consumer goods by the aforesaid outlet. That during the visit of the outlet, they met Sh. Vikas Sharma, the representative of the outlet who informed Mr. Nikhil Jain, Manager is the Incharge and the responsible person for conducting day to day affairs of the outlet. That accordingly the samples of the plastic bags were seized through a seizure memo ExCW1/2 dt.21.07.2009 which has been signed by him at point A and by Mr. Vikas Sharma at point B. That the accused were fully aware of the prohibition for using the plastic bags at their outlet therefore, they have willfully violated the notification dt.07.01.2009 and liable to be punished under the provisions of Environment Protection Act. That one envelop sealed with the tape which bears his signature at point A and signature of representative of accused at point B and other members of raiding team at point C is opened out of which printed polythene bags with Vishal Mega Mart of the same size is taken out and the case property is ExCW1/3(colly) and are again sealed with the court seal.
3.1.1 During his cross examination, CW1 stated that on the date of inspection/raid, he went to the place of accused no.1 alongwith four other officials and he did not make any entry into any office register regarding the raid on the raiding day. He voluntarily stated that there is no such CC No.533218/2016 Page no.5 to 34 DPCC Vs M/s Vishal Megamart procedure of making any entry. That nobody was heading the inspecting team and the team members visited as per the directions of Member Secretary (DPCC) and the members of the inspecting team changes as per the area marked to the concerned Engineer. That he was the senior most official in the inspecting team and he does not exactly remember as to who was the Chairman of DPCC at the relevant time, but in all probability it was Mr. J.K. Dadoo. Dr. A.K. Ambasht was the Member Secretary of DPCC during the relevant time. That the inspecting team was permitted to inspect the area for checking the use of plastic carry bags and otherwise also by virtue of notification dated 07.01.09, he was duly authorized to conduct the inspections for implementation of the notification. That the inspecting team had not gone to the premises of the accused company on any prior specific information, however, it was a random visit in Ajmal Khan Road, Karol Bagh. He does not remember the exact time of leaving office for inspection but it was probably in the afternoon. We left for inspection in official vehicle but he does not remember exactly the type of vehicle and its registration number, because of lapse of time. That he does not remember the name of the driver of the vehicle which was used for inspection purpose that day and since he has not filed the present complaint, he does not know if the log book of the vehicle has been filed alongwith the complaint or not. That he does not remember as to whether the log book entry of the said official vehicle was made or not and also he does not remember as to how many employees of the accused company were present during the inspection in the store. That they took signature of only that employee to whom the seizure memo was handed over and there were few customers also present in the store at the time of inspection. That they met Mr. Vikas Sharma of the accused company in the store that day and they did not CC No.533218/2016 Page no.6 to 34 DPCC Vs M/s Vishal Megamart make any customer as witness in the process of seizing the samples of plastic bags. That he did not see the ID card of Mr. Vikas Sharma, also he does not remember his designation. That he did not call any public persons to join the proceedings despite the fact that there were few public persons present over there. He voluntarily stated that as per his general experience, it has been observed that the public person do not come forward for signing of such kind of litigation memos. That he saw some customers carrying the materials in plastic bags, however, they did not put any effort to seize the plastic bags in which the products were being carried by the customers. That he does not remember the colour of the print of the plastic bags and he does not exactly remember as to in which place of the store/outlet he met Mr. Vikas Sharma. That eight number of plastic bags were recovered by the inspecting team at the packing and delivery counter and there were more plastic bags were lying at the said counter. That they did not seize all the plastic bags lying at the said counter despite knowing the fact that the said plastic bags were prohibited materials. He denied that they have made a false case against the accused persons and had not seized any prohibited material from the accused persons. He further denied that no raid/inspection was conducted at the premises of the accused company. That he does not remember whether any CCTV camera was installed in the store or not or that whether he took I-card of any of the employees or not. That they had not given any showcause notice to accused persons. He voluntarily stated that they had given the seizure memo. That he does not remember whether any search was conducted on the inspecting team by the employees/security guard at the entrance and seizure memo was prepared on the spot after seizing the plastic bags and copy of the same was served to Sh. Vikas Sharma. That the plastic bags which were seized from the CC No.533218/2016 Page no.7 to 34 DPCC Vs M/s Vishal Megamart premises of the accused having Vishal Megha Mart printed on them and sealing of the case property was done at the spot.
3.1.2. (During the cross examination of CW1, envelop containing the case property sealed with the seal of Court is opened and case property is taken out from the main envelop having the seal of the Court and shown to the witness.) It is correct that envelop and tape are not having any seal of DPCC/department. He voluntarily stated that the envelop is having the signature of the inspecting team as well as of Vikas Sharma, representative of the accused company. That the envelop and the tape were brought from the office of DPCC being general stationary item. He denied that we did not seize anything from Vishal Megha Mart. 3.1.3. During his cross examination on behalf of accused no.2, CW1 stated that the bags collected from the premises of accused No.1 were never sent to government laboratory for scientific analysis. He voluntarily stated that the same was not required as all kind of plastic bags were banned at the outlet of accused. He denied that his voluntary statement is wrong. That they had not collected the identity card of any of the employees of accused No.1 present at the time of raid / inspection and that they had not given any written notice to the public person (customers) present in the store at that time. That they had not requested Mr. Vikas Sharma (employee present at that time) to provide the CCTV footage of the inspection and that the seizure memo Ex. CW 1/2 does not bear the signature of accused No.2. He voluntarily stated that however, the seizure memo bears the name of Sh. Nikhil Jain along with his mobile number as provided by the representative of the outlet Sh. Vikas Sharma. That the hand written information in the seizure memo is not in his hand writing. He voluntarily stated that the information in seizure memo was written by one of the members of the raiding team.
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DPCC Vs M/s Vishal Megamart
3.1.4 To a specific question, he replied that he cannot say whether at the time of inspection / raid the accused No.2 was not present in the outlet because he might be present but he would have not come forward. That he did not verify the designation of Mr. Vikas Sharma. He voluntarily stated that Mr. Vikas Sharma told that Mr. Nikhil Jain is the Manager of the store, who is responsible for day to day work of the outlet. That he has not verified from other source as to whether accused No.2 was the Manager of the store at the relevant time and that he had not sought or collected any document reflecting that the accused No.2 was responsible for day to day affairs of the outlet. He denied that he has falsely implicated the accused No.2 in the present case. He denied that he has falsely implicated the accused No.2 for the purpose of saving another employee Mr. Vikas Sharma who was the Manager at the relevant time. 3.1.5. During his cross examination on behalf of accused no.1, CW1 stated that Annexure C to the complaint (running from page No.11 to 17) are the documents regarding the minutes dated 09.03.2009 circulated by Mr. B.M.S. Reddy vide No.DPCC/CMC/PB/2003 11455-11468 dated 09.03.2009, which is exhibited as Ex. CW 1/A1/1. That the witness has been shown this document who has confirmed the authenticity of the same. That in Para 5 of the complaint there is a mentioning of such minutes vide which the jurisdiction of various authorities was de- marcated. He voluntarily stated that specific jurisdiction was to be de- marcated but same was not de-marcated finally vide meeting dated 09.03.2009. That final de-marcating jurisdiction was publicized through public notice which he has exhibited in my pre-charge evidence. 3.1.6. During cross examination, witness has been confronted with Ex. CW1/A1/1 and stated that as per this notification his area operation was only hospitals with 100 or more beds. That after perusal of Ex. CW CC No.533218/2016 Page no.9 to 34 DPCC Vs M/s Vishal Megamart 1/A1/1 witness has stated that this is not the notification and in fact this is the draft of public notice. That the public notice relied upon by him for the purpose of his jurisdiction is Mark A already on record.
3.2 Complainant examined CW2 Mr. M. I. Siddiqui and he deposed that he was working as Environmental Engineer in DPCC and pursuant to notification dt.07.01.2009 public notice was advertised in various newspapers and the copy of public notice is Mark A, the public notification dt.07.01.2009 is ExCW1/1. The said notification duly authorised him to implement the provision of said notification and he alongwith Sh. Rajeev Kumar Sharma, AEE and Sh. Pankaj Kapil, Sr. EE alongwith Anchal Aggarwal and Shikha Gaur, Engineer trainee of DPCC visited the outlet of M/s Vishal Mega Mart situated at 10210, Padam Singh Road, Karol Bagh on 21.07.2009. That it was found that plastic bags were being used for selling the various consumer goods by the aforesaid outlet. That during the visit of the outlet, they met Sh. Vikas Sharma the representative of the outlet who informed Mr. Nikhil Jain, Manager is the incharge and the responsible person for conducting day to day affairs of the outlet. That accordingly the samples of the plastic bags were seized through a seizure memo ExCW1/2 dt.21.07.2009 which has been signed by him at point C and by Mr. Pankaj Kapil at point A and by Mr. Vikas Sharma at point B. That accused were fully aware of the prohibition for using the plastic bags at their outlet therefore, they have willfully violated the notification dt.07.01.2009 and liable to be punished under the provisions of Environment Protection Act The case property is already ExCW1/3(colly) which bears his signature at point D. 3.2.1. During his cross examination, CW2 deposed that he has gone to conduct a raid on 21.07.2009 along with his colleagues namely Mr. CC No.533218/2016 Page no.10 to 34 DPCC Vs M/s Vishal Megamart Pankaj Kapil. That Mr. RK. Sharma, EE and two trainee engineers Ms. Seekha and Ms. Anchal to the Mega Mart, they conducted raid at Bata and Raymond showroom. Ajmal Khan Road, Karol Bagh, Delhi. That he informed to his senior officers alongwith his colleagues, again said they informed and he has not placed any permission to conduct raid at any premises on the very same day and they have not mentioned any entry in office leaving documents/registers / in rojnamcha. That he voluntarily stated that there is no such provision or rojnamcha maintained at our office. To a specific question, witness has replied that he has officially received an envelop, lakh, match box and candle to seal the material before conducting the raid. That it is a routine procedure to obtain the above said materials during procedure for raid and with permission of higher authorities, they can leave the office and take out material required for the raid. That he is not complainant in this case, therefore, he does not know whether the permission to leave the office and taking out material was placed on record or not. That nobody was heading the raiding team as it was a team work. He denied that on 21.07.2009, they had given the notice to collect the sample to Vishal Mega Mart. Being confronted with document ExCW1/2, witness has stated that it is correct that in the subject of notice Ex. CW 1/2 it is written that "Notice of intention to take sample under Environment (Protection) Act-1986". 3.2.2. That it is correct that CW1/2 is a typed format which used to fill at the spot only. That it has been mentioned in the seizure memo that we have seized the plastic bag used by the Vishal Mega Mart. At the time of raid, five to eight persons from the public and only two employee which he met were there during the raid and the signature of no public witness was obtained on seizure memo dated 21.07.2009 Ex. CW1/2. That they all signed on the seizure memo Ex. CW1/2 and no specific mentioning of CC No.533218/2016 Page no.11 to 34 DPCC Vs M/s Vishal Megamart seal by which the material was seized as the seal was remained with our team member. That at the sealed envelop, they obtained the signatures of Vishal Mega Mart employees and they had given a copy of seizure memo to Vishal Mega Mart. That they obtained the receiving from the Vishal Mega Mart regarding supply of copy of seizure memo on the seizure memo itself and they have shown Mr. Nikhil Jain as employer/manager of the Vishal Mega Mart at the time of raid and they supplied the copy of seizure memo either to Mr. Nikhil Jain or Mr. Sharma. He denied that no employee with the surname of Sharma was not employed with the Vishal Mega Mart on that day. That Mr. Nikhil Jain and Mr. Sharma were wearing their I Card around the neck.
3.2.3. To a specific question, he stated that at about 5.30 pm, we entered in the Vishal Mega Mart to conduct raid and left the premises of Vishal Mega Mart at about 6.00 to 6.15 pm. That they conducted raid at BATA and Raymonds before conducting raid at Vishal Mega Mart and their official time hours are 9.30 am to 6.00 pm. That they deposited the sealed material alongwith seal, envelop and laak next day in their office as on 21.07.2009 when the team reached the office it was already closed and he does not remember who had kept the sealed material alongwith seal, envelop and laak for one night. That no handing over memo was prepared at the time of handing over the said material to one of the raiding team member and they have informed orally our higher officers regarding keeping the said material with one of our team member and not in writing. He denied that no mentioning in handwriting was done in seizure memo about what material had been seized from the premises. That they did not ask the public witness to join the raiding team as there is no such provision. That they had seized the material from BATA and Raymond also. That they did not offer their search to the employee/manager of CC No.533218/2016 Page no.12 to 34 DPCC Vs M/s Vishal Megamart Vishal Mega Mart before or after entering in Vishal Mega Mart and the material that we seized from BATA and Raymond was lying in the vehicle and they did not carry it in the Vishal Mega Mart. That Member secretary of DPCC was our reporting officer and the permissions of raid was given by the then Member Secretary of DPCC. That Member Secretary had issued a general order to conduct raid on any working day and the said order issued by Member Secretary is placed on record. That they informed day to day raiding procedure to their higher officials though the intimation in writing was not required as order has already been given by the higher officials. That they did not go to conduct raid on a particular premises as they left out to conduct raid randomly at Karol Bagh are and the distance between our office and Karol Bagh is about 8 to 10 kms. That they went for conducting raid by our official vehicle and driver of the vehicle made an entry of the Govt vehicle used in the raid in the log book. That he does not know whether the log book entry has been filed on record or not as he is not the complainant. That he does not remember the number of Govt vehicle as it is long back and also he does not remember the name of the driver as vehicle changed day to day as per requirement of the departmental officials. That at the spot of raid the seizure memo was signed by an employee namely Mr. Sharma in the presence of Mr. Nikhil Jain. Mr. Sharma was present near the packing counter and he does not remember the designation of Mr. Sharma. 3.2.4 On being confronted with his examination in chief wherein he had stated that he was informed by Mr. Vikas Sharma that Mr. Nikhil Jain was the day to day Incharge of the store, however, in the cross examination he has stated that Mr. Nikhil Jain was present at the time of raid, the witness has replied that neither I lied while giving my examination in chief nor today regarding Mr. Nikhil Jain and Mr. CC No.533218/2016 Page no.13 to 34 DPCC Vs M/s Vishal Megamart Sharma. CW2 stated that he does not remember whether the plastic bags which were seized were printed or not, however, it is mentioned in the seizure memo. That there is no specification of seal mentioned in the seizure memo. That after entering the Vishal Mega Mart we straight away went to the employee and inquired him about the material being used by them for packing or giving to carry to the customers. That the prohibited plastic carry bags which were recovered and sealed were eight to ten in numbers. That they did not ask the ID Card of any employees as they were wearing ID Card on their neck. He denied that we did not take ID Card of any employee nor filed the same on the record as we never went to conduct raid at Vishal Mega Mart. He also denied that no extra effort was made to recover further prohibited material as he had not gone for raid that day. That there were customers during the raid but they did not count and they did not recover any plastic bag from any customers during the raid but they were holding plastic bags. He denied that they asked for bribe from Mr. Vikes Sharma and on his refusal they falsely made a case against him. That he do not remember whether there was any CCTV camera in the Vishal Mega Mart. He denied that they did not take any CCTV footage during the raid as no such raid was ever conducted.
3.3 CW3 Sh. R. K. Sharma, deposed that he was working as Environmental Engineer in DPCC and pursuant to notification dt.07.01.2009 public notice was advertised in various newspapers and the copy of public notice is Mark A, the notification dt.07.01.2009 is ExCW1/1. The said notification duly authorised him to implement the provision of said notification and he alongwith Sh. M. I. Siddqui and Sh. Pankaj Kapil, Sr. EE alongwith Ms. Anchal Aggarwal and Ms. Shikha Gaur, Engineer trainee of DPCC visited the outlet of M/s Vishal CC No.533218/2016 Page no.14 to 34 DPCC Vs M/s Vishal Megamart Mega Mart situated at 10210, Padam Singh Road, Karol Bagh on 21.07.2009. That it was found that plastic bags were being used for selling the various consumer goods by the aforesaid outlet. That during the visit of the outlet, they met Sh. Vikas Sharma the representative of the outlet who informed Mr. Nikhil Jain, Manager is the incharge and the responsible person for conducting day to day affairs of the outlet. That accordingly the samples of the plastic bags were seized through a seizure memo ExCW1/2 dt.21.07.2009 which has been signed by him at point D and by Sh. M. I. Siddiqui at point C, Pakaj Kapil at point A and by Mr. Vikas Sharma at point B and accused were fully aware of the prohibition for using the plastic bags at their outlet therefore, they have willfully violated the notification dt.07.01.2009 and liable to be punished under the provisions of Environment Protection Act and the case property is already ExCW1/3(colly), which bears his signature at point E. 3.3.1. During his cross examination by other counsel, he stated that no entry was made prior to going for the inspection in the premises of the accused company. He voluntarily stated that as there is no such procedure. That on 21.07.2009, they inspected about 2-3 premises including the present premises and they searched Raymonds and Bata Showroom on Ajmal Khan road on that day and he again said, he does not remember whether it was a Bata showroom. That they were not searched before any raid of Vishal Mega Mart and they also not offered for any search. That they did not receive any information that Vishal Mega Mart is using plastic bags at the premises. He voluntarily stated that it was a general search. Approximately, he has no idea that how many showrooms are at Ajmal Khan road. That he stated that he does not know that on Ajmal Khan Road there are more than 50 showrooms.
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That he has not visited Ajmal Khan Road on 21.07.2009. That one trainee engineer was having the material for seizure. That he does not know which person out of the raiding team have taken permission to issue the seizure material. That as far as seized material is concerned, our team members have signed the same and he has signed on the seizure memo. That at the time of raid, there are about 5-6 persons at the spot and they requested public persons to join the proceedings but they refused. That the seized material was taken in possession at the instance of one of the employee of the Vishal Mega Mart and they had asked the employee i.e Vikas Sharma to bring the plastic bags and accordingly the said employee brought the plastic bags. 3.3.2. That they have not checked the I-card of the employee, however, one bag there on his shirt pocket(having its name). He denied that any employee in the name Vikas Sharma was working in Vishal Mega Mart on 21.07.2009. That they have not taken any ID of Sh. Vikas Sharma and they have not used any seal during the proceedings. That one paper bag, cello tape were used during the proceedings and no seal was used. That he does not remember to whom the seized material was handed over, however, the same was handed over to one Sh. Pankaj Kapil on 21.07.2009 as he was our senior team member. That they have not recovered any plastic bag from any of the customer and he does not remember exact size of the plastic bags, however, seized numbers of bags around 8-10. That they started the proceedings at around 4.30-5.00 p.m and left the premises around 5.30-6.00 p.m, other premises were searched before 4.30 p.m and plastic bags were also recovered from other searched premises as stated above and the said material was kept in our official vehicle. That no entry is required in our office for using any official vehicle for any official purpose/ any search as the vehicle is assigned to CC No.533218/2016 Page no.16 to 34 DPCC Vs M/s Vishal Megamart us and our official vehicle might be having the entry in log book with regard to search at Vishal Mega Mart. That they have not placed any said entry on the record, however, the said fact can be explained by the complainant. That he does not have any idea that how many bags were there. He denied that he never visited premises in question and no recovery was effected from the premises in question. That on 21.07.2009, he along with team members starting from his office, for conducting raid between 01.30-2.00 p.m. there is a general order of member secretary of the department for conducting raid, so no specific permission is required for conducting raid and though, they need to inform their senior officials in the case of leaving the office either for Personal official purpose during office hour, but so far as for conducting raid no permission is required. That no one was heading the raiding team, though, Mr. Pankaj Kapil was senior most the official amongst the senior raiding members. That they procured the prohibited samples of printed carry bags from the employee of the store and thereafter, they wrote the name of the company and concerned person available at the time of raid on that envelope. 3.3.3. That they packed the samples and seized the same in paper bag with cello tape in the presence of concerned officials. He voluntarily stated that they do not put seal on the seized material. That they take cross-signature of the concerned person of the company, on the envelope crossing the cello tape and thereafter, they fill the seizure memo in the duplicate and get the same signed by all the team members and witnesses along with concerned member of the company. That thereafter, they hand over one copy of the seizure memo to the concerned official of the company and keep one copy with them and besides the above, they do not carry out any other written formality. That he does not know when was the seizure memo along with the collected samples were submitted CC No.533218/2016 Page no.17 to 34 DPCC Vs M/s Vishal Megamart by the team in the office. He voluntarily stated that the seizure memo and collected samples were finally handed over to Mr. Pankaj kapil. That they straight away went to their office after the raid/inspection was conducted in the Ajmal Khan Road and he does not remember the registration number of vehicle which we used in inspection. That as he can recall, the entry in the log book would have been made by the senior of the raiding team Mr. Pankaj Kapil. That he does not remember as to how many employees were in the store during inspection, however, as he was informed that Mr. Vikas Sharma is the store in-charge, therefore, they met only Vikas Sharma who informed that Mr. Nikhil Jain is the store manager and was not available during the inspection. That they requested few customers to be witnesses to the seizure memo but no one agreed to be a witness and they did not seize any plastic bags from any customers. That he does not remember the exact colour of the printed material on the bag however, it was dark pink. That he does not remember whether there were more plastic bags or not besides the seized samples. That he does not know whether there were CCTV camera installed in the store or not. That they carried the envelopes, cello tape and seizure memos from the office and the envelopes and cellos tapes used in the seizing of the samples are not easily available as it is special one. That they had not prepared any inspection report of the said raid/inspection and only seizure memo is prepared while conducting the search of plastic bags.
3.3.4. That he does not remember as to whether there is any printing on the official envelope used by them in the inspection/raid or not. He denied that they did not seize any material and samples from the store of the accused. He also denied that no raid/inspection was conducted at the premises of the accused company or that they have made a false case CC No.533218/2016 Page no.18 to 34 DPCC Vs M/s Vishal Megamart against the accused person and had not seized any sample materials from the store. He denied that the seizure memo was prepared in the office of the complainant in order to falsely implicate the accused person.
3.4 CW4 Dr. A.K. Ambasht, Chief Vigilance Officer, Delhi Jal Board deposed that he is presently working as CVO, Delhi Jal Board and previously he was working as Member Secretary, DPCC. That he has filed the complaint Ex.CW4/A bearing my signature at point A and he has been authorized to file the present complaint by notification dated 07.01.09, copy of the same is Ex.CW4/B (OSR)(The same was objected to by the defence counsel.) 3.4.1. During his cross examination by Ld. counsel for accused no.2, CW4 deposed that he has no personal knowledge about the facts of this case and he has not appeared in this matter even once in the present case prior to today's appearance. That he has signed the present complaint Ex.CW4/A while sitting in his office and he has checked the facts stated in the complaint. That he has seen the seizure memo and no inspection report was prepared or produced before him for perusal before signing the complaint or thereafter. Witness stated that no inspection report was prepared in this matter, again said he is not sure. That there is no document to show that he was appointed as Member Secretary of the Committee of DPCC. Seizure memo was not prepared in his presence hence he cannot depose regarding its proof. That there is no other notification except Ex.CW4/B for the purposes of filing the complaint and inspection. He denied that he has not authorized any person from the committee to conduct the inspection. That he was called by the court in the present matter and he received a summon from the court and he has not produced the copy of summons which have been issued by court for CC No.533218/2016 Page no.19 to 34 DPCC Vs M/s Vishal Megamart my appearance. That he took over the charge of Chief Vigilance Officer, Delhi Jal Board on 15.03.11 and he has handed over the charge of Member Secretary, DPCC to Sh. Sandeep Mishra. That he had sent a letter to the present Member Secretary DPCC that since the complaint was filed in his official capacity someone from the office who knows his signature should be asked to identify the same before the court. That he is not sure whether in the present case any such authorization or exemption has been sought by the present Member Secretary. That he does not find any such letter in the present case. That he does not remember the diary number and date of the letter referred herein above. He denied that no such letter was ever written by him to the present Member Secretary. That he used to visit court to depose in DPCC matter and before deposition, he used to refresh his memory after seeing the file.
4. Thereafter, a charge u/s 15, 16 r/w 19 of Environment (Protection) Act, 1986 was framed against the accused no.1 & 2 to which they pleaded not guilty and claimed trial.
5. In post charge evidence, the prosecution examined CW-1 Sh. Pankaj Kapil, Additional Director, Engineering and CW-3 Sh. R. K. Sharma, Environmental Engineer.
5.1. CW1 Sh. Pankaj Kapil adopted his statement recorded in pre charge evidence, in post charge evidence.
5.1.1. During his cross examination, he stated that it is correct that the bags collected from the premises of accused No.1 were never sent to government laboratory for scientific analysis. He voluntarily stated that the same was not required as all kind of plastic bags were banned at the CC No.533218/2016 Page no.20 to 34 DPCC Vs M/s Vishal Megamart outlet of accused. He denied that his voluntary statement is wrong. That they had not collected the identity card of any of the employees of accused No.1 present at the time of raid / inspection. That they had not given any written notice to the public person (customers) present in the store at that time. That we had not requested Mr. Vikas Sharma (employee present at that time) to provide the CCTV footage of the inspection. That the seizure memo Ex. CW 1/2 does not bear the signature of accused No.2. He voluntarily stated that however, the seizure memo bears the name of Sh. Nikhil Jain along with his mobile number as provided by the representative of the outlet Sh. Vikas Sharma. That hand written information in the seizure memo is not in his hand writing. He voluntarily stated that the information in seizure memo was written by one of the members of the raiding team.
5.1.2. To a specific question, witness stated that he cannot say that at the time of inspection / raid, the accused No.2 was not present in the outlet because he might be present but he would have not come forward. That he did not verify the designation of Mr. Vikas Sharma. He voluntarily stated that Mr. Vikas Sharma told that Mr. Nikhil Jain is the Manager of the store, who is responsible for day to day work of the outlet. That he has not verified from other source as to whether accused No.2 was the Manager of the store at the relevant time. That he had not sought or collected any document reflecting that the accused No.2 was responsible for day to day affairs of the outlet. He denied that he has falsely implicated the accused No.2 in the present case or that he has falsely implicated the accused No.2 for the purpose of saving another employee Mr. Vikas Sharma who was the Manager at the relevant time. 5.1.3. During his cross examination on behalf of accused no.1, he stated that Annexure C to the complaint (running from page No.11 to 17) are the CC No.533218/2016 Page no.21 to 34 DPCC Vs M/s Vishal Megamart documents regarding the minutes dated 09.03.2009 circulated by Mr. B.M.S. Reddy vide No.DPCC/CMC/PB/2003 11455-11468 dated 09.03.2009, which is exhibited as Ex. CW 1/A1/1. That the witness has been shown this document who has confirmed the authenticity of the same. That in Para 5 of the complaint there is a mentioning of such minutes vide which the jurisdiction of various authorities was de- marcated. He voluntarily stated that Specific jurisdiction was to be de- marcated but same was not de-marcated finally vide meeting dated 09.03.2009 and final de-marcating jurisdiction was publicized through public notice which he has exhibited in my pre-charge evidence. To a specific question, witness deposed that it is a part of the deliberations of the minutes of the meeting in Para 2 of Annexure-2 of the minutes, it was decided that which territory shall be de-marcated under which authority. That as per notification his area of operation was Central District. On being confronted with document Ex. CW 1/A1/1, witness stated that as per this notification our area operation was only hospitals with 100 or more beds. That after perusal of Ex. CW 1/A1/1 witness has stated that this is not the notification and in fact this is the draft of public notice. That the public notice relied upon by him for the purpose of his jurisdiction is Mark A already on record.
5.2 During his cross examination in post charge evidence, CW2 stated that plastic bags which were seized were being used in the grocery store inside the Vishal Mega Mart and the bags were not seized from any customer. He voluntarily stated that they have seen plastic bags in the hands of the customers. That they have mentioned the type of bags and numbers also in the seizure memo.
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5.2.1. On being confronted with court file, CW2 stated that the quantity and type of bags are not mentioned in the handwriting. He voluntarily stated that the same is mentioned in typed format. That the proforma was already available with them. That they have not requested any nearby shopkeeper to become a witness. That he does not remember in whose possession the pulanda remained after the raid. He voluntarily stated that it was in possession of the team. That the pulanda was deposited in the office in the evening and he does not remember whether any entry in any register was made regarding the pulanda. That plastic bag was having the logo of Vishal Mega Mart. During the cross examination of CW2, the pulanda was opened and plastic bags were exhibited as Ex.P-1 (collectively). That the complete address of Padam Singh Road Branch is not mentioned on the polythene bags and the bags were seized from the counter and not from any customer. That Inspection report was not prepared at the spot or in the office. He voluntarily stated that only the seizure memo was prepared. He denied that no raid was conducted and no articles were seized. That the plastic bags were yet to be used. That the copy of ID cards of the employees of the accused No.1 were not taken. He denied that there was no employee by the name of Nikhil Jain for accused no.1 at the relevant time. That usually inspection reports were prepared. He denied that inspection report was not prepared as there were no raid or inspection of any kind conducted at the premises of the accused No. 1 and no inquiry was conducted from the printer/manufacturer of the polythene bags Ex. P-1 i.e. M/s. New Sales Corporation, Haider Pur, Delhi. That Bio Degradable products are eco- friendly and those bags are not prohibited and it is printed on the bag that it is eco-friendly bio degradable. That they have not sent the bags in question to any Lab to verify whether same are bio degradable or not.
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That the number of microns and type of raw material used categorizes prohibited and non-prohibited bags. That it requires lab test to identify the number of microns. He denied that since no raid/inspection was conducted on the given date at the site of the accused no.1, hence he had not sent the alleged prohibited bags for chemical analysis. That till filing of the complaint the seized articles remained in our office in lock and key and he does not remember when the case property was produced first time in the court. He voluntarily stated that the same remained with the legal department. That no entry of the case property was made before its production in the court. That the address and date and time on the envelope Ex.CW-1/3 are written in different pen and handwritings. He voluntarily stated that both are written by the members of the team only. That He does not know who is considered to be the day to day In-Charge of any company as it is a legal issue. That they did not collect any document which could reflect that Mr. Nikhil Jain was the day to day In- Charge of the company. He voluntarily stated that Nikhil Jain was wearing an identity card which revealed that he was a manager of Vishal Mega Mart at the relevant time. That they have not seized any record of the accused No. 1 showing employment of accused No. 2 as Manager/Store Manager.
5.3 CW3 Sh. R. K. Sharma, Environmental Engineer, DPCC, adopted his statement recorded in pre charge evidence in post charge evidence. 5.3.1. During his cross examination, he stated that no written notice was given to the customers present in the store for participating in the inspection / seizure process and he voluntarily stated that they were orally requested. That no written notice was given to the store manager prior for inspection of the premises as there is no such procedure. That they have CC No.533218/2016 Page no.24 to 34 DPCC Vs M/s Vishal Megamart not collected any document showing that the accused no.2 is the incharge of day to day affairs of the company, however, they were told by the Vikas Sharma the employee of the store. That he did not collect any document which shows that Vikas Sharma was present there as well as to the effect that he was an employee of the store. He voluntarily stated that Vikas Sharma was wearing a batch having his name around the neck. That no written notice was given to the employees of the store for the personal search of the members of the raiding team and the seized polythene bags were not sent to any government approved laboratory for ascertaining as to whether the same were prohibited or not. He voluntarily stated that no test is required as all kinds of polythene bags were prohibited as per the notification and moreover, the laboratory test is only required for assessing the thickness of the polythene bags. 5.3.2. To a specific question, witness stated that para 2 of the notification Ex. CW-1/1 dated 07.01.2009 at point A to B wherein it is mentioned that all kinds of plastic bags shall be forbidden and seized polythene bags are not required to be tested through laboratory in terms of Section 12 of the Environmental Protection Act. That no inspection report was prepared on the relevant date, however, a seizure memo Ex. CW-1/2 was prepared on which Sh. Vikas Sharma, the employee of the store had signed at point B. He denied that the inspection team had deliberately not prepared the inspection report as no such inspection was conducted on that day. He denied that they had made a false case against the accused persons solely to extort money.
5.3.3. During his cross examination by Ld. counsel for accused no.1, he stated that the notification Ex. CW-1/1 has not mentioned the definition as to what constitutes Market Place. That no photographs/videography was done on the date of inspection.
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5.4. Statement of accused no.1 & 2 were recorded u/s 313 read with section 281 Cr.P.C 19.02.2024 & 20.02.2024. In his statement, accused no.1 & 2 denied all the allegations and stated that they have been falsely implicated in this case. Accused no.1 stated that he wishes to lead defence evidence, however, accused no.2 does not wish to lead any defence evidence.
6. I have heard the arguments and perused the record.
7. It is submitted by Ld. Counsel for complainant that the Hon'ble Lieutenant Governor of National Capital Territory of Delhi after exercising the powers conferred by Section 5 of the Environment (Protection) Act, 1986 read with notification dt.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, titled "Vinod Kumar Jain and Others versus Union of India and Others" issued directions against the use, sale & storage of all kinds of plastic bags in respect of the places as mentioned in the notification, on 07.01.2009.
The notification dated 07.01.2009 provides the following:
"1. That the use, sale & 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 Bio Medical Waste (Management & Handling) Rules, 1998.
c. All restaurants and eating places having seating capacity of more than 50 seats.
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.
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h. All retail and wholesale outlets of Branded chain of outlets selling different consumer products including fruits and vegetables.
2. That 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.
It is submitted that in compliance of abovesaid, a meeting was called on 09.03.2009 in the chamber of the then Member Secretary, DPCC with respect to implementation of notification dt.07.01.2009. It is submitted that one of the implementing officer of DPCC, as per notification dt.07.01.2009 took samples of plastic bag from the premises of accused no.1 on 21.07.2009. It is submitted that complainant has examined its four witnesses to prove the notification and the process of obtaining sample during the raid at the premises of accused no.1. It is submitted that complainant has examined CW1 Pankaj Kapil, CW2 M. I. Siddiqui, CW3 R. K. Sharma & CW4 Dr. A. K. Ambasht and has proved documents ExCW1/1 the public notification dt.07.01.2009, ExCW1/2 the samples of the plastic bags were seized through a seizure memo, ExCW1/3 the case property, ExCW1/A1/1 the documents regarding the minutes dated 09.03.2009 circulated by Mr. B. M. S. Reddy vide no.DPCC/CMC/PB/2003 11455-11468, ExCW4/A the complaint and ExCW4/B(OSR) copy of the notification dated 07.01.2009. It is submitted that by the testimony of above said witnesses, the complainant has proved beyond reasonable doubt the notification vide which use, sale and storage of all kind of plastic bags in respect of places mentioned in notification, the fact of raid by the raid team at the premises of accused no.1 and seizure of plastic bags at the premises of accused no.1. It is submitted that accused are liable to be convicted and punished accordingly for violation of notification dt.07.01.2009 and section 15/16 CC No.533218/2016 Page no.27 to 34 DPCC Vs M/s Vishal Megamart r/w section 19 of Environment (Protection) Act, 1986. The complainant has relied on following case laws to support its case:
1. Nagarajan Krishna Murthy Dire. Geo. Pvt. Ltd. Vs State of U. P. Application u/s 482 No.67 of 2023 decided on 27.01.2023
2. Union of India and Ors vs. Vartak Labour Union, Civil Appeal Nos. 2129-2031 of 2004 decided on 04.03.2011.
8. Ld. Counsel for accused persons have vehemently submitted that both the accused are required to be acquitted as no raid has been conducted by the members of committee at the premises of accused no.1. It is submitted that it can be noted from the evidence and material placed on record during trial that there are inconsistencies in the version of the complainant witnesses and the procedure established by law has not been admittedly followed by the alleged members of raid team. Specifically, it is submitted that the members of raid team were not empowered by notification ExCW1/A-1/1 to conduct raid at the premises of accused no.1. Further it is submitted that the alleged plastic bags allegedly belonging to accused no.1 were not sealed as per the procedure provided by law. Further, it is submitted that Nikhil Jain has been made accused no.2 on the alleged version of some Vishal Sharma without knowing the role and authority of Vishal Sharma as well as Nikhil Jain. It is further submitted that there is inconsistency in the version of complainant witnesses with regard to availability of Nikhil Jain at the spot at the time of raid. The accused persons have relied on following case laws to support its case.
1. S. P. Shenbagamoorthy vs Dr. Chenna Reddy, The Governor, 1995 A I H C - 321 CC No.533218/2016 Page no.28 to 34 DPCC Vs M/s Vishal Megamart
2. National Small Industries Corp. Ltd. Vs Harmeet Singh Paintal & Anr. Crl. Appeal No.320-336 of 2010 8.1 From the perusal of record and consideration of arguments, it is noticed that the accused persons have challenged the happening / non happening of raid proceedings and its legality. To prove the authority of members of raid team to conduct the raid, the complainant has relied on copy of a public notice Mark A showing that at serial (f)(All Shopping Malls) Engineers of DPCC and at serial (g)(All shops in main market and local shopping centres) Engineers of DPCC are authorized to inspect the premises for implementation of the order in issue. Surprisingly, document Mark A was not produced in original in the court. No newspaper or computer generated print out of any website has been produced before the court in which the public notice Mark A was published. The Mark A on the face of it, seem to be a mere sample of advertisement as it also mentions the size of the said notice at the bottom, from which an inference can be drawn that it was a sample given to the printer to print. From document Mark A, it cannot be believed that it was actual and final public notice or was a mere sample for proof reading. As against it, during the cross examination of complainant's witness Sh. Pankaj Kapil, on behalf of accused no.1, annexure C ExCW1/A-1/1 was shown which he had admitted to be correct, showing that in shopping mall, licencing department in NDMC and MCD only and in all shops in main market and local shopping centres, SDMs (in their respective jurisdictions), Assistant Commissioner, Muncipal Corporation of Delhi, only were authorized to conduct the inspection. Minutes of meeting forming annexure -II of annexure -C clearly mentions in para no.2 that as per deliberations through a meeting held on 10.02.2009 and 09.03.2009 , CC No.533218/2016 Page no.29 to 34 DPCC Vs M/s Vishal Megamart it was decided that the jurisdiction of authorised officers for implementing the orders, shall be as follows(as mentioned in the table). By any strech of imagination and construction of annexure-C (annexure
-II is part of annexure-C), it cannot be construed or believed that table provided in annexure-II was not final or conclusive. The words used in annexure - II are plain and simple showing that table mentioned in annexure - II finally described the jurisdiction of authorised officers for implementing the orders. The complainant has not placed on record any minutes of meeting or any order issued by competent authority / Member Secretary DPCC changing the contents of the table given in annexure - II and finally deciding the authority of officers as given in document Mark A. Though the complainant has relied on decision of Hob'ble Apex Court in Union of India vs Vartak Labour Union(Supra) to assert its point that internal nothings are not meant for outside exposure and noting in the file culminate into executable orders, effecting the rights of parties, only when it reaches the final decision making authority in the department, gets his approval and the final order is communicated to the person concerned, however, complainant has to prove as per the rules of evidence, the final order authorizing different officers to inspect particular place. Document Mark-A has not been proved properly and even otherwise, Mark A does not seem to be part of any newspaper. No witness from the department has been called to prove that this notification was given to different agencies for publishing alongwith proof of payment for such publication nor any witness has been called from the office of any newspaper or other such agencies to prove that the particular government agency had given a public notice Mark - A for publication in their respective newspaper.
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8.2. Further, it is found surprising that on the suggestion / mere asking of one Mr. Vikas Sharma, the Inspecting team has allegedly conducted its proceedings against accused no.2. It is surprising that neither any identity card issued by government authority or by the accused no.1 company to Mr. Vikas Sharma has been collected by the raiding team so as to ascertain his identity, authority and role in accused no.1 company. Surprisingly Mr. Vikas Sharma was neither cited as witness to prove the authenticity and proprietary of the alleged inspection proceeding nor he had been made an accused as CW3 Mr. R. K. Sharma had testified during his cross examination that they were informed that Mr. Vikas Sharma is the Store Incharge. Neither any document / evidence was collected from the spot regarding role of Mr. Vikas Sharma and Mr. Nikhil Jain in managing the day to day affairs of accused no.1 company nor the accused no.1 had been given any notice to provide the details of the person responsible for managing day to day affairs of the accused no.1.
8.3 Further, there is substance in the submissions of Ld. Defence counsels that the alleged seized plastic bags were not seized either as per the procedure of the Environment (Protection) Act, 1986, nor as per the provisions of Cr.P.C. It is submitted that CW2 (M. I. Siddiqui) during cross examination in pre charge evidence has stated that he had officially received an envelop, lakh, match box and candle to seal the material but surprisingly CW3 (R. K. Sharma) in his cross examination during pre charge evidence has stated that they packed the samples and seized the same in paper bag with cello tape in the presence of concerned officials and that they had cross signatures of the concerned person of the company on the envelop crossing the cello tape. There is material in the submissions that when the lakh and match box as well as candles were CC No.533218/2016 Page no.31 to 34 DPCC Vs M/s Vishal Megamart got issued from the office, there could not be any logic in not using the same in the seizure of sample plastic bags and use of mere cello tape for the said purpose. As far as the applicability of section 11 of Environment (Protection) Act, 1986 is concerned, it cannot be said that the plastic bags were required to be seized strictly as per section 11 of the Act as it talks about the procedure of take samples of air, water, soil or other substance. As 'other substance' how so ever liberally construed, does not seem to incorporate a plastic bag in it. However, in this regard provision of section 100 of search was required to be complied by the members of inspection team, which was apparently not followed by the inspection team as neither any signature of any independent witnesses were obtained nor any authorized person / officer of accused no.1 was allowed to attend the search. Mr. Vikas Sharma cannot be stated to be authorized person by accused no.1 to attend search on behalf of accused no.1 as the complainant has not placed on record the I-Card of Mr. Vikas Sharma nor any authorization issued on behalf of accused no.1 authorizing Mr. Vikas Sharma to attend the search on behalf of accused no.1. The court even could not find any reason or logic for not seizing all the plastic bags found at the premises and of seizing only eight plastic bags. As far as the submissions of not sending the bags for chemical examination, advanced on behalf of accused is concerned, no material is found in the same as all type of plastic bags had been banned by the concerned gazette notification.
8.4 Further, the complainant could not properly establish that Mr. Nikil Jain was manager of accused no.1 and importantly was responsible for day to day affair and management of accused no.1. In fact, there is inconsistency in the testimonies given by the complainant witnesses with CC No.533218/2016 Page no.32 to 34 DPCC Vs M/s Vishal Megamart regard to presence / absence of Mr. Nikhil Jain. CW1 Mr. Pankaj Kapil has stated during his cross examination that he cannot say whether accused no.2 was not present at the time of raid in the outlet because he might have been present but he might not have come forward. CW2 Mr. M. I. Siddique had admitted it to be correct that they did not collect any document which could reflect that Mr. Nikhil Jain was day to day Incharge of the company. CW2 Mr. Siddique had volunteered that Mr. Nikhil Jain was wearing an I-Card which reveal that he was manager of Vishal Megamart at the relevant time(from which it can be inferred that Mr. Nikhil Jain was present at the time of raid.). Further, CW3 Mr. R. K. Sharma has stated in his cross examination that he was informed by Mr. Vikas Sharma that Mr. Nikhil Jain is the store manager and who was not available during the inspection. The three inconsistent version of the above said three witnessed examined by complainant raises a serious doubt on the very existence of inspection allegedly conducted by the members of inspection team. Even if the fact of presence / absence of Mr. Nikhil Jain is to be ignored for a while, the proceeding against Mr.Nikhil Jain i.e. accused no.2 has been initiated on the version of one Mr. Vikas Sharma, who has not been examined even as a witness. In such a manner, Mr. Nikhil Jain seem to have been made an accused on hearsay evidence.
9. On the basis of above said discussion, it is found that inspecting team was not authorized by the notification of member secretary to conduct the search at the premises of accused no.1, there are inconsistent versions of complainant witnesses with regard to the presence / absence of Mr. Nikhil Jain at the time of inspection, witnesses have no knowledge about the vehicle used and driver of the vehicle during the inspection, no CC No.533218/2016 Page no.33 to 34 DPCC Vs M/s Vishal Megamart log book regarding use of official vehicle has been placed on record, no customer or other independent person has been made witness, all alleged plastic bags were not seized during the inspection, the alleged 8 plastic bags were seized however, proper procedure for seizure was not followed and neither any independent witness nor Mr. Vikas Sharma was not called in evidence and no role / authority / duty of Mr. Vikas Sharma and Mr. Nikhil Jain was ascertained qua the functioning of accused no.1 either independently or by giving notice to accused no.1 itself. All the above said findings give weightage to the submissions of Ld. Defence Counsel that the alleged inspection was never conducted by the members of the alleged team. Even if it is believed that the alleged inspection was conducted, the same was not conducted by the team authorized by the competent authority and due procedure for inspection and seizure was not followed, as a result of which neither seized material could be proved nor the liability of accused persons could be proved beyond reasonable doubt.
10. In view of abovesaid discussion, both the accused persons i.e. accused no.1 Vishal Megamart and accused no.2 Nikhil Jain are acquitted. The bail bonds, if any furnished by accused persons at the time of commencement of trail stands cancelled. Surety, if any stands discharged. Documents, if any shall be returned to its rightful owner as per rules. Endorsement, if any stands cancelled.
Announced in the open court on this 18th April, 2024 MAYANK MITTAL ACMM (Spl. Acts), CENTRAL TIS HAZARI COURTS, DELHI CC No.533218/2016 Page no.34 to 34