Delhi District Court
Dpcc vs . M/S. Krishna Agencies & Anr. on 15 November, 2018
1
IN THE COURT OF SH. PAWAN SINGH RAJAWAT:
ACMM (SPL. ACTS): CENTRAL DISTRICT: THC: DELHI
CC No. 536978/2016
DPCC Vs. M/s. Krishna Agencies & Anr.
JUDGEMENT
(a)Date of commission of offence : 17.11.2009
(b)Name of complainant : Delhi Pollution Control Committee, Through Sh. V.K. Jain Assistant Environment Engineer, IVth Floor, ISBT Building, Kashmere Gate, Delhi
(c)Name, parentage, residence : 1. M/s Krishna Agencies of accused F-7/1, Model Town-II, Delhi-110 009.
2. Sh. Sarang Walia S/o Sh. Pradeep Walia R/o K 1/36, Model Town-II Delhi-110 009.
(d)Offence complained of/ proved : U/s 15/16 of the Environment (Protection) Act, 1986.
(e)Plea of accused : Pleaded not guilty. (f)Final order : Acquitted. (g)Date of such order : 15.11.2018
Date of institution of complaint : 06.02.2010 Date of judgment reserved : 12.11.2018 Date of Judgment : 15.11.2018 DPCC Vs. M/s. Krishna Agencies & Anr. CC No.536978/2016 1 of 19 2 Brief statement of the reasons for the decision:-
1. The complainant i.e Delhi Pollution Control Committee (in short DPCC) filed the present complaint against the accused no.1 M/s.
Krishna Agencies and accused no. 2 Sarang Walia through Sh. V.K. Jain, the then Assistant Environment Engineer (AEE).
2. It is stated in the complaint that as per the notification bearing no. F.08 (86)/EA/Env./2008/9473 dated 07.01.2009 issued by Hon'ble Lieutenant Governor of National Capital Territory of Delhi, use, sale and storage of all kinds of plastic bags shall be forbidden in respect of the places as mentioned in the notification.
3. It is further stated that public notices were issued in various newspapers informing the public at large about the contents of the notification dated 07.01.2009. It is further stated in the complaint that M/s. Krishna Agencies situated at F-7/1, Model Town-II, Delhi is found using, storing and selling goods in plastic bags and same is being run, administered and managed by accused Sarang Walia, who was also owner of the shop and present at the time of inspection on 17.11.2009 at 1.30 pm.
4. It is further stated in the complaint that implementing officers who was part of the inspection team headed by SDM Model Town, collected the samples of 40 polythene bags from the premises of the accused no. 1 and it was found that accused was using polythene / plastic carry bags and was willfully violating the prohibition as mentioned in the notification dated 07.01.2009. Hence, the present DPCC Vs. M/s. Krishna Agencies & Anr. CC No.536978/2016 2 of 19 3 complaint.
5. After taking cognizance, accused was summoned. After appearance, the accused was supplied with copy of the complaint and documents and the matter was posted for pre-charge evidence.
6. To support its case, complainant examined CW-1 Mr. Pradeep Baijal (retired SDM), CW-2 Mr. V.K. Jain, Environment Engineer, CW-3 Mr. Manohar Lal, Field Assistant DPCC, CW-4 Sh. Jaswant Singh Driver in the office of Dy. Commissioner and CW-5 Mr. Kulanand Joshi, Member Secretary, DPCC. Thereafter, vide order dt. 07.05.14 accused were discharged.
7. However, the complainant challenged the said order and vide order dt. 17.08.15, Ld. Sessions Court has set aside the order of discharged and directed the complainant to move appropriate application for pursuing the complaint through Member Secretary. In compliance of the said order, complainant moved an application U/s 311 Cr.P.C. which was allowed vide order dt. 18.01.16. Thereafter, CW-2 Sh. V.K. Jain and CW-5 Sh. Kulanand Joshi were recalled, further examined, cross examined and discharged.
8. After hearing arguments vide order dt. 09.05.16, charge was framed against the accused person to which he pleaded not guilty and claimed trial. The witnesses were recalled in post charge evidence, further examined, cross examined and discharged. Statement of accused no. 2 U/s 313 Cr.P.C. was recorded for himself DPCC Vs. M/s. Krishna Agencies & Anr. CC No.536978/2016 3 of 19 4 as well for accused no. 1 on 20.08.16 wherein he denied the allegations and intend to lead defence evidence. Complainant Evidence
9. CW-1 deposed that he alongwith Sh. Jaswant and Sh. Manohar inspected the premises of Krishna Agencies at F-7/1, Model Town on 17.11.09 and found that the accused was storing and using 40 polythene bags. He further stated that the statement dt. 17.11.09 of accused Sarang Walia Ex. CW-1/2 was recorded in the presence of two witnesses and thereafter seizure memo Ex. CW-1/3 was prepared at the spot and 40 polythene bags were sealed in an envelope. Witness identified the case property Ex. P-1. He further stated that the report Ex CW-1/1 was prepared at the spot and alongwith inspection report Ex. CW-1/4, was forwarded to Member Secretary, DPCC.
10. In post charge evidence, CW-1 stated that at the relevant time he was also looking after the charge of Local Health Authority and on the date of inspection, under his supervision, the food inspector has taken sample of three packets of milk food, desi ghee against payment of Rs. 765/-. The report of the food inspector is Ex. CW-1/5.
11. During cross-examination on behalf of accused, CW-1 admitted that the sample of three packets of ghee were cleared during testing. He further stated that 40 poly bags (panni) were seized from the possession of accused, however he failed to state how many poly bags were counted in the hearing before the Court and admitted that the bags were 43 in number. He denied the suggestion that as per DPCC Vs. M/s. Krishna Agencies & Anr. CC No.536978/2016 4 of 19 5 law the recovered bags were to be sent for lab testing. He failed to state as to whether on 17.11.09 any other sample of poly bags were seized by him. He further stated that the signature of representative of Krishna Agencies were not taken on the poly bags. He denied the suggestion that the case property which was sized from the premises of accused were not the same which was produced before the court due to variation in the quantity. He admitted that he was residing in Model Town at the relevant time but he denied having any grudge against accused no.2. He also denied that he knew or met accused no. 2 before the date of inspection.
12. CW-2 Sh. V.K. Jain, Environment Engineer, DPCC deposed that he inspected the unit of the accused and forwarded the inspection report, seizure memo, statement of accused to DPCC vide letter Ex. CW-1/1. He further deposed that the accused found using polythene bags in violation of notification of LG dt. 07.01.09 Ex. CW-2/1. He further stated that he was authorized vide minutes of DPCC Board Meeting dt. 09.12.09 Ex. CW-2/2 to file the present complaint Ex. CW- 2/3 and in pursuant to the approval of the then Member Secretary Dr. A.K. Ambasht vide note dt. 01.01.10 Ex. CW-2/4. He further deposed that the filing of the complaint by CW-1 has been further ratified by Sh. Kulanand Joshi vide ratification decision dt. 24.07.05 Ex. CW-2/5 and the present MS had also filed affidavit dt. 07.01.09 Ex. CW-2/6 before Ld. ASJ for further pursuing the present complaint.
13. During cross-examination he stated that he filed the present case after getting the permission from his department and his DPCC Vs. M/s. Krishna Agencies & Anr. CC No.536978/2016 5 of 19 6 concern was only to file the present case and other things were done by his legal department. He admitted that he has no personal knowledge about the site of the present case. In post charge evidence, he admitted that as per documents received by him, Seema Walia was not shown as proprietor of accused no. 1. He stated that as per notification dt. 07.01.09 the examination/verification of plastic bags is not required.
14. CW-3 stated that he was field Assistnat in the department of Food Safety and on 17.11.09 he alongwith Pradeep Baijal, then SDM and driver Jaswant Singh visited the shop in question for inspection about use of plastic bags. He idnetified the accused no. 2 as the person who was found in the shop and claimed that they found that plastic bags were being used by the accused. He stated about preparation of inspection report, seizure memo and statement of accused. He also identified the case property when produced before the Court.
15. During cross-examination he denied the suggestion that they took four packets of milk food desi ghee and when accused asked for payment, he was falsely implicated. He denied that no polythene bag was seized from the shop but admitted that the case property is easily available in the market and bags in question does not bear name of the shop or signature of the accused. He admitted the preparation of Ex. CW-1/D1 whereby food samples were taken. In his further cross examination in post charge, he failed to state whether any other raid was conducted on the said date or even in the month DPCC Vs. M/s. Krishna Agencies & Anr. CC No.536978/2016 6 of 19 7 of September 2009. He admitted that he have no written record to show his presence with the inspecting team. He admitted that signature of accused were not taken on the polythene bag or on the paper bag. He denied the suggestion that he was not part of the raiding team.
16. CW-4 is the driver of the then SDM. He stated that on 17.11.09, SDM Pradeep Baijal told him to take the vehicle to Model Town and they reached a shop whose name he does not know. However, he identified the accused as the person who was found in the said shop. He stated that polythene bags were lying there and same were seized by preparing 2-3 documents. He initially not identified the case property but lateron identified the same on the basis that the same was kept in the brown envelope. However, he failed to state whether the polythene bags shown to him are the same which were seized from the shop of the accused and claimed that he identified the case property only after seeing the brown envelope. He denied the suggestion that four packets of milk food desi ghee were taken from the spot and on asking of payment accused was falsely implicated. He denied the suggestion that no polythene bags were seized from the shop and admitted that case property does not bear name of the shop or signature of accused and the same are easily available in the market. He failed to estate whether any sample of food products were taken. However, when confronted with the CW- 3/D-1 & CW-3/D2 he admitted the same. In further cross- examination, in post charge evidence, he stated that he was maintaining the log book and entered the details of visits in Krishna DPCC Vs. M/s. Krishna Agencies & Anr. CC No.536978/2016 7 of 19 8 Agencies in the said log book. He denied the suggestion that he is not aware about the proceedings conducted during the raid. The concerned log book could not be produced as the same was weeded out in the year 2013 itself. The communication in this regard is Ex. CW-4/X.
17. CW-5 was the Member Secretary of the complainant. He stated that Member Secretary is authorized to file the prosecution as per notification dt. 07.01.09 and 03.09.96.He proved the approval of the then Member Secretary as Ex. CW-2/2.
18. During cross-examination, he denied the suggestion that accused has been falsely prosecution under wrong provisions of law. He also denied the suggestion that plastic bag of 20 microns are allowed to be used in Delhi in the year 2009. He admitted that he was not present at the time of raid and therefore, cannot comment upon the thickness of the polythene bags seized. He denied the suggestion he has approved ratification without going through the record.
19. Accused no. 2 examined himself as Defence witness. He claimed that at the time of alleged raid, he was not present at the shop and came later on. He further stated that Sh. Pradeep Baijal seized four milk food ghee packets for checking adulteration but made payment for three packets only. He further stated that he was not given copy of any seizure memo or sample of said carry bags. He also claimed that Sh. Pradeep Baijal used to take monthly grocery DPCC Vs. M/s. Krishna Agencies & Anr. CC No.536978/2016 8 of 19 9 item on credit from the shop and payment was overdue by two weeks. He also claimed that his mother has sent the sales boy to the house of Sh. Pradeep Baijal for collecting the payment and 2-3 days thereafter the alleged raid was conducted. He also relied upon detailed submissions Ex. DW-1/A in support of his testimony.,
20. During cross-examination he stated that the carry bags seized form his shops were of more than 40 microns. He failed to state the material used for manufacturing of the said carry bags. He admitted that Ex. CW-1/2 bears his signatures. He denied the suggestion that he had concocted a story of SDM taking a grocery items from his ship on credit basis as an afterthought. He admitted that he had not filed any recovery suit against the SDM for the grocery item which was allegedly purchased from his shop. He denied suggestion that the desi ghee samples were taken as he could not furnish the name and address of the supplier. He admitted that he had not lodged any complainant against SDM for forcibly taken three packets of milkfood or for forcibly taking his signatures. He admitted that copy of seizure memo was supplied to him at the time of inspection. He showed his ignorance whether at the time of seizure of polythene bags, there was prohibition for the use of all kinds of polythene bags. He denied the suggestion that his father and mother have filed number of complainant against Sh. Pradeep Baijal and officials of DPCC to browbeat them against pursuing of the complaint.
21. I have given my thoughtful consideration to the submissions advanced on behalf of the parties and have gone through the DPCC Vs. M/s. Krishna Agencies & Anr. CC No.536978/2016 9 of 19 10 relevant records. I have also gone through the relevant provisions of Environment Protection Act and also the Gazette notification dt. 07.01.09.
22. Complainant has to prove that accused was found operating the store in question and was found using polythene / plastic bags in the premises for the delivery of goods and thereby was willfully violating the prohibition as mentioned in the notification dated 07.01.2009 and hence, attracted the penalty U/s. 15 of the Act.
23. The recovery witnesses i.e. CW-1, CW-3 & CW-4 stated that 40 polythene bags were seized from the shop. However, when the case property was produced in the Court, it was noted that there were 43 poly bags. The witness have tried to explain the mismatch of number by stating that due to sticking of poly bags, there was mistake in counting at the time of seizure. Admittedly, the alleged polythene bags were not sent to any lab for testing as to whether the bags seized are the polythene bags which are prohibited by the notification dt. 07.01.09. It is the categorical submission of accused that the alleged bag seized from the shop are biodegradable and therefore, same cannot be taken as being prohibited under the said notification. Moreover, the onus is upon the complainant to prove that the alleged bags seized from the shop are indeed the prohibited articles in terms of notification dt. 07.01.09.
24. At this stage it is to be noted that a special procedure has been prescribed under the E.P. Act for taking samples and procedure DPCC Vs. M/s. Krishna Agencies & Anr. CC No.536978/2016 10 of 19 11 to be followed in connection therewith. Rule 6 of the Environment (Protection) Rules, 1986, provides the procedure for taking samples is reproduced for ready reference as under:-
[6. Procedure for taking samples:- The Central Government or the officer empowered to take samples under section 11 shall collect the sample in sufficient quantity to be divided into two uniform parts and effectively seal and suitably mark the same and permit the person form whom the sample is taken to add his own seal or mark to all or any of the portions so sealed and marked. In case where the sample is made up in containers or small volumes and is likely to deteriorate or be otherwise damaged if exposed, the Central Government or the officer empowered shall take two of the said samples without opening he containers and suitably seal and mark the same. The Central Government or the officer empowered shall dispose of the samples so collected as followed:- (I) one portion shall be handed over to the person from whom the sample is taken under acknowledgment; and (ii) the other portion shall be sent forthwith to the environmental laboratory for analysis.] Furthermore, Section 11 of the Environment (Protection) Act 1986 describes the power to take sample and procedure to be followed in connection therewith and for ready reference, the said provision is reproduced as under:-
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11. Power to take sample and procedure to be followed in connection therewith-
(1) The Central Government or any officer empowered by it in this behalf, shall have power to take, for the purpose of analysis, samples of air, water, soil or other substance from any factory, premises of other place in such manner as may be prescribed.
(2) The result of any analysis of a sample taken under sub section(1) shall not be admissible in evidence in any legal proceeding unless the provisions of sub-sections (3) and (4) are complied with.
(3) Subject to the provisions of sub-section (4) the person taking the sample under sub section (1) shall-(a) serve on the occupier or his agent or person in charge of the place, a notice, then and there, in such form as may be prescribed, of his intention to have it so analysed; (b) in the presence of the occupier or his agent or person, collect a sample for analysis; (c) cause the sample to be placed in a container or containers which shall be marked and sealed and shall also be signed both by the person taking the sample and the occupier or his agent or person;(d) send without delay, the container or the containers to the laboratory established or recognized by the DPCC Vs. M/s. Krishna Agencies & Anr. CC No.536978/2016 12 of 19 13 Central Government under section 12.
(4) When a sample is taken for analysis under sub-section(1) and the person taking the sample serves on the occupier or his agent or person, a notice under clause (a) of sub-section (3) then,-(a) in a case where the occupier, his agent or person willfully absents himself, the person taking the sample shall collect the sample for analysis to be placed in a container or containers which shall be marked and sealed and shall also be signed by the person taking the sample, and (b) in a case where the occupier or his agent or person present at the time of taking the sample refused to sign the marked and sealed container or containers of the sample as required under clause (c) of sub section (3) the marked and sealed container or containers shall be signed by the person taking the samples, and the container or containers shall be sent without delay by the person taking the sample for analysis to the laboratory established or recognized under section 12 and such person shall inform the Government Analyst appointed or recognized under section 13 in writing about the willful absence of the occupier or his agent or person, or, as the case may be, his refusal to sign the container or containers.
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25. In the above mentioned provisions, it is manifestly clear that a prescribed procedure should be followed for sampling. The intention of the legislature in providing for procedure is to ensure that there shall not be any allegations of bias against the seizing officers. The procedure has to be mandatorily followed and non compliance seriously jeopardizes the case of the complainant as such non compliance puts a question mark on the whole process of seizure. CW-1, CW-3 & CW-4 have stated that the samples were seized from the shop and seizure memo was prepared. They further stated that statement of accused no. 2 was also prepared at the spot. However, the procedure as prescribed for taking sample has not been followed by the inspection team. Neither the signature of the accused were taken on the alleged polythene bags nor a portion of the alleged polythene bags was given to the accused as mandated under Rule 6 of the Environment (Protection) Rules. It is not the case of complainant that the members of the inspection team are experts having undergone some training in identifying the prohibited articles i.e. the polythene bags. The law provides that the sample seized must necessarily be sent to the environmental laboratories as established or recognized under the Act. The complainant for reasons best known have neither handed over a part of the seized case property to the accused in terms of Rule 6 nor sent the case property for lab analysis as mandated U/s 11 and 12 of the Act to show that seized articles are polythene bags.
26. During arguments, Ld. Counsel for complainant argued that the procedure U/s 11 of the Act r/w Rule 6 of the Rules 1986 is not DPCC Vs. M/s. Krishna Agencies & Anr. CC No.536978/2016 14 of 19 15 mandatory and is not applicable for the polythene bags. He also pointed out that the said procedure is to be followed while taking samples of Air, Water or Soil. The argument of Ld. Counsel for complainant is rejected as Section 11 provides for taking of samples of other substances also and the alleged polythene bags definitely comes within the definition of other substances.
27. Even, the procedure followed for seizing of the case property is not without blemish as not only the quantity of the alleged bag was mismatched with the seizure memo when produced before the Court, but also the said seized bags were not sent to any lab for analysis to determine the material used in manufacturing of the said bags.
28. The testimony of CW-3 cannot be relied upon as initially in his cross-examination he has denied that the inspection team has also seized four milkfood desi ghee, but when he was confronted with the document Form-VI dt. 17.11.09 which is the seizure memo of the desi ghee seized by the food inspector, he admitted that indeed the desi ghee food sample was also taken. Even during cross- examination he failed to state how many poly bags were found when the envelopes were opened before the Court. But surprisingly, in post charge evidence, he again remembered only 40 bags were seized from the accused.
29. CW-3 & CW-4 have failed to state in their cross-examination how many inspections/raids were conducted on 17.11.09. CW-1 also stated that he do not remember whether on 17.11.09 whether any DPCC Vs. M/s. Krishna Agencies & Anr. CC No.536978/2016 15 of 19 16 other samples of poly bags were seized by him.
30. Accused have claimed that since the CW-1 was asked to pay for the grocery items supplied to his house, he falsely implicated the accused. CW-1 admitted in cross-examination that at the relevant time he was residing in Model Town. However, he showed ignorance whether he knew accused no. 2 prior to date of inspection. He denied having any grudge against the accused. In defence evidence accused no. 2 examined himself as DW-1 wherein he categorically stated that due to his asking for the payment, Sh. Pradeep Baijal has falsely implicated him. But in cross-examination DW-1 admitted that till date he has not filed any complainant before any authority about such non payment by Sh. Pradeep Baijal. Hence, the plea of personal vendetta against accused is not made out.
31. At the same time it is to be noted that the members of the raiding party failed to state as to how many places they have inspected on 17.11.09, for the violation of notification dated 07.01.09. It is not the case of complainant that the members of the raiding team have specific prior secret information of storing/using of polythene bags by the accused person. The complainant has failed to show as to under what circumstances the inspecting team reached the shop of the accused only for inspection and has not conducted inspection of any other shop. It is not the case of complainant that shop in question is the only shop located in the market or all other shops were closed at that point of time.
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32. Ld. Counsel for complainant argued that the bags in question were admitted as polythene bags by accused no. 2 as in his cross- examination as DW-1 he has stated that polythene bags seized form his shop were of 50 microns as the same was mentioned on the bags.
33. It is settled position of law that prosecution/complainant has to stand on its own legs and any admission on the part of accused can only be used for the limited purpose of corroboration. Section 21 of Indian Evidence Act provides that admissions are relevant and may be proved against the person who makes them. However, the statement of accused no. 2 as DW-1 that bags seized from his shop were about 50 microns and they were biodegradable cannot be considered as admission wherein the complainant itself has failed to brought on record the type of the bags seized from the accused person. Had the complainant proved by positive evidence to the type and quality of bag seized, then such statement of DW-1 could have been referred for the purpose of corroboration.
34. Ld. Counsel for complainant has relied upon judgment in the matter of U.P. Pollution Control Board Vs. Dr. Bhupender Kumar Modi & Anr. : (2009) 2 SCC 147 and argued that since the allege offence against the accused affects public health, Court should not dealt lightly with the cases involving pollution of Air and Water. He also submits that persons who inflict harm on public health at large should be dealt with strictly dehors the technical objections and therefore, non sending the samples to the environmental lab for testing should not result into acquittal of the accused. DPCC Vs. M/s. Krishna Agencies & Anr. CC No.536978/2016 17 of 19 18
35. It settled position of law that in criminal cases the law should be interpreted strictly as it entales compromising the lift and liberty of persons. The judgment cited by Ld. Counsel for complainant is not applicable to the present case as in the said case the point of consideration was whether there are certain material against the respondent which may made out a prima facie case for issuance of process against him, but the present case has seen a complete trial giving ample opportunity to the complainant to bring their case within the four corners of law. I have no quarrel with the submission of Ld. Counsel that persons committing environmental offences should be dealt strictly but at the same time, the mandate of law as provided under the Environment (Protection) Act should be implemented in letter and spirit. The provision of section 11 of the Act and Rule 6 are provided in the Act itself as departure from following the said procedure have serious repercussions against the persons who is prosecuted.
36. While giving testimony as DW-1, accused no. 2 has also placed on record a written statement which has relevant provisions of law as well as certain averments which were nothing but the zest of the testimony of complainant witnesses as well as certain correspondences between the accused herein with the complainant in the RTI applications. The said correspondents does not merit a mention in the judgment as the averments/facts have no relevance for deciding the present complaint. Accused has also filed copy of order dt. 17.12.13 in the matter of DPCC Vs. Vicky Plastic decided by the Predecessor of this Court, but the said order has no relevance DPCC Vs. M/s. Krishna Agencies & Anr. CC No.536978/2016 18 of 19 19 for deciding the present complainant. The accused has also filed judgment dt. 07.08.08 in the matter of Vinod Kumar Jain Vs. Union of India & Anr. Wherein certain directions were issued by the Hon'ble High Court. The said judgment was also not applicable to the facts of the complaint as the notification dt. 07.01.09 has prohibited use of plastic bags.
37. All the witnesses have admitted that the alleged polythene bags were not having the name of shop of the accused or any signature of the accused. The witnesses have also admitted that the alleged polythene bags are easily available in the market.
38. Accordingly, I am satisfied that complainant has failed to prove the allegations against the accused no. 1 and 2 beyond reasonable doubt. Hence, accused are acquitted of allegation leveled against them. Bail bonds stand cancelled. Sureties are discharged.
39. Copy of the judgment be given free of cost to the accused persons. File be consigned to Record Room.
40. The soft copy of the judgment be uploaded on the server with digital signature. PAWAN Digitally signed by PAWAN SINGH SINGH RAJAWAT Date: 2018.11.16 RAJAWAT 14:12:47 +0530 (PAWAN SINGH RAJAWAT) ACMM (Spl Acts): Central District Tis Hazari Courts: Delhi Announced in open Court today i.e 15th November 2018.
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