Karnataka High Court
The Karnataka State Poollution vs R.V. Nayak on 5 April, 2022
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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CRL.A No. 100024 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 05TH DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
CRIMINAL APPEAL NO. 100024 OF 2016 (A-)
BETWEEN:
THE KARNATAKA STATE POLLUTION
CONTROL BOARD
REPRESENTED BY ITS REGIONAL OFFICER
(DEPUTY ENVIRONMENTAL OFFICER)
SRI. GOPAL KRISHNA B. SANATANGI
NOW SRI. GURUDEV PRAKASH
AGE:MAJOR,
OCC.DEPUTY ENVIRONMENTAL OFFICER,
KARNATAKA STATE POLLUTION CONTROL BOARD
CIVIL COURT ROAD, KARWAR
...PETITIONER
(BY SRI. GURUDEV I. GACHCHINAMATH, ADVOCATE)
AND:
SRI. R. V. NAYAK
SENIOR MANAGER (EXPORTS)
Digitally
VN
signed by V
N BADIGER
Location:
M/S. SALGAOCAR MINING INDUSTRIES
DHARWAD
BADIGER Date:
2022.04.06
17:18:16
+0530
BELEKERI PORT, ANKOLA TALUK
UTTARA KANNADA DISTRICT
...RESPONDENT
(BY SRI. ARAVIND D KULKARNI, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED U/S.378(4) OF CR.P.C.,
SEEKING TO GRANT LEAVE TO APPEAL AGAINST THE ORDER
OF ACQUITTAL PASSED IN C.C.NO.316/2005 DATED 14.8.2015
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CRL.A No. 100024 of 2016
PASSED BY THE JMFC, ANKOLA AND TO SET ASIDE THE
IMPUGNED JUDGMENT MADE IN CC NO.316/2005 DATED
14.8.2015 PASSED BY THE JMFC, ANKOLA AND CONVICT THE
ACCUSED FOR THE OFFENCE PUNISHABLE UNDER WATER
(PREVENTION AND CONTROL OF POLLUTION) ACT.
JUDGMENT
A private complaint was filed under section 200 of Cr.P.C., alleging that the respondent-accused, who is in actual control and management of M/s.Salagaonkar Mining Industries Belakeri Port, Ankola Taluk has not taken safety measures as prescribed under the Water (Prevention of Control and Pollution) Act, 1974 (for short "the Act") and thereby violated Section 24 of the Act. It is further alleged that the respondent-accused without taking previous consent of the Karnataka State Pollution Control Board for stacking iron ore has committed the offence punishable under section 43 and 44 of the Act. The learned Magistrate, after perusing the complaint, took cognizance of the offences punishable under sections 43 and 44 of the Act.
2. The complainant to prove its case examined PW1 and PW2 as witnesses and marked documents at Ex.P1 to -3- CRL.A No. 100024 of 2016 Ex.P11. The accused did not choose to lead any evidence nor marked any documents. The learned Magistrate after examining the evidence on record passed the impugned judgment acquitting the respondent-accused for the offences punishable under section 43 and 44 of the Act. Taking exception to the same, the complainant is in appeal.
3. Learned counsel appearing for the appellant- complainant submits that the respondent-accused without obtaining prior consent of the Board as specified under section 25 and 26 of the Act has the committed offence punishable under section 44 of the Act. He further submits that the respondent-accused by not taking safety measures as prescribed under the Act has violated section 24 of the Act, which is punishable under section 43 of the Act. Hence, he submits that the learned magistrate without considering the evidence on record, in a proper perspective, has passed the impugned judgment of acquittal, which is liable to be set aside.
-4-CRL.A No. 100024 of 2016
4. On the other hand, learned counsel appearing for respondent-accused submits that the complaint was filed by an incompetent person and as such, the learned Magistrate has rightly dismissed the complaint on the ground that it was not filed by a competent person. He further submits that before filing of the complaint, the Board was required to collect the sample of effluents alleged to have been discharged by the respondent-accused, which has allegedly resulted in polluting the water as specified under section 21 of the Act. He further submits that the learned Magistrate has rightly passed the judgment of acquittal since the complainant has not examined independent witnesses, though they were available on the spot as on the date of the alleged incident. He further submits that the offences are alleged to have been committed by the company, however the company has not been arraigned as accused so as to hold the respondent vicariously guilty as specified under section 45 of the Act. Hence, he submits that the impugned judgment of acquittal passed by the learned Magistrate is perfectly legal and does not warrant any interference. -5- CRL.A No. 100024 of 2016
5. I have examined the submissions of the learned counsel for the parties.
6. The complaint was filed by the Deputy Environmental Officer, without any authorization from the Board as specified under Section 49 of the Act, which specifies that no Court shall take cognizance of any offence under this Act except on a complaint made by a Board or any officer authorized in this behalf. In the present case the Deputy Environmental Officer, without there being any authorization has filed the complaint and the same is not maintainable in view of section 49 of the Act.
7. Section 21 of the Act specifies that a State Board or any officer empowered by it in this behalf shall have power to take for the purpose of analysis samples of water from any stream or well or samples of any sewage or trade effluent which is passing from any plant or vessel or from or over any place into any such stream or well and the result of any analysis of a sample of any sewage or trade effluent taken under sub-section (1) shall not be admissible in -6- CRL.A No. 100024 of 2016 evidence in any legal proceeding unless the provisions of sub-sections (3), (4) and (5) are complied with.
8. In the absence of any material to substantiate that because of the effluents discharged by the respondent- accused, the water in the well or stream has been contaminated, the filing of the complaint against the respondent-accused is without any substance and the learned Magistrate by taking into account the same has rightly dismissed the complaint.
9. Section 47 of the Act specifies that where an offence under this Act has been committed by a company, every person, who at the time the offence was committed was in charge of, and was responsible to the company for the conduct of, the business of the company, as well as the company, shall be deemed to be guilty of the offence.
10. In the present case, the offence is alleged to have been committed by the company and the company having not been arraigned as accused in the compliant, the respondent-accused cannot be held vicariously guilty of the -7- CRL.A No. 100024 of 2016 offences alleged to have been committed by the company. Hence, the complaint is hit by section 47 of the Act and not maintainable in law.
11. In view of the foregoing discussions, I do not find any illegality or infirmity in the impugned judgment passed by the learned Magistrate. Accordingly, the appeal stands dismissed.
12. In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are dismissed accordingly.
Sd/-
JUDGE YAN