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The aforesaid provision of Section 21 of the said Act is with regard to "Power to take samples of effluents and procedure to be followed in connection therewith". Sub-section (1) of the Section 21 of the said Act incorporates the powers of the State Board or any officer empowered by it to collect 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. Sub-section (2) of Section 21 contemplates that the result of any analysis of a sample of any sewage or trade effluent taken under Sub-section (1) shall not be admissible in evidence in any legal proceeding unless the provisions of Sub-section (3), (4) and (5) are complied with. The sample of any sewage or trade effluent is to be collected as per Sub-section (3) of Section 21. However, the said Sub-section would be subject to the provisions of Sub-section (4) and (5) of Section 21 of the said Act. It is true that the concerned officer is required to divide the sample into two parts in the presence of the occupier or his agent, as laid down in Clause (b) of Sub-section (3) of Section 21. However, that would be subject to the provisions of Sub-sections (4) and (5). As laid down in Sub-section (5), the occupier or the agent who would be present at the time of taking sample has to make a request for dividing the sample into two parts and on failure to do so, the concerned officer collecting the sample, shall place the sample in a container. In the instant case, the accused No. 2 specifically expressed his opinion that he did not desire to get the sample examined by the Laboratory of his choice. It is true that it is not specifically mentioned in his letter at Exh. 16 that the sample may not be divided in two parts. However, the sample is to be divided in two parts, only when the occupier is to examine the sample in the Laboratory of his choice. Therefore, on a conjoint reading of Section 21(3)(b) and Section 21(5), the net effect would be that the sample is to be divided in two parts when it is so expressed by the occupier or agent who is present at the time of taking such sample. Admittedly the accused No. 2, who was present at the time of collecting the sample, did not make any such request for dividing the sample into two parts. In the facts of the case, the learned Metropolitan Magistrate is, therefore, not right in holding that the sample was required to be divided in two parts as required under Section 21(3)(b) of the said Act. Mr. Gupta is, therefore, right in contending that the learned Metropolitan Magistrate did not consider Sub-section (5) of Section 21 of the said Act in its proper perspective and particularly read with the aforesaid Clause (b). The contention of Mr. Joshipura, learned Advocate appearing for the respondents-accused, that it was not brought to the notice of the accused No. 2 that he was required to express if the sample was to be divided into two parts cannot be accepted, in as much as the procedure for taking sample is to be followed as per the provisions of Sub-sections (3), (4) and (5) of Section 21 of the said Act.

7. The aforesaid ratio, followed in the judgment rendered in Criminal Revision Application Nos. 227 to 280 of 1994 and 282 to 286 of 1994, decided on April 6, 1994, by Justice K.J. Vaidya of this Court, will squarely be applicable to the instant case, as on perusal of the materials on record, it appears that the attention of the learned Metropolitan Magistrate was not invited to the provisions of Section 21(5) of the said Act. In other words, the procedure of collecting samples under Section 21(3) has to be followed, subject to the provisions of Sub-sections (4) and (5) of Section 21 of the said Act.

8. There is, however, a clear breach of the rules of the Gujarat Water (Prevention and Control of Pollution) Rules, 1976 in respect of following the procedure for submitting the samples to State Water Laboratory. Rule 27 of the said Rules reads as under:

27. Procedure for submitting samples to State Water Laboratory. - While submitting samples for analysis to the State Water Laboratory, the following procedure shall be followed:
(1) The sample shall be collected preferably in polythene container and shall be labelled giving the following details, namely:

10. Mr. B.R. Gupta, learned Advocate appearing for the appellant, fairly concedes that there is breach of Rule 27 as the slip Exh. 17 does not contain the source and the mature of the sample and the method of preservation used. There are also breaches in the procedure for collecting and submitting the sample to the State Laboratory as mentioned hereinabove. In submission of Mr. Gupta, however, the Rules are directory in character and no prejudice can be said to be caused to the respondent-accused in non-compliance of the Rules. He also submitted that the non-compliance with the Rule is mere irregularity which requires to be condoned. I am unable to accept this submission of Mr. Gupta. The Gujarat Water (Prevention and Control of Pollution) Rules, 1976 have been enacted in exercise of the powers conferred by Section 64 of the said Act, after consultation with the Gujarat State Water (Prevention and Control of Pollution) Board. The said Rules are, therefore, statutory. Having regard to the scheme of the Act and the Rules, the said Rules of 1976 are mandatory in nature and non-compliance thereof would vitiate the trial. It is, therefore, imperative that the sample taken by following the procedure as prescribed in Rule 27 should be strictly complied with. The said Rule provides elaborate procedure and manner of collecting and submitting the sample to the concerned Laboratory.