Delhi District Court
Delhi Pollution Control Committee vs . M/S Bata Shoe Store & Anr. on 24 February, 2010
1
IN .THE COURT OF SH. SHAILENDER MALIK:
METROPOLITAN MAGISTRATE (NORTH)
TIS HAZARI COURTS: DELHI
Delhi Pollution Control Committee Vs. M/s Bata Shoe Store & Anr.
CC No : 222/09
U/s : 15, 16, 19 of Environment Protection Act, 1986
P.S. : Kashmere Gate
JUDGEMENT
S.N. Particulars Details
1 Serial number of the case : 222/09
2 Date of commission of offence : 10/07/09
3 Date of institution of the case : 06/12/05
4 Name of the complainant : Delhi Pollution Control
Committee
Through...
Dr. A.K. Ambasht, Member
Secretary, IV Floor, ISBT
Building, Kashmere Gate,
Delhi-110006.
5 Name of accused, parentage & : 1. M/s Bata Shoe Store,
address 1369, Sultan Singh Building,
Kashmere Gate-110006.
2. Mr. Mahmud Hasan,
Manager, 1369, Sultan Singh
Building, Kashmere Gate-
110006.
6 Offence complained or proved : 15, 16, 19 of Environment
Protection Act, 1986
7 Plea of the accused : Pleaded not guilty
8 Final Order : Convicted
9 Date of reserve for order : 15/02/10
10 Date of final order : 24/02/10
Judgment:
1. This is a complaint u/s 15, 16 and 19 of "The Environment Protection Act 1986" (herein after refer to as Act) filed by Delhi CC No. 222/09 DPCC V/s M/s Bata Shoe Store 2 Pollution Control Committee (herein after refer to as DPCC) through its member secretary. It is stated that DR. A. K. Ambasht, Member Secretary DPCC is authorized to sign and initiate the prosecution as per the notification Dt. 16.4.87 issued by Central Govt. It is stated that Union of India has enacted "The Environment Protection Act 1986" to maintain and control pollution and prevent the environment degradation etc. DPCC is the State body of Delhi for controlling pollution and environmental breaches. Hon'ble Lt. Governor of National Capital Territory of Delhi, in terms of the provisions of section 5 of above said Act as well as in compliance of order of Hon'ble High Court of Delhi in WP (C) NO. 6456/04 titled as "Vinod Kr. Jain and Ors. Vs. Union of India and Ors", issued directions against use sale and storage of all kinds of plastic bags. In this regard notification was issued from the office of Hon'ble Lt. Governor dt. 7.1.09 vide which there is prohibition of use, sale and storage of all kinds of plastic bags in the places mentioned in para 1 of notification dt. 7.1.09 as reproduced in para 4 of the complaint.
2. It is stated that DPCC issued public notices in various newspapers including National Dailies informing public at large regarding contents of notification dt. 7.1.09 for prohibition of use, sale and storage of plastic bags.
3. It is stated that accused no. 1 M/s Bata Shoe Stores is running one unit and accused no. 2 is its Manager and is in charge and responsible for conduct of day-to-day affairs and business of accuse no. 1. On 10.7.09 in compliance of notification dt. 7.1.09 SDM (Sadar Bazar) inspected and took samples of plastic bags used in the premises of accused no. 1 for carrying the sold items. During the inspection it was found that accused persons were CC No. 222/09 DPCC V/s M/s Bata Shoe Store 3 willfully and knowingly violating the prohibition given in notification dt. 7.1.09. It was found that accused no. 1 was operating its business activities of selling shoes/footwears and other accessories by using and storing plastic bags in its premises. SDM (Sadar Bazar) in the presence of other witnesses recorded the statement of accused no. 2. Inspection report of SDM in annexed with the complaint. It is stated that since there has been violation of notification Dt. 7.1.09 and the provisions of section 5 of Act and thus committed offence punishable under section 15 of the above said Act as accused was bound to comply with the notification hence the present complaint.
4. Upon institution of the complaint since complainant was a public servant acting in discharge of his official duty. Therefore, pre-summoning evidence was dispensed with and after considering the averments in the complaint and the documents on the record, this court vide order Dt. 18.8.09 summoned the accused to face trial for offence u/c 15 & 16 of the Environment Protection Act.
5. Upon appearance of the accused, he was admitted to bail & complainant was called upon to lead pre-charge evidence. In pre-charge evidence two witnesses were examined. CW 1 was Sh. Pradeep Baijal, SDM who has testified that on 10.7.09 he visited the premises of M/s Bata Shoe situated at 1369, Sultan Singh Building, Kashmere Gate and on general survey to check the use, sale or storage of plastic bags prohibited under the notification dt. 7.1.09. CW1 further says upon inspection he met with accused no. 2 Mohamood Hassan and it was found that shoe boxes with shoes and one plastic bag were being stored and shoes along with their plastic bags and card box were lying in the shop. CW1 further stated that he recorded the statement of Mohamood CC No. 222/09 DPCC V/s M/s Bata Shoe Store 4 Hassan Ex. CW1/A & also seized 5 plastic bags after checking them from card box and seizure memo was prepared which is Ex. CW/B which bears the signatures of CW1 and other witnesses as well as signatures of accused Mohamood Hassan was also obtained at point 'E'. Those plastic bags were sealed in a sealed envelope and were taken out after opening the sealed envelope in court and were proved as Ex. C1 to C5. The formal report submitted to Member Secretary of DPCC was also proved as Ex. CW1/C and report of SDM along with the seizure memo and statement of accused and sealed samples of plastic bags was Ex. CW1/D. CW2 is Dr. A. K. Ambasht who is Member Secretary, DPCC and has testified that upon receipt of report from Sh. Pradeep Baijal, the then SDM, Sadar Bazar, present complaint for offence punishable under Environment Protection Act was filed. CW2 proved the complaint, notification authorizing him to file the complaint and notification dt. 07.01.09 which are Ex. CW2/A to C. The public advertisement is Ex. CW2/D.
6. After considering the pre charge evidence and the material available on the record, this court vide order dt. 23.11.09 found that prima facie case is made out for framing of charge U/s 15/16 read with Section 19 of Environment Protection Act, 1986 and framed the charge accordingly, to which accused pleaded not guilty and claimed trial.
7. In post-notice evidence complainant has examined as many as 4 witnesses. CW1 is Member Secretary, A. K. Ambasht who has stated the same facts and proved same documents which he has proved in his pre-charge evidence. CW2 is Santosh Kumar, Tehsildar cum Executive Magistrate, who has testified that on 10.07.09 he along with SDM, Sadar Bazar and officer Sh. Vinod Kumar went to M/s Bata Shoe situated at Sultan Singh Building, CC No. 222/09 DPCC V/s M/s Bata Shoe Store 5 Kashmere Gate and on general survey of the shop it was found that plastic bags were being used in contravention of notification dated 07.01.09. CW2 further says at that time they found that shoe boxes with shoes and one plastic bag were being stored. SDM recorded the statement of Mohamood Hassan and seized 5 plastic bags. Seizure Memo is Ex. CW1/B. CW3 is Vinod Kumar who has also corroborated the evidence of CW2 and has testified that he was along with SDM, Sadar Bazar and Sh. Santosh Kumar, visited M/s Bata Shoe situated at Sultan Singh Building, Kashmere Gate where they found use of plastic bags in contravention of notification dated 07.01.09.
8. CW4 is Pradeep Baijal, SDM who has testified the same facts in his examination in chief which he has testified in his pre- charge evidence. All the above said witnesses were duly cross examined. The relevant portion of cross examination will be discussed little later.
9. Upon completion of post-charge evidence, all the incriminating evidence were put to the accused in the statement of accused recorded in terms of provisions of Section 281/313 Cr.P.C. wherein accused Mohamood Hassan has denied the evidence and has taken plea that he has been falsely implicated in this case and plastic bags were taken from the store where old shoe bags were kept and they are otherwise using cloth bags.
10. In defence accused has examined one witness DW1 Raj Kumar, who has testified that he is also working in Bata Shoe India Ltd., Kashmere Gate since 1993 and on 10.07.09 he was on duty along with his Manager Mohamood Hassan. DW1 further says that at about 7:00-7:15 PM 4-5 persons came to the shop and they went to the cash counter and informed that they want to CC No. 222/09 DPCC V/s M/s Bata Shoe Store 6 carry on some checking of plastic bags. DW1 says that at that time beside him and his Manager some staff members were also working at the shop and the above said 4-5 persons made the checking but they could not find anything there. Then those people went to the store room on the back side of the shop and they started checking there and from where old stock and plastic bags were recovered. There must be 6-7 plastic bags lying there and those bags were taken into possession and seized by them.
11. No other witness was examined in defence.
12. I have heard the counsel for the complainant, DPCC and the counsel for the accused. I have also gone through the written arguments filed on behalf of the accused. Section 5 the Environment (Protection) Act, 1986 provides regarding power to give directions, it reads as "notwithstanding anything contained in any other law but subject to the provisions of this act, the central government may, in the exercise of its powers and performance of its functions under this act, issue directions in writing to any person, officer or any authority and such person, officer or authority shall be bound to comply with such directions.
Explanation.--For the avoidance of doubts, it is hereby declared that the power to issue directions under this section includes the power to direct--
(a) the closure, prohibition or regulation of any industry, operation or process; or
(b) stoppage or regulation of the supply of electricity or water or any other service
13. It is under this section Hon'ble Lt. Governor of National Capital Territory of Delhi issued notification Dt. 7-01-09. Now it CC No. 222/09 DPCC V/s M/s Bata Shoe Store 7 is necessary to reproduce relevant extract of above said notification which reads as: "1. That the use, sale & storage of all kinds of plastic bags shall be forbidden in respect of the following places in the National Capital Territory of Delhi, namely, (a). Five Star and Four Star hotels, (b). Hospitals with 100 or more beds except for the use of plastic bags as prescribed under Bio Medical Waste (Management & Handling) Rules, 1998, (c). All restaurants and eating places having seating capacity of more than 50 seats, (d). All fruit and vegetable outlets of Mother Dairy,
(e). All liquor vends, (f). All shopping Malls, (g). All shops in main markets and local shopping centers, (h). All retail and wholesale outlets of Branded chain of outlets selling different consumer products including fruits and vegetables." In this context it is also necessary to refer to judgment of Hon' able High Court of Delhi in "Vinod Kumar Jain Vs. Union of India & Othrs." in WP (C) 6456/04 decided on 07.08.08 which is even relied upon by counsel for accused. It appears that a writ petition was filed in public interest regarding failure of civic agencies regarding solid waste management. And directions was sought for upgrading the waste management system and effective means to curb the tendency to generate needless waste by strict legislative measures and also by education people at large about hazards to environment arising out of absence of scientific waste management program. It was also prayed before Hon'ble High Court that directions be given to the state government for appropriate amendment in "Delhi Plastic Bags (Manufacture, sale and usage) and None-biodegradeable Garbage (Control) Act, 2000" as well as rules framed there under. So as to ensure that provisions can apply not only to prohibition but also to manufacture and sale of all plastic bags in Union Territory of Delhi. Hon'ble High Court of Delhi considering the serious hazards to the environment because of use of plastic bags in CC No. 222/09 DPCC V/s M/s Bata Shoe Store 8 Delhi took up the matter and constituted one committee headed by former Judge of High Court for giving recommendations regarding whether degradeable / biodegradeable bags are an alternative or whether bags made of other material can substitute plastic bags as well as to give recommendations as to what steps can be taken to check health and environment hazards arising out of use of plastic bags in Delhi. Hon'ble High Court upon considering the report given by the committee accepted most of its suggestions and disposed off the writ petition with the directions that Govt. of NCT of Delhi will issue proper notification for fixing the minimum thickness of the plastic bags to 40 microns as well as Govt. of Delhi (DPCC) and other civic agencies will take immediate steps for closure of unlicensed recycling units operating in non-confirming areas. It was also directed that Govt. of NCT of Delhi will issue notification forbidding use of plastic bags in main market as well as at local shopping centers keeping in view the suggestions given by the committee.
14. Therefore in this background above mentioned notification was issued to minimize atmospheric pollution and contamination by the use and unauthorized recycling of plastic bags in Delhi. It is violation of prohibition of notification issued under section 5 of Act and in compliance of the orders dated 07.08.08 of Hon'ble High Court attracts penal liability under section 15 of Act which reads as "(1) Whoever fails to comply with or contravenes any of the provisions of this Act, or the rules made or orders or directions issued there under, shall, in respect of each such failure or contravention, be punishable with imprisonment for a term which may extend to five years or with fine which may extend to one lakh rupees, or with both, and in case the failure or contravention continues, with additional fine CC No. 222/09 DPCC V/s M/s Bata Shoe Store 9 which may extend to five thousand rupees for every day during which such failure or contravention continues after the conviction for the first such failure or contravention. (2) If the failure or contravention referred to in sub-section (1) continues beyond a period of one year after the date of conviction, the offender shall be punishable with imprisonment for a term which may extend to seven years.
15. So it is clear from above discussion that contravention of provision of Act or rules made or orders or directions issued there under is punishable as provided above. Coming now to the facts of the case, in the present case question to be considered is whether the notification issued U/s 5 of Act has been violated of not, because the notification once issued is a command of law. In this regard there is evidence of CW2 to CW4 who have consistently stated that SDM, Sadar Bazar along with CW2 Santosh Kumar and CW3 Vinod Kumar were on general survey regarding contravention of notification dated 07.01.09. It is also admitted factual position that above said officers visited M/s Bata Shoe Store, situated at Kashmere Gate. There is also no dispute that they conducted the checking to see if plastic bags are being used in the premises of M/s Bata Shoe Store or not and CW4 Sh. Pradeep Baijal has specifically stated that they found the shoe boxes with shoes and one plastic bag were being stored and shoe along with plastic bag in a box were lying in the shop. CW4 Sh. Pradeep Baijal, SDM recorded the statement of accused Mahmood Hassan, which is Ex. CW1/A and also took five plastic bags by seizure memo Ex. CW1/B. In complete trail of the matter fact that SDM CW4 recorded the statement of accused Ex. CW1/A and took into possession plastic bags vide Ex. CW1/B is not disputed. It is argued on behalf of the accused that infact there were only five plastic bags in the shop at the relevant time, CC No. 222/09 DPCC V/s M/s Bata Shoe Store 10 because witness CW4 has stated that said five plastic bags were taken. I do not agree with the above argument on behalf of the accused, because from the post-notice evidence of CW2 to CW4 it would be evident that witnesses have consistently stated that there were plastic bags in the boxes of shoe and five plastic bags were taken as sample vide seizure memo Ex. CW1/B.
16. It is argued that plastic bags Ex. C1 to C5 were made of virgin plastic with thickness of 50 microns and prosecution has failed to put on record any evidence that plastic bags seized from the shop of the accused were of less thickness and no lab test was conducted to prove the same. Again I find that above submission is not sustainable in law because if we go through the notification Ex. CW2/C what is prohibited is all kinds of plastic bags. There is no classification regarding plastic bags that if there are plastic bags of virgin plastic or plastic bag of thickness of 50 microns, then there is no violation. In fact any kind of plastic bag is prohibited to be stored or sold under the notification. It is a different aspect that in the judgment of Hon'ble High Court, it was observed that the plastic bags must be more then 40 microns, but law of land is different in the shape of notification Ex. CW2/C. Thus there was no requirement on the part of DPCC to place on record any lab test.
17. It is further argued that notification dated 07.01.09 has not been proved to be put to the notice of general public. In this regard it is sufficient to observe that notification issued either by State Government or by Central Government, court is bound to take judicial notice of such gazette notification. Reference in this regard can be given of judgment in "State V/s V. Penadeen" AIR 1971 Ker. 193. In this regard reference can also be given of judgment in "State V/s Ram Charan" AIR 1977 MP 68 wherein it CC No. 222/09 DPCC V/s M/s Bata Shoe Store 11 was held that all statutory orders and notification legislative in nature amount to law. Reference can also be given judgment in 1971 Cr.LJ 406 and 1970 Cr.LJ 1724. Thus in respect of notification, there is no requirement of formal poof in view of the provisions of Section 57 of Indian Evidence Act.
18. Matter can be appreciated from another angle, it is to note that on behalf of defence also one witness DW1 Raj Kumar was examined, who stated that 4/5 persons had come to their shop for checking of plastic bags. DW1 was when cross-examined, he admitted that plastic bags were being used in the boxes of shoes, in which beside shoes one plastic bag was contained. He also admits that the said carry bag was of plastic carry bag. Thus even in the evidence of DW1, version of DPCC has also been proved. Whereas in the cross-examination of CW1 to CW4 nothing substantive come to render their testimony to be unreliable. Thus, from totality of facts and the evidence on the record, I find that DPCC has proved the case against the accused and accordingly, I hold the accused guilty for offence U/s 15 of Act. Let he be heard on the point of sentence on tomorrow i.e. 25.02.10.
Announced in open
court on 24.02.10 (Shailender Malik)
Metropolitan Magistrate (North)
Tis Hazari Courts, Delhi
CC No. 222/09 DPCC V/s M/s Bata Shoe Store
12
Delhi Pollution Control Committee Vs. M/s Bata Shoe Store & Anr.
CC No : 222/09 U/s : 15, 16, 19 of Environment Protection Act, 1986 P.S. : Kashmere Gate 02.03.10 Order on point of Sentence Present: Sh. Narander Pal Singh, Counsel for the complainant Convict with counsel Sh. Arun Aggarwal
I have heard Ld. Counsel for the complainant and Ld. Counsel for the convict on point of sentence. It is argued by the counsel for the convict that a sympathetic approach may be taken while passing the sentence.
Having heard the submission at bar and having gone through the record carefully.
High level of atmospheric pollution in NCR of Delhi is something known to all. Atmospheric pollution is because of many factors and reasons. It is duty of we all to contribute and try to provide for every citizen a pollution free environment. There are land fill sites packed with mixture of non-biodegradeable and toxic waste resulting into contamination of ground water and even leads to atmospheric pollution.
One of the basic cause for environmental pollution in the NCR of Delhi is excessive production and consumption of non-biodegradeable material including plastic bags as well as unauthorized recycling procedure of it leading to various environmental hazards. It is know to all that plastic wastes when disposed off still remain in the environment being non-
biodegradeable and thus because of it there is a constant threat to CC No. 222/09 DPCC V/s M/s Bata Shoe Store 13 environment as well as health risks to the citizens. Every day we see in the NCR of Delhi excessive use of plastic bags and plastic waste being thrown to streams, canals, water bodies or by burning of plastic waste which cause even more problems to the environment. This is because of lack of awareness among the citizens regarding environmental hazards by use of plastic bags. Therefore, it is equal duty of all the citizens that we should prevent littering of plastic bags packaged beverages, water bottles, plastic plates so that we can avoid the environmental degradation because of excessive use of plastic bags. It is to note that when any plastic burns many deadly chemicals goes to the environment including dioxin which is main pollutant to cause cancer. Moreover, once there is a law in the shape of notification dated 07.01.09 vide which there is prohibition for use, distribution or storage of plastic bags, it is required that every citizen of NCR of Delhi should understand the adverse effects because of use of plastic bags to the environment and to the citizens themselves.
In view of the fact that the offence is against the environment therefore, a good example is required to be set, thus keeping in view the totality of facts and the seriousness of the offence, I award the sentence of imprisonment to the accused no. 2 till rising of the court as well as the fine to the both accused to be extent of Rs. 50,000/- each.
Fine amount paid. It is being made clear that Rs. 1 lac so collected by way of fine will be provided to Delhi Pollution Control Committee.
DPCC being one of the statutory body of State Government responsible CC No. 222/09 DPCC V/s M/s Bata Shoe Store 14 for giving due effects of law of environment Protection Act. It is directed that said sum of Rs. 1 lac will be used by DPCC for distributing bio-
degradeable bags which are environment friendly to maximum number of small shop keepers so that there should be a good amount of awareness among them for necessity of using bio-degradeable bags instead of plastic bags for better environment in the area of NCR of Delhi.
It is also directed that DPCC will also distribute publicity material among small shop keepers and other persons propagating the statutory requirement of not using the plastic bags as well as the social responsibility for avoiding the use of such plastic bags. File be consigned to record room after compliance.
Announced in open
court on 02.03.10 (Shailender Malik)
Metropolitan Magistrate (North)
Tis Hazari Courts, Delhi
CC No. 222/09 DPCC V/s M/s Bata Shoe Store