Delhi District Court
Criminal Appeal No.: 112/17 vs Delhi Pollution Control Committee on 21 November, 2017
:1:
IN THE COURT OF SH. SANJAY KUMAR AGGARWAL
SPECIAL JUDGE03: CBI (PC ACT): DELHI.
Criminal Appeal No.: 112/17
Vikash Bansal
Partner M/s Haryana Paneer Bhandar
169, Tilak Bazar, Gali Abdul Hakim
Delhi110006.
... Appellant
Versus
Delhi Pollution Control Committee
Through Sh. Shyam Sunder
Environment Engineer
4th Floor, ISBT
Delhi110006.
... Respondent
CC No.: 535235/16 Delhi Pollution Control Committee Vs M/s Haryana Paneer Bhandar & Ors.
J U D G M E N T Vide this order, I shall dispose of an appeal filed against the judgment dt. 20.04.2017 as well as order on sentence dt. 25.04.2017 (hereinafter called the impugned judgment and impugned order on sentence) vide which the appellant was convicted and sentenced for the offences u/s 24 r/w Section 43; u/s 26 r/w Section 25 r/w Section 44 of Water (Prevention & Control of Pollution) Act, 1974 (hereinafter called 'Act 1974' for brevity).
Vikash Bansal vs DPCC :2:
2. The facts relevant for the decision of the present appeal are that a complaint was filed by one Sh. Shyam Sunder, Junior Environment Engineer on behalf of Delhi Pollution Control Committee (hereinafter called 'DPCC') against the partnership firm M/s Haryana Paneer Bhandar of which the appellant Vikash Bansal and one Jagdish Prasad (sine expired) were the partners. It has been mentioned in the complaint that on 05.06.2000, the Vigilance Squad constituted by the Government of NCT of Delhi consisting of team of SDM (Environment) and Engineers of DPCC carried out the inspection of the industrial unit operation in the name and style of M/s Haryana Paneer Bhandar situated at 169, Tilak Bazar, Gali Abdul Hakim, Delhi and found that the appellant and his partner were the occupiers of the said industrial unit. After the inspection by the team, the following remarks were made in the inspection report:
1. The unit is found in operation.
2. No treatment facility for treatment of the trade effluent generated during the washing process is seen.
3. Entire trade effluent generated during the washing process of sweets/namkeens preparation moulds/containers/utensils etc. from floor washing are being discharged by the unit without treatment into the public sewer.
Vikash Bansal vs DPCC :3:
3. It has been alleged that while discharging the trade effluent into the drain, the appellant was causing severe pollution as he was running a workshop manufacturing of sweets/namkeen and discharging trade effluent without any treatment facilities and without any consent as required under the Act, 1974. Prayer therein was made to punish the respondents for the offences u/s 24/25/26/33A r/w Section 41/42/43/44 & 49 of the Act, 1974.
4. Pursuant to filing of complaint, statement of CW1 Sh. Shyam Sunder, EE from DPCC and CW2 Sh. Ajay Chagti the then SDM were recorded. Ld. ACMMDelhi was pleased to pass the order for framing of charges u/s 24/25 r/w Section 43/44 of the Act, 1974 besides provisions of Section 26 of the Act 1974 to which the appellant did not plead guilty and claimed trial.
5. In order to substantiate its claim, the prosecution examined two witnesses as PW1 Sh. Shyam Sunder and PW2 Sh. Ajay Chagti before the court of Ld. ACMM. Both these witnesses adopted their earlier examination recorded as (CW1 & CW2) and thereafter were crossexamined at length by the Ld. Defence Counsel. The appellant also lead his evidence by examining himself in the docket.
6. After the completion of the prosecution evidence, the Vikash Bansal vs DPCC :4: appellant was also examined u/s 313 CrPC.
7. The Ld. ACMM vide impugned judgment convicted the appellant for the offence u/s 24 r/w Section 43; u/s 26 r/w Section 25 r/w Section 44 of the Act, 1974 and sentenced him to undergo simple imprisonment for three years and a fine of Rs. One lac for the offence u/s 24 punishable u/s 43 the Act, 1974 and further sentenced to undergo simple imprisonment for three years and a fine of Rs. One lac for the offence u/s 26 r/w Section 25 punishable u/s 44 of the Act, 1974. In default of payment of fine, the appellant was ordered to undergo simple imprisonment for one month.
8. This appeal has been filed by the convict/appellant on the grounds that the impugned judgment and order on sentence suffer from illegality and that the provisions of Sections 24/25/26 of the Act, 1974 has not been appreciated in its true and correct spirit by Ld. ACMM. Ld. Counsel for the appellant highlighted the grounds of appeal with arguments that the inspection carried on by the inspection team is totally illegal and against the canons of law and the complaint filed before Ld. ACMM is completely vague, that no evidence was brought on record to establish that in fact the appellant was engaged in polluting the stream. Ld. Counsel also elaborated the standards issued by the DPCC dt. 21.06.2000 and stated that when the Vikash Bansal vs DPCC :5: standards itself were issued on 21.06.2000 then how the given offence be committed on 05.06.2000. It was further elaborated by Ld. Counsel that as per Section 25 of the Act 1974, though it has been mentioned that no person shall without the previous consent of the State Board establish or take any steps to establish any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, which is likely to discharge sewage or trade effluent into a stream but simultaneously he has brought to light the provisions of sub section 5 of Section 25 of Act 1974 which states that where without the consent of the State Board any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, is established, or any steps for such establishment have been taken or a new or altered outlet is brought into use for the discharge of sewage or a new discharge of sewage is made, the State Board may serve on the person who has established or taken steps to establish any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, or using the outlet, or making the discharge, as the case may be, a notice imposing any such conditions as it might have imposed on an application for its consent in respect of such establishment, such outlet or discharge. It was vehemently argued by Ld. Counsel for the appellant that in case the State Government was going to take action against the appellant, it was the mandatory duty to serve a notice u/s 25(5) of the Act Vikash Bansal vs DPCC :6: 1974 rather than directly prosecuting the appellant.
9. The Ld. Counsel for the appellant further vehemently argued that the provisions of Section 25 of the Act 1974 are not attracted as the unit i.e. the Haryana Paneer Bhandar run by the appellant does not fall within the category within its definition as the unit did not discharge sewage or trade effluent into a stream or well or sewer or on land. It was explained that when the unit of the appellant does not fall within the category as prescribed u/s 25 of the Act, 1974 how could the appellant be prosecuted and convicted by the court of Ld. ACMM.
10. Ld. Counsel for the respondent on the other hand argued that the ld. ACMM has rightly convicted the appellant for the offences u/s 24 & 25 of the Act, 1974 as the unit run by the appellant was discharging trade effluent. He stated that the contents as contained in Section 2(k) of the Act, 1974 clearly brings the case of the appellants within the meaning of "trade effluent" in order to attract the provision of Section 25 of the Act, 1974 as even the solid substance discharged from the premises used for carrying on any operation/industry other than domestic sewage is a trade effluent. He has also drawn the attention of this court to the judgment of Hon'ble Supreme Court in MC Mehta Vs Union of India (2015) 12 SCC 764 wherein it finds mention that the food and dairy industry is Vikash Bansal vs DPCC :7: termed to be highly polluting industry unit vide order 05.02.2014 passed by Central Pollution Control Board, as contained in para 11 of the said judgment. Ld. Counsel also claimed that the Hon'ble Supreme Court is highly concerned with the Maili Yamuna and for that reason cognizance was taken by the Hon'ble Supreme Court suo moto on the basis of news item in Hindustan Times way back and for which the pollution department have already published the notices to all the industries.
11. Ld. Counsel for respondent refuted the arguments of Ld. Counsel for the appellant but regarding conviction u/s 26 of the Act 1974, Ld. Counsel for the respondent fairly conceded that the said section 26 of the Act, 1974 won't be applicable against the appellant as it calls for action against the offenders who are violating the conditions of the Act 1974 before its commencement and had not applied for consent within such time as prescribed. It has also been further fairly conceded by Ld. Counsel for the respondent that the respondent could not bring any evidence on record which may highlight the time as to since when establishment is running.
12. Ld. Counsel for the respondent further argued that it is not mandatory that the prior notice should have been given to the appellant before inspection. It was further stressed that Vikash Bansal vs DPCC :8: the instructions/education was being given by the Government time and again in order to spread the public awareness so that the people may follow the legislative mandate under this Act, 1974 or laws of superior courts. It was further stated that the Ld. ACMM has rightly convicted and sentenced the appellant and the impugned judgment and order on sentence does not suffer from any illegality or infirmity and was passed in terms of the law laid down therein under the Act 1974.
13. Ld. Counsel for the appellant while rebutting the arguments of respondent referred to the definition of 'trade effluent' as contained in Section 2(k) of Act 1974 and submitted that the Ld. Counsel for the respondent is trying to restrict its meaning only to the contents of the said Section 2(k) of the Act, 1974 and has forgotten to mention Section 17(m) of the Act, 1974 wherein it has been mentioned that the State Board shall lay down effluent standards to be complied with by persons and may also modify or annual effluent standards. He argued that though standards have been laid down by the Central Pollution control Board within the meaning of Section 17(m) of the Act, 1974 but for want of the laboratory report, the case of the prosecution does not come within the definition of Section 24 & 25 of the Act, 1974 against the appellant. He has also referred to the entry no. 56 of schedule 1 of Environment Protection Rules, 1986 which prescribes the parameters for effluents in a Vikash Bansal vs DPCC :9: dairy industry. He has also highlighted that there is a gap of around 21 days between the alleged commission of offence and filing of complaint. Ld. Counsel for the appellant has also relied upon the notification of Delhi Pollution Control Board dt. 07.04.1988 wherein parameters have been laid down under the Act, 1974 for following standards for compliance by small scale industries.
14. I have heard the parties at length and have perused the material available on record.
15. Before adverting to the prosecution and defence evidence which was lead before the court of Ld. ACMM by the rival parties, it would be appropriate to reproduce the relevant provisions of Sections 2(k), 17, 23, 24, 25 & 26 of the Act 1974 which are as under:
S. 2(k) "trade effluent" includes any liquid, gaseous or solid substance which is discharged from any premises used for carrying on any ¹[industry, operation or process, or treatment and disposal system], other than domestic sewage.
"S.17. Functions of State Board (1) Subject to the provisions of this Act, the functions of a Vikash Bansal vs DPCC :10: State Board shall be
(m) to lay down effluent standards to be complied with by persons while causing discharge of sewage or sullage or both and to lay down, modify or annual effluent standards for the sewage and trade effluents.
S.23. Power of entry and inspection (1) Subject to the provisions of this section, any person empowered by a State Board in this behalf shall have a right at any time to enter, with such assistance as he considers necessary, any place
(a) for the purpose of performing any of the functions of the Board entrusted to him;
(b) for the purpose of determining whether and if so in what manner, any such functions are to be performed or whether any provisions of this Act or the rules made thereunder or any notice, order, direction or authorisation served, made, given, or granted under this Act is being or has been complied with;
(c) for the purpose of examining any plant, record, register, document or any other Vikash Bansal vs DPCC :11: material object or for conducting a search of any place in which he has reason to believe that an offence under this Act or the rules made thereunder has been or is being or is about to be committed and for seizing any such plant, record, register, document or other material object, if he has reason to believe that it may furnish evidence of the commission of an offence punishable under this Act or the rules made thereunder.
Provided that the right to enter under this subsection for the inspection of a well shall be exercised only at reasonable hours in a case where such well is situated in any premises used for residential purposes and the water thereof is used exclusively for domestic purposes.
"S.24. Prohibition on use of stream or well for disposal of polluting matter, etc.(1) Subject to the provisions of this Section,
(a) no person shall knowingly cause or permit any poisonous, noxious or polluting matter determined in accordance with such standards as may be laid down by the State Board to enter (whether directly or indirectly)into any [stream or well or sewer or on land]; or
(b) no person shall knowingly cause or permit to Vikash Bansal vs DPCC :12: enter into any stream any other matter which may tend, either directly or in combination with similar matters, to impede the proper flow or the water of the stream in a manner leading or likely to lead to a substantial aggravation of pollution due to other causes or of its consequences.
S.25. Restrictions on new outlets and new discharges (1) Subject to the provisions of this section, no person shall, without the previous consent of the State Board
(a) establish or take any steps to establish any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, which is likely to discharge sewage or trade effluent into a stream or well or sewer or on land (such discharge being hereafter in this section referred to as discharge of sewage);
(b) bring into use any new or altered outlet for the discharge of sewage; or
(c) begin to make any new discharge of sewage:
Provided that a person in the process of taking any steps to establish any industry, operation or process immediately before commencement of the Water Vikash Bansal vs DPCC :13: (Prevention and Control of Pollution) Amendment Act, 1988, for which no consent was necessary prior to such commencement, may continue to do so for a period of three months from 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 aid period of three months, till the disposal of such application.
S. 25(5) Where, without the consent of the State Board, any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, is established, or any steps for such establishment have been taken or a new or altered outlet is brought into use for the discharge of sewage or a new discharge of sewage is made, the State Board may serve on the person who has established or taken steps to establish any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, or using the outlet, or making the discharge, as the case may be, a notice imposing any such conditions as it might have imposed on an application for its consent in respect of such establishment, such outlet or discharge.
Vikash Bansal vs DPCC :14: S. 26. Provision regarding existing discharge of sewage or trade effluent Where immediately before the commencement of this Act any person was discharging any sewage or trade effluent into a ¹[stream or well or sewer or on land], the provisions of Section 25 shall, so far as may be, apply in relation to such person as they apply in relation to the person referred to in that section subject to the modification that the application for consent to be made under sub section (2) of that section ²[shall be made on or before such date as may be specified by the State Government by notification in this behalf in the Official Gazette].
16. The respondent could not bring any evidence with respect to the fact as to since when the unit was in operation. This fact has also been conceded by Ld. Counsel for respondent during arguments. For want of date of establishment, the conviction and sentence of appellant vide impugned judgment and impugned order on sentence respectively u/s 26 of the Act, 1974 can't be sustained and thus is set aside.
17. From the apparent reading of Section 25(1)(a) of the Act 1974, it is clear that the main focus of legislative mandate is to prohibit a person to establish any industry, operation or Vikash Bansal vs DPCC :15: process or any treatment or disposal system which is likely to discharge sewage or trade effluent into a stream without previous consent of State Board. Accordingly, the consent of the State Government is necessary before running such establishment. Hence in this case, the report Ex.CW1/1 suggest that industry was found running at the site. It was established without consent of Board as no material could be brought by defence that it had obtained consent. Burden of proof to prove that it had consent to establish was upon defence as it was specifically within its knowledge. In his crossexamination, the DW1/appellant/Sh. Vikas Bansal has termed it to be correct that on the day of inspection i.e. on 05.06.2000, unit was not having any consent from DPCC for establishing, operating or maintaining the workshop. It was also termed to be correct by DW1 that entire area in his possession was being used for kitchen/manufacturing/storing of raw material and the kitchen was connected to the municipal sewer line.
18. Now question is whether unit belonging to appellant which was not having consent of government was discharging the 'sewage' or 'trade effluent' into the stream. To find answer for the same it is required to advert as to whether the discharge from the unit came under the definition of sewage/trade effluent, the conditions as prescribed u/s 25 of the Act. As per section 2(k) of the Act 1974, the trade effluent includes any Vikash Bansal vs DPCC :16: liquid, gaseous or solid substance which is discharged from any premises, but simultaneously Section 17 (m) puts an obligation on the Board to lay down standards for sewage and trade effluents. In this case, though such standards have been laid down as finds mentioned in Environment (Protection) Act, 1986 but the prosecution has failed to file any laboratory report suggesting that in fact the unit of appellant was violating the standards laid down while discharging 'trade effluent' in the stream within definition of Section 2(k) and 17(m) and that trade effluent did not confirm to parameters laid down by law. The laboratory report was required to be filed in order to ascertain as to whether the trade effluent allegedly discharged by unit of appellant fell into category within the meaning of Section 2(k) and 17(m) of Act, 1974.
19. Further, section 25 of Act 1974 was primarily concerned with obtaining a consent for setting up an industry of nature as is likely to discharge trade effluent. It does not prescribe punishment for discharge of trade effluent, but it prescribes punishment for non obtaining of consent of State Board for its establishment. The laboratory report with respect to discharge was required only in order to find out whether the industry fell within the category which may discharge trade effluent for which consent u/s 25 of Act 1974 is mandatory. Even if we ignore the aspect of Vikash Bansal vs DPCC :17: laboratory report as discussed in above paras, the subclause 5 imposes a rider and prescribes that where in violation of sub clause (1) such establishment has been made or is found running, the State Board is required to serve such person who has established the industry operation or process, a notice imposing any such condition as it might have imposed on an application for consent in respect of such outlet or discharge. The prosecution has not brought any material on record which may satisfy this court or suggest as to whether any notice u/s 25(5) of the Act 1974 was issued to the appellant at any point of time. The service of notice u/s 25(5) of the Act 1974 is mandatory as is apparent from this section. The word 'sewage system' herein used in Section 25 (5) of the Act, 1974 have been clarified in Section 25(1) of the Act, 1974 being as discharged sewage or trade effluent into the stream. Though the respondent has tried to clarify its stand by taking support of the judgments in Maili Yamuna case decided by Hon'ble Supreme Court of India in News Item "Hindustan Times" AQFM Yamuna Vs Central Pollution Control Board & anr. in order to substantiate its claim that no notice is required to attract punishment u/s 25(5) of the Act, 1974 but none of the judgments relied upon by the ld. Counsel for the respondent substantiate the arguments of Ld. Counsel for the respondent. Guidelines have been laid down therein all the judgments relied upon by ld. Counsel for the respondent but no where it is stated Vikash Bansal vs DPCC :18: that when an establishment is found violating the environmental law under Water Act, no notice is required in case it is mandatorily required to be given under the Act. The legislative mandate is that it is only after the violation u/s 25 of Act 1974 was found by the State Board, there is necessity of serving notice imposing such condition as it might have imposed on application for consent. This legislative mandate cannot be ignored by simply interpreting the judgments relied upon by ld. Counsel for the respondent in a way that since the dairy industry has been declared to be highly polluting units or since there was vide publicity in newspapers for following the environmental law by industries after the delivery of the judgments, the notice can be waived. This interpretation would again lead to conflict between the legislative mandate as well as the judicial pronunciation given the wordings of Section 25 of Act 1974 which is primarily concerned with obtaining of consent for setting up unit. As per the interpretation law, the interpretation of the judgments of the superior courts are required to be made in such a manner which should be in harmonious construction with the legislative law. My views are supported by the judgment of Hon'ble Supreme Court in Splendor Landbase Ltd. Vs Delhi Pollution Control Committee, 2010 SCC Online Delhi 3446 wherein it has been held as under:
"25. It appears to this Court that with the Vikash Bansal vs DPCC :19: buildings in question having already been constructed without obtaining prior consent to establish, the DPCC ought to have fallen back on the legislatively envisioned 'Plan B'. What ought to have been done by the DPCC was to invoke Section 25(5) of the Water Act. Section 25(5) talks of a situation where an industry operation or process has already been established or the steps for establishment have already been taken without obtaining the prior consent of the State PCC. In such an event the State PCC has to serve, on the person who has established or taken steps to establish, a notice imposing any such conditions as it might have imposed if an application had been made for its consent "in respect of such establishment, such outlet or discharge."
20. In case in hand as per evidence, no laboratory report has been filed by respondent to ascertain that the discharge by unit was trade effluent as the standards laid down in order to judge as to whether in fact consent of Board was needed to run the establishment nor any notice u/s 25(5) was given by respondent to appellant. This court holds that the conviction and sentence u/s 25 of the Act 1974 in the impugned judgment and impugned order on sentence respectively is not sustainable and is accordingly set aside.
Vikash Bansal vs DPCC :20:
21. Now coming to Section 24 of the Act 1974 for which the appellant has also been convicted and sentenced by the court of Ld. ACMM. Unlike Section 25 of Act 1974, clause (a) and (b) of Part I of Section 24 of Act 1974 deal with the offence relating to discharge of polluting matter into stream. As per mandate of Section 24(1)(a) of the Act 1974, a person shall not knowingly cause or permit any poisonous, noxious or polluting matter into any stream in violation of standards that may be laid down by the State Board. Under Section 24(1)(a) of Act, 1974, the State Board is under obligation to lay down standards as from a reading of Section 24 (1)(a) of the Act 1974 it can be inferred that the standards are required to be laid down for the purpose of disposal of poisonous, noxious and polluting matter. From the evidence of PW1 (initially CW1) Shyam Sunder, it is clear that the samples of the trade effluent alleged to have been released by the establishment of the appellant were not taken in order to determine as to whether such effluent released by the establishment of the appellant violated standards so laid down by the State Board.
22. Now this court will advert to the (b) part of Section 24(1) of the Act, 1974. As per provision of Section 24(1)(b), no person shall knowingly cause or permit to enter into any stream any other matter which may directly or in combination with similar matter, to impede the proper flow of water of a Vikash Bansal vs DPCC :21: stream in a manner leading or likely to lead to a substantial aggravation of pollution due to other cause or of its consequence. Here as highlighted above, the word used is 'any other matter' whereas in Section 25 of Act 1974 the word used is 'trade effluent' and in Section 24(1)(a) the word used is "poisonous,noxious or polluting matter." The scheme of Section 25 and Section 24(1)(a) of the Act, 1974 is such that the word 'trade effluent' or the word 'poisonous, noxious or polluting matter' discharged by unit are required to confirm to such standards as are required to be laid down by the Board. But unlike Section 25 or Section 24(1)(a) of Act 1974, there is no such requirement of laying down standards for discharge of 'any other matter' as contained in Section 24(1)(b) of Act 1974. Therefore, as such there is no requirement of laboratory report in order to prosecute the appellant u/s 24(1)(b) of the Act, 1974. In case the prosecution is able to prove that "any other matter" was released by the unit which tend to impede proper flow of water or aggravate pollution, that only would suffice to attract punishment u/s 24(1)(b) of the Act 1974. It is an evidence in this case that the appellant was running a sweet shop dealing in dairy products. The industry 'dairy product' has already been declared highly polluting industry vide order dated 05.02.2014 by Central Pollution Control Board as finds mention in the judgment of Hon'ble Apex Court in M.C. Mehta vs Union of India (2015) 12 SCC 764. This court would now Vikash Bansal vs DPCC :22: find out from evidence as to whether case of appellant fall within Section 24(1)(b) of the Act 1974.
23. In this case, the PW1 (initially CW1) Shyam Sunder has categorically mentioned in his examinationinchief that during the inspection, the establishment of the appellant was found in operation in making sweets and namkeens etc. and the entire trade effluent generated during the dish washing/utensils process being used for the preparation of the sweets and namkeen was being discharged without treatment into the public sewer. In his crossexamination, it has been highlighted by PW1 Shyam Sunder (initially CW1) that there was one outlet in the building and the outlet was coming from all floors which was common passing from ground floor. It was further elaborated by PW1 that unit was found in operation in making sweets/namkeen etc. and entire trade effluent generated during the dish washing/utensils process was used for preparation of the sweets and namkeen was being discharged without treatment to the public sewer.
24. The PW2 (initially CW2) Sh. Ajay Chagti stated in his examination in chief that raw materials like maida, khoya, dry fruits, ghee etc. were found lying in the establishment and the entire washing from the premises was being sent directly to the drains through outlets in the premises. It was termed to be Vikash Bansal vs DPCC :23: incorrect that accused persons used to wash and clean the utensils through markin cloth or any other chemical which cleans the effluent. It was further termed to be incorrect that effluent was never passing directly through a drain. Both these witnesses proved the inspection report. Since the order regarding the conviction and sentence of the appellant with respect to Section 24(1)(a), 25 & 26 of the Act 1974 has already been ordered to be not sustainable, therefore, the evidence regarding Section 24 (1)(b) of the Act 1974 is only being discussed herein.
25. The inspection report has already been proved as Ex.CW1/1 which carries the signatures of PW1 (initially CW1) and PW2(initially CW2) at points A & B. The inspection report Ex.CW1/1 also categorically suggests that the raw materials like maida, khoya, dry fruits, ghee etc. were also found lying there generated during the washing process of sweets/namkeens preparation was being discharged by the unit without treatment into the public sewer. No ETP was found installed and the unit was found in operation meaning thereby that the entire waste matter was discharged by the unit into stream. In such circumstances, the work 'trade effluent' as contained in the in the inspection report Ex.CW1/1 can very well be taken to mean "any other matter" within the meaning of Section 24(1)(b) of Act 1974. Though, the appellant has also examined himself as a Vikash Bansal vs DPCC :24: defence witness, but his plea that all the karahis and utensils were thoroughly cleaned by markin clothes and there was no usage of water directly cleaning these utensils is not worth acceptable as no ETP was found installed. Moreover, the ghee contents from the waste cannot be segregated through markin cloth which is the major contributory to the pollution. It has been admitted by DW1 Vikas Bansal in his crossexamination that the kitchen was and still connected to the Municipal Sewer Line and the entire area in his possession was being used for kitchen/manufacturing/storing of raw materials. Unlike Section 25 of the Act 1974 there is no such requirement of notice before prosecution of a person u/s 24 of the Act, 1974. The case of the appellant does not fall within the purview of Section 24(1)(a) of the Act 1974, but definitely falls within the ambit of Section 24(1)(b)of the Act 1974 as the appellant has permitted the discharge of the waste material from maida, khoya, dry fruits, ghee etc. which is definitely likely to impede the proper flow of water of the stream in a manner likely to lead to a substantive aggravation of pollution due to other causes or of its consequences and may cause pollution.
26. The Ld. Counsel for appellant has laid stress on the point that the PW1 (earlier CW1) in his crossexamination has categorically mentioned that till the date of inspection i.e. 05.06.2000 no diagram of oil or grease trap/ETP was published in any newspaper and no individual notice was served upon the Vikash Bansal vs DPCC :25: appellant. He also stated that PW1 (earlier CW1) also termed it to be correct that on 21.06.2000 a circular was issued by DPCC in daily newspaper "Hindustan Times" giving one month's time to install the ETP/oil and grease trap for eating places, dhabas /small restaurants etc. the copy of the newspaper was proved as ExDW1/1. He argued that when advertisement regarding installation of grease traps etc. could be published at date which was later in time from the date of inspection, how can the DPCC prosecute the appellant and hence his conviction by Ld. ACMM under the provisions of Act, 1974 is purely illegal.
27. I have gone through the testimonies of respondent's as well as appellant's witnesses. Though, the appellant has taken the plea that the circular regarding the installation of mechanism for treatment was issued on 21.06.2000, but the appellant cannot take benefit of the same as prior to date of inspection as the Hon'ble Supreme Court has time and again for continuous several years sensitized the operators of units w.r.t the increasing pollution. One such case was Maili Yamuna in which Hon'ble Supreme Court had taken suo motto cognizance on a newspaper report in a case titled as News Item "Hindustan Times" AQFM Yamuna Vs Central Pollution Control Board & anr. Writ Petition (Civil) No. 725/94 on 13.09.1999 observed as under:
As observed in our order dt. 27Th August, 1999 there are enough laws at the command of the Vikash Bansal vs DPCC :26: State to enable it to take appropriate action against the polluters in order to see that river is not polluted. No effective action has been taken so far. It is for this reason that we are constrained to hereby direct the National Capital Territory of Delhi through the Chief Secretary to take such measures as it may deem proper, if necessary, by passing appropriate orders under Section 5 of the Environment (Protection) Act, 1986 and also Water (Pollution and Control) Act, 1974 to ensure that no industrial effluent is allowed to be discharged directly or indirectly into the river Yamuna w.e.f. 1st November, 1999. If any industry is permitted to effect such a discharge, the court will be constrained to take appropriate action as may be necessary in order to ensure that this direction is complied with. The effect of this order is that w.e.f. 1st of November, 1999 no industry will be permitted to discharge any industrial effluent which do not conform to the parameters prescribed by the CPCB into the river Yamuna directly or indirectly."
Vikash Bansal vs DPCC :27:
28. Pursuant to this order, the Government of NCT of Delhi was called upon to file report within 8 weeks before Hon'ble Supreme Court. Further, in the same case on 24.01.2000 Hon'ble Supreme Court of India in News Item "Hindustan Times" A.Q.F.M. Yamuna vs Central Pollution Control Board & Anr. has held as under:
"Affidavit of the Chief Secretary has been filed which seems to indicate that orders which were passed by us earlier directing that the pollution of the river Yamuna should be stopped with effect from 1 st November, 1999 have not been complied with. This is so especially in view of the Report which has been filed by the Central Pollution Control Board which shows that the situation is alarming. For example, the BOD which should be at 2 in respect of fresh water, was at 234.21 tons per day on 30th November, 1996. This position with regard to the other pollutants is no better. In a hope that the Attorney General will be able to take effective steps with a view to achieve desired result, we adjourn this matter to 3rd March, 2000. We, however, in the meantime direct every drain leading to river Yamuna or to river Yamuna itself which has the effect of polluting the said river. This order prohibiting every industry from discharging the effluent which causes pollution, will be communicated to every industry by the Delhi Administration."
Vikash Bansal vs DPCC :28:
29. Accordingly, when the Hon'ble Apex Court was so much concerned with the rising pollution in Maili Yamuna case, the defence cannot be permitted to raise the plea of ignorance at this stage and cannot take defence that ETP diagrams etc. were published only after the date of inspection. The judicial notice can be taken of the fact that this case titled News Item "Hindustan Times" was in limelight for several years and these directions were given continuously by Hon'ble Apex Court in the year 1999 and 2000 i.e. before the date of inspection and hence appellant cannot be deemed to be ignorant of these directions given the established principles of law that ignorance or law is no excuse. The aforementioned judgments were passed during the time when State was not taking any steps for cleaning Yamuna and the Hon'ble Apex Court had passed the following orders on 27.08.1999 in Maili Yamuna case:
"Till now, since the last few years, this Court has been trying to see that the river does not get polluted and the quality of water improves. Orders had been passed directing the setting up of treatment plants, shutting or shifting of industries, but with no success. Perhaps it is time for the Court not to determine the manner in which the pollution is to be tackled, and leave it to the State to tackle it in the appropriate manner, but hold the State Vikash Bansal vs DPCC :29: accountable in case the pollution continues and the quality of water in the river Yamuna does not improve.
As already observed in the last order there are enough laws at the command of the State to enable it to take appropriate action to see that the river is not polluted. If the State chooses not to exercise its powers in that behalf then it must be held responsible for its inaction. The overwhelming majority of people of this State and those who depend upon the quality of the river water cannot be allowed to be held at ransom by a small percentage of persons polluting the river aided and abeted, in a way, by a governmental action."
30. In a recent case in U.P. Pollution Control Board Vs. Dr. Bhupender Kumar Modi and Another (2009) 2 Supreme Court Cases 147 it was held as under:
"38. In the case on hand which is also similar to Mohan Meakins Ltd. had commenced its journey in the year 1985, nonetheless lapse of such a long period cannot be a reason to absolve the respondents from the trial. In a matter of this Vikash Bansal vs DPCC :30: nature, particularly, when it affects public health if it is ultimately proved, courts cannot afford to deal lightly with cases involving pollution of air and water. The message must go to all persons concerned whether small or big that the courts will share the parliamentary concern and legislative intent of the Act to check the escalating pollution level and restore the balance of our environment.
Those who discharge which inflicts (sic harm) on the public health at large, should be dealt with strictly dehors the technical objections. Since escalating pollution level of our environment affects the life and health of human beings as well as animals, the courts should not deal with the prosecution for offences under the pollution and environmental Acts in a casual or routine manner."
31. The appellant has even flouted the order of Hon'ble Apex Court passed in Maili Yamuna case while discharging the other matters in the stream which may directly or in corroboration with similar matter lead to substantial aggravation of pollution or impede flow of water in stream. With these observations, I hold that Ld. ACMM has rightly convicted the appellant for the offences u/s 24 of Act 1974 more particularly u/s 24 (1)(b) of this Act.
Vikash Bansal vs DPCC :31:
32. As highlighted in Section 23 of the Act 1974, there is ample power with State Board for inspection for the purpose of examining any plant, record, register, document or for conducting search in order to find out as to whether the offence under the Act 1974 is being committed or not.
33. Regarding the plea of the appellant that there is no piece of evidence that inspection took place and the purported inspection report cannot be relied upon, the Ld. Counsel for respondent has drawn the attention of this court towards the inspection report Ex.CW1/1 wherein one Fakir Chand who claimed to be uncle of the appellant had signed in the presence of other witnesses. In statement u/s 313 CrPC, it has been mentioned by the appellant that on 05.06.2000 one Shyam Sunder and SDM came to his premises and compelled him to sign some documents without intimating the purpose. This itself suggests that premises of the appellant was inspected on 05.06.2000. The judgment relied upon by ld. Counsel for the appellant is not applicable on the factual matrix of this case as there is direct and straight evidence against the appellant on the plea raised therein. The crossexamination of the appellant by ld. Counsel for the respondent categorically goes to suggest that the appellant was in charge of and was responsible to the partnership firm for the conduct of its business as he described everything about the firm. He also mentioned the annual Vikash Bansal vs DPCC :32: average production for the year 20002001. He also stated that he was engaged in manufacturing of sweets and namkeens. He has specifically mentioned in his crossexamination that his firm was registered with the Sales Tax department in the year 2000 and that he had filed the sales tax return for the year 200001. He stated that though they had plant pots in the premises but they were maintaining any kitchen garden. He also admitted that he had filed inspection report Ex.CW1/1 but at the instance of respondent. This itself suggests that the appellant was responsible for the affairs of the firm and hence his plea that he was not Incharge of the firm stands rejected.
34. I have also heard the appellant on the impugned order on sentence. Ld. ACMM has sentenced the appellant to undergo SI for 3 years and fine of Rs. One lac for the offence u/s 24 r/w Section 43 of the Act 1974.
35. Ld. Counsel for appellant also argued that in case the impugned judgment is not set aside, lenient view be taken against the appellant and he may be ordered to be released on probation of good conduct under the Probation of Offender Act. The appellant submits that this was his first offence and he is not so literate businessman by profession. He also submits that immediately after the offence alleged was conveyed to him, he implanted all requisite treatment plants in his establishment.
Vikash Bansal vs DPCC :33: He submits that the appellant is ready to compensate the State under the "Polluter Pay principle" in case the impugned judgment is not set aside.
36. Per contra, Ld. Counsel for the respondent submitted that the appellant does not deserve any leniency as he had contributed to the rising pollution by releasing the discharge of his unit in the holy Yamuna river for which the current generation is under sufference. He stated that just for his business gains, the appellant flouted all norms and guidelines laid down by Hon'ble Apex court as well as of Act 1974. He advocated for the maximum punishment for the appellant.
37. To judge as to whether appropriate punishment u/s 43 of Act 1974 was ordered by Ld. ACMM vide impugned order on sentence, I recall the philosophy of Kautilya who opined as under:
"Whoever imposes severe punishment becomes repulsive to people while he who awards mild punishment becomes contemptible. The Ruler just with rod is honoured. When deserved punishment is given, it endows the subjects with spiritual good, material well being and pleasure of senses."
38. Further, I am being guided by the judgment in A.P. Pollution Control Board Vs. Prof. M.V. Nayudu (Retd.) & Vikash Bansal vs DPCC :34: others AIR 1999 Supreme Court 812, wherein Hon'ble Supreme Court has held that vide earlier judgments of the Apex Court the precautionary principle and the Polluter Pays Principle have become part of the environmental law of the country. The Hon'ble Apex Court while referring to earlier judgment held that even otherwise the abovesaid principles are accepted as part of the Customary International Law and hence there should be no difficulty in accepting them as part of our domestic law.
39. Section 43 of the Act, 1974 deals with punishment for violation of the provisions of Section 24 of the same Act and it prescribes a punishment with imprisonment of a term which shall not be less than one year and six months but which may extend to six years and with fine. Meaning thereby, a minimum punishment of one year and six months have been prescribed in the said section. It is settled law that wherever there is a mandate of minimum punishment being provided by any particular Act, the provisions of Probation of Offender Act are not applicable. In this regard, my views are supported by a judgment of Hon'ble Supreme Court of India in AIR 2007 SC 51, State vs A.Prathiban wherein it was held as under:
"14. In the case of Superintendent Central Excise, Bangalore v. Bahubali (1979 (2) SCC 279), while dealing with Rule 126P (2)(ii) of the Defence of India Rules which prescribed a minimum sentence and Section 43 of the Defence of India Act, 1962 almost similar to the Vikash Bansal vs DPCC :35: purport enshrined in Section 28 of the Act in the context of a claim for granting relief under the Probation Act, this Court observed that in cases where a specific enactment, enacted after the Probation Act prescribes a minimum sentence of imprisonment, the provisions of Probation Act cannot be invoked if the special Act contains any provision to enforce the same without reference to any other Act containing a provision, in derogation of the special enactment, there is no scope for extending the benefit of the Probation Act to the accused. Unlike, the provisions contained in Section 5(2) proviso of the Old Act providing for imposition of a sentence lesser than the minimum sentence of one year therein for any "special reasons" to be recorded in writing, the Act did not carry any such power to enable the Court concerned to show any leniency below the minimum sentence stipulated. These aspects were highlighted in State through SP, New Delhi v. Ratan Lal Arora (2004 (4) SCC 590)."
40. Accordingly, the prayer of the ld. Counsel for the appellant for release of the appellant on probation stands rejected.
41. For the purposes of sentencing, I am also being guided by the recent judgment of Hon'ble Apex Court in State of Himachal Pradesh vs Nirmala Devi (2017)7 SCC 262 decided on 10.04.2017, the Hon'ble Supreme Court while dealing with sentencing of a convict referred to a previous case Vikash Bansal vs DPCC :36: titled "Aero Traders (P) Ltd. Vs Ravinder Kumar Suri, wherein it was observed as under: "36. Having discussed about the discretion, presently we shall advert to the duty of the court in the exercise of power while imposing sentence for an offence. It is the duty of the court to impose adequate sentence, for one of the purposes of imposition of requisite sentence is protection of the society and a legitimate response to the collective conscience. The paramount principle that should be the guiding laser beam is that the punishment should be proportionate. It is the answer of law to the social conscience.
In a way, it is an obligation to the society which has reposed faith in the court of law to curtail the evil. While imposing the sentence it is the court's accountability to remind itself about its role and the reverence for rule of law. It must evince the rationalised judicial discretion and not an individual perception or a moral propensity.
But, if in the ultimate eventuate the proper Vikash Bansal vs DPCC :37: sentence is not awarded, the fundamental grammar of sentencing is guillotined. Law cannot tolerate it; society does not withstand it; and sanctity of conscience abhors it. The old saying " the law can hunt one's past"
cannot be allowed to be buried in an indecent manner and the rainbow of mercy, for no fathomable reason, should be allowed to rule. True it is, it has its own room, but, in all circumstances, it cannot be allowed to occupy the whole accommodation..................
Money cannot be the oasis. It cannot assume the centre stage for all redemption.
Interference in manifestly inadequate and unduly lenient sentence is the justifiable warrant, for the Court cannot close its eye to the agony and anguish of the victim and, eventually, to the cry of the society."
42. From this judgment it is clear that money cannot be the oasis and it cannot assume the center stage for all redemptions. Interference in manifestly inadequate and unduly lenient sentence is the justifiable warrant, for the court cannot close its eyes to the agony and anguish of the victim and, Vikash Bansal vs DPCC :38: eventually to the cry of the society. In terms of this latest judgment of Hon'ble Supreme Court of India in Niramla Devi's case (year 2017), this court is of view that it is equally important to keep in mind the rights of the victim as well as society at large and the corrective theory on one hand and deterrence principle on the other hand should be adopted on the basis of factual matrix. Here in this case for the actions of appellant the society is crying for justice. The legislative mandate vide which a minimum sentence of one year and six months has been prescribed in Section 43 of the Act 1974 for contravening the provisions of Section 24 of Act 1974 itself exhibits the gravity and seriousness of the offence. Accordingly, the prayer of the appellant for his release on payment of compensation only under Polluter Pay Principle is rejected.
43. One can't forget that recently Hon'ble Uttarakhand High Court has declared river Ganga and river Yamuna as "living entities." There is no denying the fact that rivers in India are highly revered. Rivers are considered as sources of life in this agrarian country. The rivers have cultural, spiritual and religious connotations. However, it is also a fact that we are unable to ensure the physical protection of rivers owing to industrialization, urbanization etc. To understand this great judgment in Mohd. Salim vs State of Uttarakhand WP 126/2014 decided on 20.03.2017, we are required to know Vikash Bansal vs DPCC :39: what it means in law for a thing to become a 'real' legal person. The story began when some persons encroached along with right bank of the Shakti canal in the Kulhal District of Dehradoon and started raising a construction. Neighbours therein complained. The administration acted, but it was unclear if this land fell within Uttarakhand or was a part of Uttar Pradesh. The dispute ultimately negotiated the labyrinth of India's judicial system and came to rest in the High Court. The Hon'ble High Court took the view that Indians have deep veneration for the Ganga and the Yamuna, which rivers have provided both physical and spiritual sustenance to all of us from time immemorial. For this reason, they must be recognized as living persons, especially in view of Articles 48A and 51A(g) of our Constitution. In conclusion, the Hon'ble High Court declared the Director NAMAMI Gange, the Chief Secretary of the State of Uttarakhand and the Advocate General of the State of Uttarakhand as persons in loco parentis (meaning "in place of the parents") as the human face to protect, conserve and preserve the rivers Ganga and Yamuna and their tributaries.
44. The judgment means that river for instance is holy from the time immemorial and in this background, the Hon'ble Uttarakhand High Court has reminded us about something by stating the obvious by declaring it a legal person. The case in hand relates to the contribution of the appellant in aggravating Vikash Bansal vs DPCC :40: the pollution in river Yamuna. The Hon'ble Apex Court from the very beginning has been trying to awake the State from its slumber and also sensitizing the citizens of India to refrain from further polluting it various directions were issued to State and the public at large to save Yamuna by Hon'ble Supreme Court even prior to date of inspection in this case. The rivers being the life line of a country is of utmost importance for the survival of mankind. It is only because of the non sensitivity of the people like appellant that the current generation is unable to have a pure and clean Yamuna and thus is deprived of the use of natural resources. The appellant has also not cared for the principle of intergenerational equity.
45. Further in a case decided by House of Lords in Donoghue Vs Stevenson (1932) AC 562 (HL), it was observed that the concept of legal responsibility may develop in adaptation to altering social conditions and standards. The criterion of judgment must adjust and adapt itself to the changing standards of life. Accordingly, considering the extenuating and mitigating circumstances of the appellant and considering the larger interest of the society and also after making a balance between the conflicting interests of the appellant and the society and in terms of directions laid down by Hon'ble Supreme Court w.r.t sentencing, the sentence imposed by Ld. ACMM is modified to the extent that sentence of Vikash Bansal vs DPCC :41: imprisonment awarded by Ld. ACMM u/s 24 of the Act 1974 is reduced from period of 3 years to 2 years. The fine of Rs. One lac shall remain the same for the said section.
46. Further, Ld. ACMM has restricted the sentence to imprisonment and fine only and has not granted any compensation. Since the society has suffered due to polluting the stream and consequently river Yamuna by the appellant, it would be appropriate to consider the aspect of compensation in addition to sentence of imprisonment and fine.
47. Regarding compensation to the victims, the Hon'ble High Court of Delhi in Vikas Yadav Vs. State of UP & Sukhdev Yadav Vs. State of NCT of New Delhi case had laid down the following guidelines:
"The manner in which the court shall proceed u/s 357 of Cr.P.C, is well settled. We hereunder sum up the procedure to be followed:
i. Once a judgment of conviction is returned, or upheld, it is the mandatory duty of every court to consider whether the case is a fit case for award of compensation.
vii. Under no circumstance can the fine or compensation be either irrational or exorbitant.
Vikash Bansal vs DPCC :42: ix. If recovery of the compensation or any part thereof is not possible from offender, the court shall proceed to cause the same to be paid in accordance with the provisions of section 357A Cr. P.C and any scheme thereunder....
48. Accordingly, in terms of aforementioned judgment, I hereby order that the appellant shall pay compensation of Rs. 2.5 lacs. The victims herein are not individuals but the collective members of society at large. It won't be possible for this court to grant individual compensation to each citizen. Therefore, it would be appropriate that the compensation which has been ordered by this court besides sentence of imprisonment and fine u/s 24 r/w Section 43 of Act, 1974 shall be deposited in the Prime Minister's Relief Fund by the appellant.
49. Regarding sentence of imprisonment in default of payment of compensation, the Hon'ble Apex Court while upholding the earlier law in Vijayan Sadanandan K. (2009) 6 SCC 652 and after referring to relevant provisions of CrPC and IPC and after discussing two earlier judgments, in its latest judgment in Kumaran Vs State of Kerala & Anr. Criminal Appeal No.'s 896897 of 2017 has held as under:
"27. These two judgments make it clear that the deeming fiction of Section 431 Vikash Bansal vs DPCC :43: CrPC extends not only to Section 421, but also to Section 64 of the Indian Penal Code.
This being the case, Section 70 IPC, which is the last in the group of Sections dealing with sentence of imprisonment for non payment of fine must also be included as applying directly to compensation under Section 357(3) as well."
Accordingly, in terms of the aforementioned dictum laid down by Hon'ble Apex Court, the appellant shall undergo simple imprisonment of 6 months (six months) in default of payment of compensation.
50. The final outcome of this appeal is that it is partly allowed. The conviction and sentence of appellant awarded by Ld. ACMM u/s 25 and u/s 26 of Act 1974 is set aside. However, the conviction of appellant u/s 24 of Act 1974 is upheld. The sentence of appellant awarded by Ld. ACMM u/s 24 r/w Section 43 of the Act 1974 is also modified. The final sentence u/s 24 r/w Section 43 of the Act 1974 is as under:
Appellant Vikash Bansal is sentenced to imprisonment for 2 years (two years) for the offence punishable u/s 24 r/w Section 43 of the Act 1974 . However, the fine of Rs. One lac u/s 24 r/w Section 43 of the Act 1974 shall remain the same (already deposited with Ld. ACMM). Further, the appellant shall pay Vikash Bansal vs DPCC :44: compensation to the tune of Rs. 2.5 lacs in Prime Minister's Relief Fund. In default of payment of compensation, the appellant shall undergo SI for 6 months.
The appellant has already furnished bonds u/s 437A CrPC.
51. Appeal stands disposed of accordingly. Bail bonds and surety bonds of the appellant stands cancelled except the bail bond and surety bond filed u/s 437A CrPC. The appellant be taken into custody. Jail warrants be prepared accordingly. Copy of this judgment be sent to the Superintendent (Jail) with jail warrants. Copy of this judgment be given free of cost to the appellant.
Appeal file be consigned to record room. TCR be sent back with a copy of this judgment.
Announced in the open court on this 21st day of November, 2017.
(SANJAY KUMAR AGGARWAL) Special Judge03, (P.C. Act)CBI Tis Hazari Courts, Delhi.
Vikash Bansal vs DPCC