Madras High Court
A.Mahendran vs M.Dwarakanath on 25 March, 2021
Author: A.D.Jagadish Chandira
Bench: A.D.Jagadish Chandira
Crl.O.P.No.2532 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 25.03.2021
CORAM :
THE HON'BLE MR. JUSTICE A.D.JAGADISH CHANDIRA
Crl.O.P.No.2532 of 2015
and
M.P.No.1 of 2015
M/s.Abirami Polypacks
No.243 & 245 Rangapillai Street
Puducherry
Represented by its Partners
1.A.Mahendran
S/o.Athamanathan
2.Saravanan
S/o.Ramalingam ... Petitioners
Vs.
M.Dwarakanath
Member Secretary
Puducherry Pollution Control Committee
Anna Nagar
Puducherry-5 ... Respondent
PRAYER: Criminal Original Petition is filed under Section 482 of
Criminal Procedure Code to call for the records relating to the complaint
in C.C.No.27 of 2014 on the file of the Chief Judicial Magistrate,
Pondicherry and quash the same as far as the petitioners are concerned.
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Crl.O.P.No.2532 of 2015
For Petitioners : Mr.P.Dinesh Kumar
For Respondent : Ms.A.Sathiya Bama
Standing Counsel (PPCC)
ORDER
(The case has been heard through video conference) Petition has been filed seeking to call for the records relating to the complaint in C.C.No.27 of 2014 on the file of the Chief Judicial Magistrate, Pondicherry and quash the same as far as the petitioners are concerned.
2.The Member Secretary, Puducherry Pollution Control Committee filed a private complaint against the petitioners in C.C.27 of 2014 for the offence under Section 190(1) a of Cr.P.C. r/w. Section 19 of Environment (Protection) Act, 1986 for contravention of Section 5 of the Environment (Protection) Act, 1986 r/w Rule 5 of Plastic Waste (Management & Handling) Rules, 2011.
3.The brief facts of the complaint:
The complainant is is the person authorised to file the 2/26 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.2532 of 2015 complaint u/s.19 of the Environment (Protection) Act, 1986. The complainant is the Member Secretary of Puducherry Pollution Control Committee, which is the State Pollution Control Body of Puducherry constituted for the purpose of controlling pollution and environmental breaches etc., and he is also the coordinator to implement G.O. Ms.No.2/Envt/2009 dated 09.12.2009 of the Government of Puducherry to ban the thin plastic carry bags. Further, in exercise of its power, conferred under Sections 3, 6 and 25 of the Environment (Protection) Act, 1986 and in suppression of the Recycled Plastics Manufacture and Usage Rules, 1999, the Government of India notified the rules called as Plastic Waste (Management and Handling) Rules, 2011 and issued Notification No.S.O.1527 (E) dated 02.07.2011, which was published in the official Gazettee (hereinafter referred to as Rules 2011).
As per Rule 3 of the Rules 2011
a) ”Carry Bags” means bags made from any plastic material, used for the purpose of carrying or dispensing commodities but do not include bags that constitute or form an integral part of the packaging in which goods are sealed prior to use.
b) no person shall manufacture, stock, distribute or 3/26 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.2532 of 2015 sell any carry bag made of virgin or recycled or compostable plastic, which is less than 40 microns in thickness.
Further, the Government of Puducherry in exercise of the powers conferred under Section 5 of the Environment (Protection) Act, 1986 vide Government Order in G.O.Ms.No.20/Envt/2009, dated 09.12.2009, directed that no person including shopkeeper, vendor, wholesaler, retailer or trader shall use, sell or store polythene or plastic carry bags of thickness 50 microns or below of size less than 8 x 12 inches, disposal cups and plates of thickness 50 microns or below whatsoever for supply of goods in the Union Territory of Puducherry.
Further, the Puducherry Pollution Control Committee in collaboration with the Departments of Local Administration, Revenue, Education and NGO's conducted various awareness programmes about banning of sale, holding stocks and usage of plastic articles using less than 51 micron thickness. Hand bills about the Notification were also distributed to the commercial establishments. In compliance of the Rules and Notification, inspections were carried out by the officials of DSTE. 4/26 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.2532 of 2015 On 07.05.2010, during such inspection, the Inspection team consisting of the Member Secretary, Environmental Engineer and Junior Scientific Assistant of the Puducherry Pollution Control Committee conducted inspection at the premises of the accused and the accused were found in stocking and selling of plastic carry bags of thickness of 50 microns or below, thereby, a show cause notice was issued to the accused, seeking for explanation and to appear before the Member Secretary on 19.05.2010. The accused have submitted their written statement stating that they would not involve in stocking and selling of banned plastic articles in future and requested them to drop the further legal proceedings.
While so, on 08.08.2013, the complainant carried out the 2nd inspection with their team consisting of Thiru.K.Kalamegam, Junior Engineer of the Department of Science and Technology and Environment and M.S.Ramesh, Tahsildar, Puducherry Taluk, Revenue Department, the accused No.2 was found violating the Provisions of Plastic Rules, 2011 and the notification of Government of Puducherry dated 09.12.2009, by storing and selling plastic carry bags of thickness lesser 5/26 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.2532 of 2015 than 51 microns. Thereafter, 14 bundles of the above said materials have been seized from the accused in the presence of witnesses viz. V.Mohandass, Assistant Engineer Puducherry Municipality and V.Sivakumar, Village Administrative Officer, Revenue Department and it was recovered the same under seizure mahazar. Inspection report was prepared and samples were taken from the premises of the accused and sent it for analysis as per Section 11 of the Environment (Protection) Act, 1986 to the CVR Lab Pvt. Ltd., Chennai recognzsed by the Ministry of Environment & Forest, Government of India u/s.12 of the Environment (Protection) Act, 1986.
As per the analysis report dated 17.09.2013, the thickness of the seized carry bags are in the range of 29.75 – 41.2 micron. The accused being fully aware that the storage and sale of the polythene / plastic bags is forbidden and banned, had willfully violated sub rule 5 of Plastic Waste (Management & Handling) Rules, 2011 and the order of the Government of Puducherry and also violated the provisions of law to make unlawful gain, thereby, committed offences punishable u/s.15 of the Environment (Protection) Act, 1986. Hence the complaint. 6/26 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.2532 of 2015
4.The present petition has been filed seeking to quash the proceedings initiated against the petitioners.
5.Mr.P.Dinesh Kumar, the learned counsel appearing for the petitioner would submit that the petitioner is a firm engaged in the business of sale of Tarpaulins and packaging materials. Whileso, inspection was conducted on 08.08.2013 at their premises by a team of officials consisting of the Tahsildar and Junior Engineer of the Puducherry Pollution Control Committee and samples were taken on the same day. He would submit that as per the complaint, the samples are stated to have been sent to an authorised / recognised laboratory viz. CVR Lab Pvt. Ltd., Chennai and the report has been obtained from the authorised laboratory. He would submit that the entire proceedings of seizure, testing the samples and the results obtained are in gross violation of Sections 10, 11 and 12 of the Environment (Protection) Act, 1986 and thereby the entire proceeding is vitiated. He would submit that as per Section 10 (i)(c) of the Environment (Protection) Act, 1986, only the persons empowered by the Central Government shall have the right to 7/26 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.2532 of 2015 enter any place for the purpose of conducting examination, search or seizure. The Ministry of Environment and Forests by Notification in S.O.83(E) dated 16.02.1987 had listed the ranks of the officers Authorised to conduct search and seizure and as per serial No.62 in respect of a Union Territory, the Member Secretary of the Pollution Control Committee in respect of such Union Territory is the person authorised to conduct inspection, search and seizure. In this case the inspection was conducted and seizure was effected by an officer in the rank of a Junior Engineer, who is not empowered or authorised officer to conduct inspection, search and seizure and thereby the entire inspection proceedings are perse illegal and vitiates trial.
6.Learned counsel would further submit that the sample taken from the petitioners had not been tested by a recognised / authorised lab thereby making the report inadmissible in law. As per Section 11 (3) (4), the sample has to be sent to the laboratory established or recognized by the Central Government. He would submit further that as per the complaint, the sample had been sent to one CVR Labs Pvt. Ltd., on 27.08.2013 and report had been obtained from the Laboratory on 8/26 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.2532 of 2015 17.09.2013 and that on the date of testing and on the date of issuance of the Analysis report, the said CVR Labs Pvt. Ltd., was not having any recognition as required under Section 12 of the Environment (Protection) Act, 1986 and thereby the report obtained from an unauthorised lab is inadmissible in law and thereby the private complaint and the further proceedings based on illegal inspection, seizure and inadmissible reports are illegal and thereby the proceedings are nothing but mere abuse of process of law and he would seek to quash the entire proceedings.
7.In support of his contentions, the learned counsel for the petitioners would rely on the decision of the Hon'ble Apex Court in Roy V.D. V. State of Kerala reported in (2000) 8 SCC 590.
8.Per contra, Ms.A.Sathiya Bama, learned Standing Counsel, (Puducherry Pollution Control Committee) would submit that the Member Secretary is an IAS Officer and he cannot be expected to conduct inspection in all the factories and thereby he had delegated the Junior Engineer to conduct inspection on the particular day. She would further submit that the Junior Engineer had conducted inspection on the 9/26 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.2532 of 2015 oral instructions of the Member Secretar. She would further submit that in so far as the recognition granted to CVR Labs Pvt. Ltd., is concerned, the CVR Labs Pvt. Ltd., was originally operating in the name of M/s.C- Tech Environmental Labs Pvt. Ltd., located at No.10, Bharathiar Street, Ramakrishna Nagar, Chennai 600 087 and that M/s.C-Tech Environmental Labs Pvt. Ltd., was a notified lab under the Notification of the Ministry of Environment and Forests dated 13.02.2012 in S.O.264(E) and that the said M/s.C-Tech Environmental Labs Pvt. Ltd., was given recognition from 13.02.2012 to 12.02.2017 and thereafter the name of the lab was changed to CVR Labs Pvt. Ltd., and necessary certificates were also issued by the Registrar of Companies on 13.11.2012. Thereafter, the lab was shifted to Dignity Centre, II Floor, New No.2/9, Old No.21 Abdul Razack Street, Saidapet, Chennai-600015, where it is presently functioning and necessary approvals have also been obtained for the lab and on the date of receipt of sample i.e. on 27.08.2013 and on the date of report i.e. on 17.09.2013, the lab was a recognized lab, as per Section 12 of the Environment (Protection) Act, 1986. The learned counsel would further submit the grounds raised are issues for trial and that the proceedings cannot be quashed. 10/26 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.2532 of 2015
9.In reply, the learned counsel for the petitioner would submit that as per Section 12 of the Environment (Protection) Act, 1986, which refers to recognition of Environment Lab under the Environment (Protection) Act, 1986, whenever the lab is shifted to a different location, necessary permission and fresh approvals have to be obtained for recognition of the lab under the Environment (Protection) Act, 1986. The Ministry of Environment & Forest has issued guidelines for recognition of Environmental lab under Environment (Protection) Act, 1986 and the powers delegated for recognition of labs are prescribed under the guideline 6.0 in Gazette Notification S.O.145 (E) dated 21.02.1991 and that only when the guidelines prescribed are complied with, a fresh recognition can be issued by the appropriate authority. In this case, admittedly after the lab was shifted from its original place, the lab had applied for fresh approval and notification. Even as per the communication No.Q.15018/14/2008-CPW dated 26.11.2013, it had been stated that necessary notification with regard to approval of the Government of India, Ministry of Environment and Forests will be issued in due course, thereby, making it clear that the lab was not having proper recognition and thereby on the date of drawing of sample i.e. on 11/26 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.2532 of 2015 27.08.2013 and on the date of report i.e. 17.09.2013, the lab was not a recognised one and thereby, the report obtained from the unrecognized lab cannot be admissible in evidence, thereby the further proceedings should be quashed. The learned counsel for the petitioners would further submit that the documents relied on by the petitioners are Government communications, notifications and orders and that they are materials of sterling quality and the Court can rely upon them for deciding the quash petition.
10.Heard the counsels, perused the materials placed on record.
11.In this case, admittedly the inspection had been conducted on 08.08.2013 in the premises of the accused and that the said inspection was conducted by the Junior Engineer and the samples were sent to the CVR Lab Pvt. Ltd., and the same was received by them on 27.08.2013 and that the report had been given by the lab on 17.09.2013.
12.At this juncture, it is apposite to refer to the relevant provisions of the Environment (Protection) Act, 1986.
“Section 10. POWERS OF ENTRY AND INSPECTION.-.
(1) Subject to the provisions of this section, any person 12/26 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.2532 of 2015 empowered by the Central Government in this behalf shall have a right to enter, at all reasonable times with such assistance as he considers necessary, any place—
(a) for the purpose of performing any of the functions of the Central Government 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 and testing any equipment, industrial plant, record, register, document or any other material object or for conducting a search of any building 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 equipment, industrial plant, record, register, document or other material object if he has reasons to believe that it may furnish evidence of the commission of an offence punishable under this Act or the rules made thereunder or that such seizure is necessary to prevent or mitigate environmental pollution.
(2) Every person carrying on any industry, operation or process or handling any hazardous substance shall be bound to render all assistance to the person empowered by the Central Government under sub-section (1) for carrying out the functions under that sub-section and if he fails to do so without any reasonable cause or 13/26 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.2532 of 2015 excuse, he shall be guilty of an offence under this Act.
(3) If any person wilfully delays or obstructs any person empowered by the Central Government under sub-section (1) in the performance of his functions, he shall be guilty of an offence under this Act.
(4) the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), or, in relation to the State of Jammu and Kashmir, or any area in which that Code is not in force, the provisions of any corresponding law in force in that State or area shall, so far as may be, apply to any search or seizure under this section as they apply to any search or seizure made under the authority of a warrant issued under section 94 of the said Code or, as the case may be, under the corresponding provision of the said law.
Section 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 or 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.
14/26 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.2532 of 2015 (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 recognised by the 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 wilfully 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 refuses to sign the marked and 15/26 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.2532 of 2015 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 recognised under section 12 and such person shall inform the Government Analyst appointed or recognised under section 13 in writing, about the wilful absence of the occupier or his agent or person, or, as the case may be, his refusal to sign the container or containers.
Section 12. ENVIRONMENTAL LABORATORIES.-
(1) The Central Government may, by notification in the Official Gazette,—
(a) establish one or more environmental laboratories;
(b) recognise one or more laboratories or institutes as environmental laboratories to carry out the functions entrusted to an environmental laboratory under this Act.
(2)The Central Government may, by notification in the Official Gazette, make rules specifying—
(a) the functions of the environmental laboratory;
(b) the procedure for the submission to the said laboratory of samples of air, water, soil or other substance for analysis or tests, the form of the laboratory report thereon and the fees payable for such report;
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(c) such other matters as may be necessary or expedient to enable that laboratory to carry out its functions.
13.As per Section 10 of the Environment (Protection) Act, 1986, the inspection has to be conducted by any of the person empowered by the Central Government on its behalf and as per the notification of the Ministry of Environment and Forests in S.O.83 (E) dated 16.02.1987, in respect of Puducherry Union Territory the Member Secretary of the Committee is the person empowered and competent to conduct inspection.
14.Further, as per Section 11 (2) of the Environment (Protection) Act, 1986, the analysis report 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.
15.As per Section 12 of the Environment (Protection) Act, 1986, the Central Government by notification is empowered to establish one or more environmental laboratories and recognize one or more 17/26 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.2532 of 2015 laboratories or institutes as environmental laboratories to carry out the functions entrusted to an environmental laboratory.
16.It is the case of the petitioner that on the date of conducting the sample test i.e. on 17.09.2013, the CVR Lab Pvt. Ltd., was not having any recognition. It is stated by the respondent that the lab was formerly called as C-Tech Environmental Labs Pvt. Ltd., and functioning at No.10, Bharathiar Street, Ramakrishna Nagar, Chennai 600087, it was having valid recognition from 13.02.2012 to 12.02.2017 and it was shifted to a different location. Section 25 of the Environment (Protection) Act, 1986 provides for guidelines for recognition of Environmental Laboratories.
(i) the recognised laboratories shall operate from the approved location / address, where it has been granted recognition.
(ii) the proposal for change in location/ site address of laboratory, if any, will require prior permission from the Central Government (for private Section and NGO 18/26 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.2532 of 2015 laboratories) and Central Pollution Control Board (for Government / Semi Government / Autonomous / Public Sector undertakings / Educational institutes / State Pollution Control Board / Pollution Control Committee Laboratories).
(iii) the Central Government may consider and grant permission to the laboratory to perform its functions from the changed location only after inspection, verification of its status duly recommended by Central Pollution Control Board HQs or its Zonal Office or by the concerned State Pollution Control Board / Committee.
Thereby the recognition granted to a recognised lab is location centric and not name centric and hence a fresh recognition has to be obtained whenever the location is changed.
17.Further Notification No.145(E), dated 21st February, 1991 issued under Section 23 of the Environment (Protection) Act, 1986, provides for guidelines and terms and conditions for recognition of Laboratories under the Environment (Protection) Act, 1986. The relevant guidelines and terms and conditions are extracted hereunder:
As per the Gazette Notification No. S.O.145(E), the 19/26 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.2532 of 2015 powers delegated for recognition of the laboratories are as below:
In exercise of the powers conferred under section 23 of the Environment (Protection) Act, 1986 (29 of 1986), the Central Government hereby issue the following orders namely:
1.The Central Government hereby delegates the powers with respect to grant of recognition to laboratories or institutes as environmental laboratories and to appoint or recognize Analysts as Government Analysts, as conferred by clause (b) of Sub-section (i) of Section 12 and section 13 respectively of the Environment (Protection) Act, 1986 to the Central Pollution Control Board.
2,Recognition of private laboratories under clause (b) of sub-section (i) of section 12 of the Environment (Protection) Act, 1986 as well as recognition of their Analysts as Government Analysts under section 13 of the Environment (Protection) Act, 1986, will continue to be done by the Central Government. Terms & Conditions for Based on joint inspection report, if the laboratory meets Recognition of laboratory the minimum skilled manpower requirement, minimum space requirement, minimum requirement of basic instrument / equipment and minimum analytical capabilities, it will be recommended by the joint inspection team for consideration of recognition. The recommended laboratories will have to accept Terms & Conditions as specified in Annexure-III of the guidelines. 20/26 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.2532 of 2015 TERMS & CONDITIONS FOR RECOGNITION OF LABORATORIES UNDER THE ENVIRONMENT (PROTECTION) ACT, 1986 The following terms and conditions shall be observed for recognition of laboratories under Section 12 (1) (b) of the Environment (Protection) Act, 1986. 1. 2.
3 ....
25.(i) the recognised laboratories shall operate from the approved location / address, where it has been granted recognition.
(ii) the proposal for change in location/ site address of laboratory, if any, will require prior permission from the Central Government (for private Section and NGO laboratories) and Central Pollution Control Board (for Government / Semi Government / Autonomous / Public Sector undertakings / Educational institutes / State Pollution Control Board / Pollution Control Committee Laboratories).
(iii) the Central Government may consider and grant permission to the laboratory to perform its functions from the changed location only after inspection, verification of its status duly recommended by Central Pollution Control Board HQs or its Zonal Office or by the concerned State Pollution Control Board / Committee.
18.Admittedly in this case, M/s.CVR Labs Pvt. Limited., was originally operating in the name of M/s.C-Tech Environmental Labs Pvt. Ltd., located at No.10, Bharathiar Street, Ramakrishna Nagar, Chennai 21/26 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.2532 of 2015 600 087 and it was having recognition from 13.02.2012 to 12.02.2017 and thereafter the name of the Lab has been changed to M/s.CVR Labs Pvt. Ltd., and the lab was shifted to Dignity Centre, II Floor, New No.2/9, Old No.21 Abdul Razack Street, Saidapet, Chennai-600015. As per the guidelines and terms and conditions, the recognition granted is location centric and whenever a lab is shifted to different location, fresh recognition has to be obtained and based on the application, necessary inspection has to be conducted by the authorised officials and only after inspection, fresh recognition could be given at a different location, based on which, a fresh notification will be issued.
19.In this case, even as per the communication received from the Government of India, Ministry of Environment & Forests, dated 26.11.2013 in Letter No.Q-15018/14/2008-CPW, addressed to M/s.CVR Labs Pvt. Ltd., it has been stated that necessary notification in this regard will be issued in due course, thereby implying that on 26.11.2013, M/s.CVR Labs Pvt. Ltd., was not notified and it was not having necessary recognition and approval. Only on 01.05.2014, necessary recognition and approval has been given to M/s.CVR Labs Pvt. Ltd,,. 22/26 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.2532 of 2015 vide notification of Government of India, in Ministry of Environment & Forests dated 01.05.2014 in S.O.1205(E) and thereby on the date of inspection and on the date of analysis of the sample M/s.CVR Labs Pvt. Ltd., was not having due recognition and approval as per Section 12 of the Act and as per Section 11(2), the result of any analysis of sample would not be admissible in evidence unless the provisions of sub Section 3 & 4 of Section 11 are complied with. Since on the date of sample and on the date of analysis M/s.CVR Labs Pvt. Ltd., was not recognised under Section 12 of the Environment (Protection) Act, 1986 and thereby the report of analysis is inadmissible in evidence.
20.Further, in this case the inspection was carried on by the Junior Engineer as admitted by the learned counsel for the respondent. The inspection has been conducted only on oral instructions of the Member Secretary of the Puducherry Pollution Control Committee. Admittedly no legal delegation of powers had been given to the Junior Engineer to conduct the inspection thereby making the inspection, seizure and further analysis vitiated.
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21.At this juncture, it will be useful to refer to the judgment of the Hon'ble Apex Court in Roy V.D. V. State of Kerala reported in (2000) 8 SCC 590 “16. Now, it is plain that no officer other than an empowered officer can resort to Section 41(2) or exercise powers under Section 42(1) of the NDPS Act or make a complaint under clause (d) of sub-section (1) of Section 36-A of the NDPS Act. It follows that any collection of materials, detention or arrest of a person or search of a building or conveyance or seizure effected by an officer not being an empowered officer or an authorised officer under Section 41(2) of the NDPS Act, lacks sanction of law and is inherently illegal and as such the same cannot form the basis of a proceeding in respect of offences under Chapter IV of the NDPS Act and use of such a material by the prosecution vitiates the trial.
17. To the same effect is the view expressed by this Court in State of Punjab v. Balbir Singh [(1994) 3 SCC 299 : 1994 SCC (Cri) 634] . In para 13 Jayachandra Reddy, J. speaking for the Court observed thus: (SCC p. 313) “13. Therefore, if an arrest or search contemplated under Sections 41 and 42 is made under a warrant issued by any other Magistrate or is made by any officer not empowered or authorised, it would per se be illegal and would affect the prosecution case and consequently vitiate the trial.” 24/26 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.2532 of 2015
18. It is well settled that the power under Section 482 CrPC has to be exercised by the High Court, inter alia, to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Where criminal proceedings are initiated based on illicit material collected on search and arrest which are per se illegal and vitiate not only a conviction and sentence based on such material but also the trial itself, the proceedings cannot be allowed to go on as it cannot but amount to abuse of the process of the court; in such a case not quashing the proceedings would perpetuate abuse of the process of the court resulting in great hardship and injustice to the accused. In our opinion, exercise of power under Section 482 CrPC to quash proceedings in a case like the one on hand, would indeed secure the ends of justice.”
22.As stated above, when the criminal proceedings are initiated based on a illegal search and seizure by any person other than an empowered or authorised officer and based on inadmissible material the proceedings lack sanction of law and is inherently illegal thereby vitiating trial. In this case, the search had been conducted by the Junior Engineer who is not an empowered or authorised officer. Further, the analysis report obtained by the complainant from an unrecognized Environment lab is also not admissible in law and thereby the entire proceedings shall stand vitiated.
A.D.JAGADISH CHANDIRA, J.
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23.In view of the above, the Criminal Original Petition stands allowed and the proceedings pending on the file of the learned Chief Judicial Magistrate, Pondicherry in C.C.No.27 of 2014 stands quashed. Consequently, the connected miscellaneous petition is closed.
25.03.2021 kas Index : yes / no Internet : yes / no Speaking / Non Speaking order To
1.Member Secretary Puducherry Pollution Control Committee Anna Nagar Puducherry-5
2.The Public Prosecutor High Court of Madras Chennai 600 104 Crl.O.P.No.2532 of 2015 and M.P.No.1 of 2015 26/26 https://www.mhc.tn.gov.in/judis/