Delhi District Court
Sdm Vivek Vihar vs Surjeet Singh Virdhi on 14 July, 2015
IN THE COURT OF SH. PRITAM SINGH
ADDL CHIEF METROPOLITAN MAGISTRATE (Spl. Acts) CENTRAL
TIS HAZARI COURTS: DELHI
SDM Vivek Vihar vs Surjeet Singh Virdhi
U/s 15 & 19 of Environment (Protection) Act, 1986
CC No.04/06
JUDGMENT
(a) Serial no. of the case : 02401R01475720032013
(b) Date of commission of offence: November, 2012
(c)Name of complainant : Ms. Usha Chaturvedi,
SDM Vivek Vihar,
District Shahdara, Delhi
(d) Name, parentage, residence: Surjeet Singh Virdhi
s/o Late Sh. Harnaik Singh Virdhi
r/o 64, Shanti Vihar, Delhi
(e) Offence complained of/ proved : U/s 15 & 19 of Environment (Protection) Act, 1986
(f) Plea of accused : Pleaded not guilty.
(g) Final order : Acquitted
(h) Date of such order : 14.07.2015
Date of Institution : 20.03.2013
Arguments heard/order reserved: 13.07.2015
Date of Judgment: 14.07.2015
Brief statement of the reasons for the decision:
1. The Complainant Ms. Usha Chaturvedi the then SDM (Vivek Vihar), Distt. Shahdara, Delhi, filed the present complaint u/s 15 and 19 of Environment (Protection) Act, 1986 (for short the 'Act') against the accused.
2. Succinctly, the facts of the case are that on 05.11.2012, the complainant received an information regarding illegal ground water bore well being done at SDM Vivek Vihar vs Surjeet Singh Virdhi U/s 15 & 19 of Environment (Protection) Act, 1986 1 of 11 64, Shanti Vihar, Delhi, she along with her staff conducted raid in the said premises in presence of police officials and concerned Junior Engineer of Delhi Jal Board and a newly installed groundwater bore was found there in the said premises. Accused is stated to be the owner of the said premises. Accused was given an opportunity to show/produce any oder of competent authority for digging the borewell at his premises but he failed. Then the complainant exercised the powers conferred on her u/s 5 of the Environment (Protection) Act, 1986 and passed an order of sealing of the bore well, disconnection of the water and electricity of the said premises. Site was photographed, a kalandra Ex.CW3/1 was got registered against the accused for violation of the Act and after completion of the investigation, present complaint was filed against the accused.
3. On filing of the complaint, accused was summoned for the alleged offence. On appearance of the accused, copy of complaint and of documents supplied to him and matter was fixed for precharge evidence.
4. In precharge evidence, the prosecution examined the complainant Ms. Usha Chaturvedi as CW1, HC Mukul as CW2 and WSI Gunjan as CW3. After pre charge evidence, a charge u/s 15 and 19 of the Act is framed on 16.12.2014 against the accused to which he pleaded not guilty and claimed trial. Thereafter, matter was listed for post charge evidence.
5. The following documents were relied upon and exhibited in the evidence of the SDM Vivek Vihar vs Surjeet Singh Virdhi U/s 15 & 19 of Environment (Protection) Act, 1986 2 of 11 complainant i.e photographs Ex.CW1/1 to Ex.CW1/4, sealing order Ex.CW1/5, DD no.27A dated 06.11.2012 Ex.CWA2/1, Kalandra Ex.CW3/1 and notification dated 30.03.2009 as mark 'A'.
6. In post charge evidence, all three witnesses were cross examined u/s 246(4) Cr.P.C.
7. Statement of accused was recorded u/s 313 read with section 281 Cr.P.C. In his statement accused admitted that he is owner of the plot in question but denied the allegations and stated that he is innocent and has been falsely implicated in this case in collusion with area SDM and SHO. He further stated that during the reconstruction of his house, area SHO had demand bribe of Rs.50,000/ which was denied by him due to which he has been implicated in this case. Accused opted not to lead any defence evidence.
8. I have given my thoughtful consideration to the submissions advanced on behalf of the parties and have gone through the relevant records. I have also gone through the relevant provisions of Environment (Protection) Act, 1986 I have also gone through the notification issued by Govt. of NCT of Delhi.
The relevant provision section 15 of the Act and para (i) of the notification (mark A) is reproduced below for ready reference:
15. Penalty for contravention of the provisions of the Act and the rules, orders and directions. (1) Whoever fails to comply with or contravenes any of the provisions of this Act, or the rules made or orders or directions issued thereunder, shall, in respect of SDM Vivek Vihar vs Surjeet Singh Virdhi U/s 15 & 19 of Environment (Protection) Act, 1986 3 of 11 each such failure or contravention, be punishable with imprisonment for a terms 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 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.
(Notification mark A) (i) In the whole of the National Capital Territory of Delhi, no person, group, authority, association or institution is allowed to draw ground water through new bore well/tubewell for domestic, commercial and or industrial uses without the prior permission of the Competent Authority i.e Delhi Jal Board.
9. Learned counsel for complainant argued that the case of the complainant had been duly proved by the complainant's witnesses beyond reasonable doubt. It is further argued that the testimony of the witnesses, photographs and other documents clearly proved that the accused installed new groundwater bore well at the premises no.64 Shanti Vihar, Delhi and therefore, accused may be convicted for the alleged offence.
10.On the other hand, learned defence counsel submitted that there were contradictions in the testimony of complainant's witnesses. No public person was joined in the raid which create doubt in the story of the complainant. It is further submitted that the complainant neither examined the official of Delhi Jal Board nor the Naib Tehsildar who were allegedly present at the time of conducting raid. It is further submitted that there are contradictions in the SDM Vivek Vihar vs Surjeet Singh Virdhi U/s 15 & 19 of Environment (Protection) Act, 1986 4 of 11 testimony of CW1 regarding getting secret information/complaint. In her examination in chief, CW1 Ms. Usha Chaturvedi deposed that on 05.11.2011, she received secret information on her mobile that borewell had been installed in the premises in question. But in her cross examination, CW1 deposed that she received the written complaint regarding installation of new borewell in the premises in question 23 days prior to the raid. Learned defence counsel further submitted that the borewell in question was old one which was bored about 30 years back before coming into force the notification dated 30.03.2009 mark 'A'.
11.CW1 Ms. Usha Chaturvedi deposed that on 05.11.2012, she got secret information on her mobile No.9999490996 that borewell had been installed without permission from the concerned authority in the premises at 64 Shanti Vihar, Delhi. Thereafter, she directed Naib Tehsildar Sh. Mohan Lal to arrange raid on the said premises along with DJB officers and police officials from PS Anand Vihar, Delhi. CW1 further deposed that she reached with Naib Tehsildar Sh. Mohan Lal at the spot where Sh. B.S. Verma JE from DJB and SHO PS Anand Vihar were present. The old building at 64 Shanti Vihar, Delhi, had already been broken and it was in plot shape where the new borewell was already installed. CW1 further deposed that on inquiry from the police, the name of the owner of the said plot came to be known as Surjit Singh Virdhi i.e accused who was informed to come at the said plot with document or permission for installation of the borewell but nobody came from the owner side. Therefore, she had to make the borewell sealed with the help of official SDM Vivek Vihar vs Surjeet Singh Virdhi U/s 15 & 19 of Environment (Protection) Act, 1986 5 of 11 of DJB, police officials of PS Anand Vihar and Naib Tehsildar from revenue department.
12.In her cross examination, CW1 Ms. Usha Chaturvedi deposed that she had neither given any show cause notice to the accused nor she affixed any show cause notice. However, she deposed that accused was given proper time to reach at the spot but he failed. CW1 further deposed that she got the information regarding unauthorized borewell by about 11.00 am on 05.11.2012. CW1 further admitted that she did not carry out any inquiry regarding the fact whether the borewell installed in the premises in question was new or old. CW1 voluntarily deposed that presence of DJB officers and SHO PS Anand Vihar confirmed the fact that the borewell was new and installed illegally and unauthorizedly. CW1 further deposed that she had not recorded any kind of statement at the spot or later on qua the proceedings and after conducting the raid no inquiry was made by her qua the period of boring. CW1 further deposed that she had no scientific knowledge to ascertain the period of bore well. CW1 further deposed that she had the practical knowledge and from the spot, it was clear that entire boring was new one. CW1 further deposed that no communication in writing was made by her to the accused after the raid and before filing of the present complaint asking the accused for explanation in respect of the boring. CW1 further deposed that she had no knowledge when the water connection was made available in the said colony. CW1 denied the suggestion that boring in question was more than 30 years old. SDM Vivek Vihar vs Surjeet Singh Virdhi U/s 15 & 19 of Environment (Protection) Act, 1986 6 of 11
13.CW1 Ms. Usha Chaturvedi was further cross examined in post charge evidence on 23.03.2015. In her cross examination in post charge evidence, CW1 deposed that she had received a written complaint regarding installation of new borewell in the premises in question about 23 days prior to the raid. However, she had not placed on record copy of the complaint received by her prior to the raid as she did not want to disclose the name and address of the informer. CW1 further deposed that borewell was newly installed as the plaster covering the boring was new and raw. The pipe therein was without any fitting showing that the same had not been used previously.
14.In his statement, CW2 HC Mukul deposed that on 05.11.2012 he along with SHO Anand Vihar, WSI Gunjan and Ct. Manoj reached at the spot on receipt of intimation from SDM Vivek Vihar regarding the complaint of unauthorized borewell at the site. CW2 further deposed that on the direction of the SDM, unauthorized borewell was sealed by the staff of SDM and SDM directed the SHO to inquire into the matter and prepare a Kalandra against the owner of the property. WSI Gunjan took the photographs of the said borewell. CW2 further deposed that on 06.11.2012 WSI Gunjan called the accused, contractor and they were inquired and DD No.27A dated 06.11.2012 was prepared. In his cross examination, CW2 deposed that at the spot at about 4.30/5.00 pm on 05.11.2012 he had not met the accused. CW2 further deposed that CW1 Ms. Usha Chaturvedi was available at the spot and she herself stated that it was unauthorized borewell. His statement was not recorded by the IO. SDM Vivek Vihar vs Surjeet Singh Virdhi U/s 15 & 19 of Environment (Protection) Act, 1986 7 of 11
15.CW3 WSI Gunjan deposed that on 05.11.2012 she along with SHO Anand Vihar, HC Mukul and ct. Manoj reached the spot where area SDM and officer of DJB were present. CW3 further deposed that a new borewell was installed at the right side of the said property and new pipe was visible as could be seen from the portion which was above the ground. The borewell was connected with the electric meter. CW3 further deposed that accused was inquired about any permission taken by him for installation of borewell at the property in question and was asked to produce the same on the spot. Accused assured to come on spot but he did not turn up for about one and half hour. CW3 further deposed that the photographs of the spot was taken by the photographer. CW3 further deposed that later on accused was summoned by her in the PS and was released on bail on furnishing his personal bond. In her post charge evidence, CW3 admitted the suggestion that after preparing a kalandra, she never visited the spot, nor recorded statement of any witness and of the accused in writing. CW3 further deposed that since the boring was appearing to be new and people present there also stated the same to be new she concluded that the borewell was new one. CW3 further stated that the statement of the people available at the spot was not recorded. She further admitted that there was no mention of their (people) names in the kalandra. CW3 further deposed that she could not admit or deny that borewell was prior to 2000. She did not know when the borewell was dug. CW3 further deposed that she came to know that the borewell was new through the staff of SDM who was present at the spot.
SDM Vivek Vihar vs Surjeet Singh Virdhi U/s 15 & 19 of Environment (Protection) Act, 1986 8 of 11
16.In her examination in chief, CW1 deposed that she got secret information on her mobile phone on 05.11.2012 that borewell was installed without permission from the competent authority at the premises No.64 Shanti Vihar, Delhi. Raid was conducted on 05.11.2012. While in her cross examination, CW1 deposed that she had received written complaint regarding installation of new borewell in the property in question 23 days prior to the raid. Thus the deposition of CW1 is self contradictory. CW1 further deposed that after receiving the information, she informed the SHO PS Anand Vihar and officials of DJB. According to CW1 when she reached the spot, she found SHO Anand Vihar and Sh. B.S Verma, JE from DJB. Whereas CW2 HC Mukul and CW2 WSI Gunjan deposed that when they reached the spot along with SHO PS Anand Vihar, the SDM Vivek Vihar was available at the spot. Thus, there are contradictions in the depositions of CW1, CW2 and CW3.
17.CW1 Ms. Usha Chaturvedi deposed that she had no scientific knowledge that the borewell was new. CW3 deposed that she could not admit or deny that the borewell was prior to 2000. None of the complainant witness saw the accused installing the borewell in the premises in question when they reached at the spot borewell was already there. It is also important to mention here that it is stated in the Kalandra Ex.CW3/1 that WSI Gunjan called the accused and the contractor in the PS wherein the accused stated that he had installed the bore well and only he was responsible and not the contractor. The contractor was not made a witness nor any witness from DJB was examined by the SDM Vivek Vihar vs Surjeet Singh Virdhi U/s 15 & 19 of Environment (Protection) Act, 1986 9 of 11 complainant. CW2 deposed that the SDM (CW1) had herself stated that it was unauthorized borewell. While CW3 WSI Gunjan deposed that she came to know about the borewell was new through SDM staff. The complainant has examined three witnesses. CW1 Ms. Usha Chaturvedi who is the complainant deposed that she did not caryy out any inquiry regarding the fact that the bore well was new. CW2 HC Mukul and CW3 WSI Gunjan deposed that they came to know from the staff of SDM that the borewell was new. Neither the person who informed CW1 that borewell was new, was examined nor any complaint was filed on record. Thus, a serious doubt is raised that borewell was newly installed by the accused in the premises in question.
18.Learned counsel for the complainant heavily relied upon the photographs of the borewell. However, no negative of the photographs has been filed on record. In the absence of negatives and considering the above deposition of the complainant's witnesses, I am of the considered view that the complainant has failed to prove its case beyond reasonable doubts that the accused installed a new borewell in the premises in question on 05.11.2012 or before notification dated 30.03.2009 mark A.
19.It is relevant to mention at this stage that it is necessary for the prosecution to prove its case beyond reasonable doubt as held by the Hon'ble Supreme Court in Rang Bahadur Singh Vs. State of U.P. 2000 II AD(S.C.) 103;
"That the time tested rule is that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable SDM Vivek Vihar vs Surjeet Singh Virdhi U/s 15 & 19 of Environment (Protection) Act, 1986 10 of 11 doubt a conviction can not be passed on the accused. A criminal Court cannot afford to deprive liberty of the appellants, life long liberty, without having at least a reasonable level of certainty that the appellants were the real culprits."
20.Further, it is well settled law that the benefit of doubts goes in favour of the accused. Accordingly, accused is acquitted from the charges leveled against him. However, Mr. Surjeet Singh Virdhi is directed to furnish fresh bail bonds in terms of section 437A Cr.P.C. Fresh bail bonds in the sum of Rs.10,000/ is furnished in terms of section 437A Cr.P.C and accepted for a period of six months. Case property, if any, be confiscated to the state and file be consigned to record room.
(PRITAM SINGH) ACMM(SPECIAL ACTS) CENTRAL TIS HAZARI COURTS DELHI Announced in open court on 14th July, 2015 (Total number of page 11) (One spare copy attached) SDM Vivek Vihar vs Surjeet Singh Virdhi U/s 15 & 19 of Environment (Protection) Act, 1986 11 of 11