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CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.112 OF 2022
JUDGMENT
1. Metro Cash & Carry India Private Limited, a company incorporated under the provisions of the Companies Act, 1956 and having its registered office at No.26/3, Industrial Suburbs, A Block, Subramanyanagar, Ward 9, Bangalore – 560055.
2. Sunaina Calapa Director of the Applicant No.1, Survey No.26/3, Ward No.9, Industrial Subramanyanagar, Ward 9, Bangalore – 560055....Applicants
VERSUS
1. Maharashtra Pollution Control Board, a body constituted under the provisions of the Water (Prevention & Control of Pollution) Act, 1974 and having its office at Kalpataru Point Building, Near Sion Circle, Sion.
2. The State of Maharashtra, Through the Principal Secretary, Ministry of Environment & Forests, having his office at Mantralaya, Mumbai – 400 032....Respondents ***** Mr.Aabad Ponda (Sr. Advocate) a/w Mr.Aditya Mithe, Mr.Dhirajkumar Totala, Mr.Asadulla Thangal, Ms.Vasudha Jain i/b.AZB & Partners:- Advocates for Applicants. Mr. S.B. Shetye:- Advocate for Respondent No.1. Mr.H.J.Dedhia:- APP for Respondent No.2-State. ***** CORAM: S. M. MODAK, J. DATE: 4th AUGUST 2025 ORAL ORDER:-
1. Heard learned Senior Advocate Shri. Ponda for the Applicants/ Accused and learned Advocate Shri. Shetye for the Respondent No.1/ Original Complainant.
2. On two grounds, this Application for quashing of the order of “issuance of process” is filed. Those two grounds are as follows:-
(i) The Accused No.1 is the Company and the Accused No.2 is the Director. Both are stationed / residing at Bangalore, outside the territorial limits of the Borivali Magistrate Court and after conducting an inquiry under Section 202 of the Code of Criminal Procedure, 1973 (“Cr.P.C.”), the process was issued. This is not permissible is one ground.
(ii) Secondly the Accused paid compounding charges of
Rs.5,000/- for first violation and compounding charges of Rs. 10,000/- for second violation. On this background, this Complaint is filed praying for conviction of Accused persons by relying upon the provisions of Section 9(1)(c) of the Maharashtra Non-biodegradable Garbage (Control) Act,
2006. Submission is this provision is not attracted.
3. Mr. Ponda has laid emphasis on the wording ‘conviction’ appearing in sub-section 1 to Section 9 of the said Act. According to him, this provision will be applicable only when the conviction is by the Court and not when fined by the Officers. He invited my attention to the provisions of Section 12 of the said Act. Those provisions are as follows:- (a) Any officer prescribed therein may accept a sum of money from a person who has committed the first or second offence. It is by way of compounding charges. For the first offence, it is Rs.5,000/- (Rupees Five Thousand) and for second offence, it is Rs.10,000/- (Rupees Ten Thousand). (b) He invited my attention to sub-section (2). If money is accepted, there is a bar on institution of proceeding in a criminal court.
(c) Whereas sub-section (3) lays down the effect of accepting a sum of money for compounding. The effect is acquittal of such a person as contemplated under Section 300 of Cr.P.C. For ready reference Section 12 of the said Act is reproduced below:- “12. Compounding of offences.— (1) Any officer of the State Government or of the local authority, authorized by the State Government or, as the case may be, by the local authority, in this behalf, may accept from any person who has committed or who is reasonable suspected of having committed the first or second offence under this Act, a sum of money by way of compounding of the offence as specified in the Table below:— TABLE Sr. Contravention/offence The sum of money to be accepted for No. compounding of an offence (1) (2) (3)
2 Second offence... Ten thousand rupees. (2) On payment of money in accordance with sub-section (1), any person in custody in connection with that offence shall be set at liberty and no proceeding shall be instituted or continued against such person in any criminal court. (3) The acceptance of sum of money for compounding of an offence in accordance with sub-section (1) shall be deemed to be an acquittal within the meaning of section 300 of the Code of Criminal Procedure, 1973 (2 of 1974)”. Background
4. The Complaint is filed for the offence under Section 9 of the said Act. The details of levying the fine for the first time and second time are mentioned in Para Nos.[8] and 9 of the Complaint. When the premises of the Accused No.1 were visited on 8th August 2018, Shri Umakant Trilotkar, Sr. Facilitator, MCGM found certain objectionable plastic-bags and compounding charges of Rs.5,000/- (Rupees Five Thousand) was paid. They treat it as the first offence. Whereas, the premises of the Accused No.1 were again visited by Shri Umakant Trilotkar, Sr. Facilitator, on 15th July 2019, they found the similar objectionable plastic-bags and that is why, compounding charges of Rs.10,000/- (Rupees Ten Thousand) was recovered. They treated it as second offence. The Complaint talks about the visit on 27th July 2019. On this occasion also, the Officer of Pollution Control Board along with Inspector of Municipal Corporation of Greater Mumbai (“MCGM”) found the objectionable plastic-bags. They have treated this as third violation and that is why the Complaint was filed before the Court of Metropolitan Magistrate – Borivali.
5. Now the issue is “whether prosecution can be instituted for this violation by treating earlier two compounding charges as fine imposed by the Court within the meaning of Clause (c) of Sub-Section 1 of Section 9 of the said Act”. For ready reference, Section 9 of the said Act is reproduced below: “9. Penalties.— (1) Whoever contravenes any of the provisions of this Act or any rules, notification or order made under this Act shall, on conviction, be punished,— (a) for the first offence with a fine which may extend to ten thousand rupees; (b) for the second offence with a fine which may extend to ten thousand rupees;
(c) for the subsequent offence, with an imprisonment for a term which may extend to three months and with a fine which may extend to twenty-five thousand rupees. (2) Whoever, in any manner aids, abets or is accessory to the commission of an offence under this Act shall, on conviction, be punished with the punishment provided for the offence”.
6. No doubt, in this case, the Applicants have paid compounding charges Can it be treated as the fine amount as contemplated u/s 9(1) (a) & 9(1)(b)?
7. Learned Advocate Shri. Shetye has invited my attention to the Affidavit filed by the Regional Officer of the Maharashtra Pollution Control Board. In that Affidavit, he has laid emphasis on the conduct of the Accused persons in not challenging the imposition of fine. He has laid emphasis on the provisions of Section 12 of the said Act.
8. For dealing with this issue, the scheme of this Act, needs to be considered. The relevant provisions of the said Act are as follows:- (a) Section 2(a) lays down the meaning of ‘biodegradable garbage’, (b) Section 2(g) lays down the meaning of ‘non-biodegradable garbage’,
(c) Section 2(h) lays down the meaning of ‘non-biodegradable material’.
(d) There are certain provisions which casts an obligation on certain person / authorities. They are as follows:
(i) Section 3 prohibits the persons from throwing biodegradable and non–biodegradable garbage at certain places.
(ii) Section 4 empowers the State Government to impose restrictions on the use of certain non–biodegradable material which is harmful to the environment.
(iii) Section 5 casts a duty on local authorities to provide rec for collection of such materials.
(iv) Section 6 casts an obligation on the owners and occupiers to collect such materials.
(v) For carrying out the implementation of the Act, Section 8
(vi) Section 9 lays down penalties if any person contravenes the provision of the Act, Rules, Notification or any Order. The interpretation of this Section is an issue with this Application.
(vii) Section 10 lays down the vicarious liability of natural persons if a Company has violated the provisions.
(viii) Section 11 lays down the procedure to be followed in a trial. It is in summary way.
(ix) Section 12 gives power to certain authorities to compound the offence and the amount of compounding charges is also mentioned therein. For third offence, compounding charges are not mentioned. It indicates, if third offence is committed, compounding is not permissible.
9. If we read these provisions together, what we find is the wordings are different. In Section 9, the word used is “Fine” when there is conviction whereas in Section 12 the word used is “Compounding Charges.” In other words, if a person is held guilty, he is punished by imposing of fine amount. Legislatures are conscious while drafting Section 12 of the said Act. They have used the word “Compounding Charges”.
10. The authority is given to certain officers. It is very well true that, when there is a criminal complaint, there are two parties – one is the Complainant and the other is the Wrong Doer. Every offence is not compoundable. They are compoundable only when the law makes a provision. It is important to note that, in Section 9 of the said Act, there is a provision for imposing fine for first and second offence. The compounding is always between the Parties and the Court has to put a seal of approval when it is permissible as per the law.
11. The amount of fine increases if second offence is committed. It is important to note that, if third offence is committed, the Wrong Doer has to be punished not only with fine but also with three months’ of imprisonment. Correspondingly, if the table in Sec. 12 is perused, we may find compounding charges are not prescribed if there is a violation on the third occasion. The reason is obvious. Because as per Section 9(1)(c), there is a punishment of imprisonment that is prescribed. In such a case, this offence cannot be compounded by Officers.
12. From the above discussion, it is clear that, there can be prosecution when there is a violation on the third occasion preceded by imposing fine on conviction. The compounding charges collected by the Officers is not towards the fine and the said amount is not paid as directed by the Court.
13. The copies of the fine collected by the Officers is on Page No.45(LL) and Page No.45(MM). These payments cannot be considered as a payment made as per the conviction given by the Court. The conviction contemplated under Section 9(1) has to be by the Court established as per the law. So the invocation of the power under Section 9(1)(c) of the Act by the Officers cannot be sustained in the eyes of law.
14. Secondly, the sub-section 3 to Section 12 of the said Act treats compounding as an acquittal. This is one more reason why the payment of those charges cannot be considered as a conviction by the Criminal Court. From the above discussion, the order of “issuance of process” cannot be justified. Hence following Order:- O R D E R
(i) Application is allowed.
(ii) The order of “issuance of process” dated 8th November 2019
(iii) Complaint stands dismissed.
15. With these observations, the Application stands disposed of. [S. M. MODAK, J.]