Shree P. A. Parekh; Shree M. Chattarji v. Maharashtra Pollution Control Board

3. By order dated 19.09.2002, this Court has continued the bail granted to Applicants – Accused by the Lower Court on furnishing fresh bonds.

4. Mr. Gole, learned Advocate for Applicants would submit that the order granting sanction for prosecution is vague and inadequate as the said order is an omnibus order for prosecution against 19 companies including the said Company passed in the meeting of the Board held on 04.08.1986. He would submit that the said order neither mentions facts of each case nor particulars of the alleged offence committed by each of the companies. He would submit that on that ground itself i.e. for want of proper and legal sanction the Complaint filed by the Board ought to have been dismissed at the threshold. He would submit that the order of sanction did not give any direction for prosecution against the Director and Manager of the said 5 of 20 Company and hence Complaint filed by the Board is ultra vires of the power vested by the Board with its Regional Manager.

4.1. He would submit that the Director and Manager of the said Company were not ipso facto liable to be prosecuted owing to them holding their position in the said Company at the relevant time and furthermore the said Company was holding a valid consent for discharge of the effluent which was subsisting on the date the samples were drawn by the representative of the Board for analysis.

4.2. He would submit that conviction of Applicants cannot be solely based on the basis of the effluent sample not conforming to the prescribed standards as the violation alleged was of the provisions of Sections 26 and 27 of the said Act. He would submit that while collecting samples of the effluent the prescribed statutory procedure laid down under Section 21 of the said Act was not followed. He would submit that Section 21 of the said Act mandates that after collecting the sample, the sample is to be divided into two parts and thereafter each part is to be placed in a container which are to be marked and sealed and signature of the person taking the sample and the occupier of the factory is required to be obtained thereon and thereafter one part is to be sent to the Government Laboratory and the second part is to be sent to the Laboratory suggested by Company. He 6 of 20 would submit that this prescribed mandatory procedure has not been followed by the representative of the Board i.e. PW-1 as contemplated.

4.3. He would submit that both Courts below ought to have considered Exhibit “33” which is a document titled ‘law evidence sampling’ and the fact that it does not bear the signature of either of the Applicants when samples were drawn, marked, sealed and would therefore submit that the same creates a suspicion whether the samples collected from the effluent treatment plant of the said Company were the same samples which were sent for analysis. He would submit that non-compliance of the statutory procedure vitiates the prosecution case.

4.4. He has drawn my attention to the witness action of PW -1 witness on behalf of Complainant – Board namely Vishwas Mundhe, Officer of the Board who visited the Applicants’ factory for collection of samples. The said witness has stated that he took charge of the area where the factory of Applicants is situated in August 1986 however he visited the factory on 07.01.1988 on oral instructions from his superior. He has stated that the said witness has also admitted to the fact that the law evidence note does not mention that the sample was collected after it was discharged through the treatment plant. He has stated that he did not draw panchnama of the place and point through which the effluent was discharged in the nullah. He would 7 of 20 submit that this raises a doubt as to the place from where the sample was collected and sent for analysis.

4.5. Next, he has drawn my attention to the evidence of PW-2 on behalf of Applicant who is the Regional Officer of Complainant – Board who has stated that he was not personally present at the board meeting in which Resolution No.5 granting sanction for prosecution against the 18 Companies including the said Company was passed. The said witness has placed on record the documents which are marked in evidence and were submitted to the Board for according sanction, however there is no endorsement seen on them.

4.6. Hence Mr. Gole would submit that prosecution has not led evidence of any witness to prove that the Board in its meeting passed Resolution No.5 by applying their mind to the documents submitted, if any and that the said resolution was passed by the Board in a completely mechanical manner alongwith all other resolutions on the agenda which were listed on that date by one the Board in its Board meeting.

4.7. He would submit that there is a substantial delay in submitting the Government Analysis Report which is unexplained and hence possibility of tampering of the alleged sample collected at the 8 of 20 instance of the Board cannot be ruled out which goes against the prosecution case.

4.8. He would submit that prosecution has failed to prove its case beyond all reasonable doubts which the Trial Court and Appellate Court ought to have considered while adjudicating the case. In view of his above submissions, he would urge the Court to allow the Revision Application and quash and set aside the twin judgments dated 31.12.1996 and 23.08.2002.

5. Mr. Patki, learned Advocate for Respondent No.1 – Board would submit that Board sanction obtained for prosecution of the 18 Companies is a valid sanction as per Section 49 of the said Act. He would submit that evidence on record is sufficient to show that the Officer of the Board viz. PW-1 collected the samples of effluent by following the prescribed procedure as per Section 21 of the said Act. He has drawn my attention to the 313 statements of both Applicants wherein they have endorsed that PW-1 collected the samples of effluent by following the prescribed procedure from the final outlet and the procedure of sampling was carried out in the presence of Applicant No.2 and it bears his signature. He would therefore submit that the defence taken by Applicants that the sampling document does not bear the signature of Applicant No.2 is a misconception. He would submit that the Report of Analyst clearly confirms that the effluent 9 of 20 discharged by the Company of which the Applicants were Director and Manager did not conform to the standards prescribed in the consent issued by the Board. He would therefore submit that both the Trial Court and the Appellate Court have correctly examined the material and evidence on record and convicted the Applicants. He would therefore urge the Court to uphold both the judgments and reject the Revision Application.

6. Dr. Krishnaiyer, learned APP for the State has adopted and supported the submissions of Mr. Patki, learned Advocate for Respondent No.1 – Board and would urge the Court to dismiss the Revision Application.

7. I have heard Mr. Gole, learned Advocate for Applicants, Mr. Patki, learned Advocate for Respondent No.1 – Board and Dr. Krishnaiyer, learned APP for Respondent No.2- State and with their able assistance perused the record of the case. Submissions made by the learned Advocates have received due consideration of the Court.

8. In the present case it seen that consent for discharge of effluent was first granted to the said Company on 07.08.1979. On 07.01.1988, a notice for collection of sample of the effluent discharge was served on the said Company and on the same day itself i.e. on 07.01.1988 without giving the said Company any time the effluent 10 of 20 samples were collected by PW-1 in the presence of Applicant No.2. The said facts are admitted and can be corroborated by the document at Exhibit “33” which bears the signature of Applicant No.2 as well as PW-1. At this juncture it is necessary to refer to the procedure required to be followed for collection of sample as envisaged under Section 21 of the said Act. Section 21 of the said Act reads thus:- “21. Power to take samples of effluents and procedure to be followed in connection therewith.— (1) 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. (2) 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 subsections (3), (4) and (5) are complied with. (3) Subject to the provisions of sub-sections (4) and (5), when a sample (composite or otherwise as may be warranted by the process used) of any sewage or trade effluent is taken for analysis under sub-section (1), the person taking the sample shall— (a) serve on the person in charge of, or having control over, the plant or vessel or in occupation of the place (which person is hereinafter referred to as the occupier) or any agent of such occupier, a notice, then and there in such form as may be prescribed of his intention to have it so analysed; (b) in the presence of the occupier or his agent, divide the sample into two parts;

(c) cause each part to be placed in a container which shall be marked and sealed and shall also be signed both by the person taking the sample and the occupier or his agent;

(d) send one container forthwith,—

(i) in a case where such sample is taken from any area situated in a Union territory, to the laboratory established or recognised by the Central Board under section 16; and

(ii) in any other case, to the laboratory established or recognised by the State Board under section 17; 11 of 20 (e) on the request of the occupier or his agent, send the second container,—

(i) in a case where such sample is taken from any area situated in a Union territory, to the laboratory established or specified under sub-section (1) of section 51; and

(ii) in any other case, to the laboratory established or specified under sub-section (1) of section 52. (4) When a sample of any sewage or trade affluent is taken for analysis under sub-section (1) and the person taking the sample serves on the occupier or his agent, a notice under clause (a) of sub-section (3) and the occupier or his agent wilfully absents himself, then,— (a) the sample so taken shall be placed in a container which shall be marked and sealed and shall also be signed by the person taking the sample and the same shall be sent forthwith by such person for analysis to the laboratory referred to in subclause (i) or sub-clause (ii), as the case may be, of clause (e) of sub-section (3) and such person shall inform the Government analyst appointed under sub-section (1) or sub-section (2), as the case may be, of section 53, in writing about the wilful absence of the occupier or his agent; and (b) the cost incurred in getting such sample analysed shall be payable by the occupier or his agent and in case of default of such payment, the same shall be recoverable from the occupier or his agent, as the case may be, as an arrear of land revenue or of public demand: Provided that no such recovery shall be made unless the occupier or, as the case may be, his agent has been given a reasonable opportunity of being heard in the matter. (5) When a sample of any sewage or trade effluent is taken for analysis under sub-section (1) and the person taking the sample serves on the occupier or his agent a notice under clause (a) of sub-section (3) and the occupier or his agent who is present at the time of taking the sample does not make a request for dividing the sample into two parts as provided in clause (b) of sub-section (3), then, the sample so taken shall be placed in a container which shall be marked and sealed and shall also be signed by the person taking the sample and the same shall be sent forthwith by such person for analysis to the laboratory referred to in sub-clause (i) or sub-clause (ii), as the case may be, of clause (d) of sub- section (3).”

8.1. From the above it is seen that Section 21 mandates that on drawing of samples it has to be divided into two parts, sealed and 12 of 20 marked. One part is required to be sent to the Government laboratory and the second part on the request made by the occupier / his agent is to be sent to a laboratory specified in sub-section 1 of Section 52. In the present case, it is seen that the second part of the sample drawn was not sent to the laboratory on the request of the occupier. It is seen that the first part of the sample drawn was sent to the Government analyst and his report was received which was tabled before the Board meeting for considering issuance of sanction for prosecution. This procedure envisaged under Section 21 namely under sub-section (3) (e) has been given a complete go by. There is no explanation for the aforesaid non-compliance on the part of Respondent No.1 - Board. In this regard, the chronology of events in the present case is also crucial.

9. The chronology of events in the present case is also crucial. On 07.01.1988 notice for collection of samples was sent to the said Company and on the same date samples were collected on oral instructions of Mr. S.K. Patil, Member Secretary of the Board. On 19.02.1988 Report of Government Analyst was furnished which was presented in the Board meeting dated 14.06.1988 and Resolution No.5 for sanction of prosecution against the said Company and other 18 Companies was passed. Thereafter on 04.08.1988 a common Sanction order was passed by the Complainant Board for prosecuting 19 Companies including the said Company and eventually on 05.11.1988 13 of 20 Complaint was filed against the said Company and present Applicants for breach of conditions of the consent before the Judicial Magistrate First Class, Panvel.

9.1. However in the meantime on 22.07.1988 renewal of consent is granted to the said Company by the Complainant Board signed by Mr. S.K. Patil, Member Secretary of the Board as seen from the record of the case. If it is the case of the Complainant Board that the said Company committed breach / dereliction of conditions mentioned in the consent dated 07.08.1979 then the Complainant Board ought not to have granted renewal of the consent and instead followed the procedure laid down under Section 27 of the said Act pertaining to refusal or withdrawal of consent by State Board.

10. Perusal of the Complaint filed by the Board reveals that that no specific or direct role has been attributed to the Applicants in the entire complaint except for stating their name in the cause-title of the proforma of the Complaint. It is trite law that every person connected with the business of Company or firm cannot be held liable for the acts or omissions of the said Company. Mere holding of office is not the criteria. The persons who are made Accused should be connected with the affairs of the firm and also connected with the business of the Company that lead to commission of the crime at that point of time. The liability under criminal law would arise only if 14 of 20 necessary averments are made in the complaint itself. In this regard it would be helpful to refer to the decision of the Single Judge of the Punjab and Haryana High Court in the case of Dipti Jain and Ors. Vs. Haryana Pollution Control Board and Vardhaman Spinners and Ors. Vs. Haryana Pollution Control Board[1] wherein the Court in paragraph No.19 has held as under:-

10.1. The aforesaid proposition squarely applies to the facts of the present case and hence it was incumbent upon the Complainant – Board to clearly carve out role of the Applicants in the Complaint. 1 MANU/PH/0646/2022 15 of 20

11. From the evidence led by Complainant Board it is seen that PW-1 has in his cross-examination admitted that he was in-charge of the area where the factory of Company was situated since 1986 however he visited he visited the factory only on 07.01.1988 that too on oral instructions / directions received from his superior Mr. S.K. Patil, Member Secretary of the Board for collection of samples which is contradictory to the provisions of Section 33-A of the said Act readwith Rule 34 of the Water (Prevention and Control of Pollution) Rules, 1975. Section 33-A as well as Rule 34 state that any direction issued by the Board for exercising its power and performance of its functions under the said Act to any person, officer or authority shall be in writing. Hence the collection of samples conducted by PW-1 is deemed to be without valid authority as per the provisions of the said Act.

12. Evidence of PW-2 who filed the Complaint on behalf of the Board reveals that he has filed the Complaint on hearsay basis and did not have any personal knowledge of the occurence of the alleged acts / ommissions by the Company as he was not the Regional Officer of the Board at that time. He has also stated that till filing of the Complaint, the Company did not provide any effluent treatement plant and hence ultimately complaint was filed. From the evidence of both witnesses it is gathered that the action of the Complainant Board of 16 of 20 granting renewal of consent to the said Company on 22.07.1988 is subsequent to the passing of Resolution No.5 for prosecution against the said Company and hence this grant / renewal of consent casts a shadow of doubt on the prosecution case. This is because if in June prosecution against the Company was sanctioned, there was no reason for the Board to renew the consent. The Board ought to have invoked the provisions of Section 27 of the said Act instead of refusal or withdrawal of consent in such a case. It failed to do so.

13. Furthermore it is seen that though samples were collected on 07.01.1988, they were sent for analysis to the Government Analyst on 08.01.1988 and thereafter the Government Analyst submitted Report only on 19.02.1988 which is after a delay of 1 month and 12 days and there is no explanation provided about the samples throughout this period.

14. Prima facie it is seen that a person who is directly incharge of and responsible for the conduct of the business of the factory / Company can be prosecuted, the provision for prosecution of the person appears in the Water Act and plain language of interpretation would show that a person who is charged with the offence must be “directly” in-charge of the firm and should be directly responsible for the conduct of its business. 17 of 20

15. It is a settled proposition of law that every person connected with business of the firm or holding an office in the firm cannot be made liable. If the person is charged with criminal culpability as in the present case, then his specific role has to be stated. The liability under criminal law would arise only if necessary averments are made in the complaint itself. It is a settled legal proposition that liability arises on account of the conduct, act or omission on the part of the person and not merely on account of the office that he is holding. Applicant Nos.[1] and 2 are original Accused Nos.[3] and 4. Applicant No.1 was Director and Applicant No.2 was Manager of the Company at the then time.

16. The aforesaid legal proposition prima facie applies to the indictment of Applicants before me. That apart, when Respondent – Board has considered grant of sanction for prosecution, it is prima facie seen that the said sanction is an omnibus sanction granted in respect of 19 Companies including the said Company wherein the Applicants were working. It is seen from the record that the agenda item placed before the Board in its Board Meeting at the time of obtaining sanction did not give any details for indictment of the said Company or any of its Officers / Directors save and except to have stated that report of the Government Analyst was positive and sanction was required. In that context, in the present case, there is a 18 of 20 clear breach of the provisions of Section 21(3)(e) of the said Act which has been highlighted herein above. The power to draw samples of effluents and procedure to be followed in connection there with is stated in Section 21 of the said Act. The said Section prescribes the procedure which needs to be followed scrupulously. It is a procedure highlighting checks and balances requiring drawing of twin samples to be tested by the concerned laboratories at the behest of the prosecution on the one hand and on the request of the occupier, if so made. In the present case, there is a breach in as much as request of the occupier for sending the sample in the second container is concerned which has not been complied with.

17. From the above, it is clear that the Complainant – Board itself violated the statutory prescribed procedure laid down under Section 21 of the said Act. Prosecution case suffers from infirmities and several lacunae and the Complainant Board has therefore failed to prove its case beyond reasonable doubt owing to various lapses in procedure as well as contradictory actions on part of the Complainant Board. Liability in criminal law would arise only if necessary averments are made in the complaint spelling out with clarity the roles of each accused. Precise and exact roles of Applicants has not been spelt out. Merely by virtue of their office positions they have been indicted. That apart mandatory option required to be given to the 19 of 20 occupier of the Company under Section 21(3)(e) of the said Act not having been given and relying solely on the Government Analyst Report based on a singular sample is fatal to the prosecution case. Hence, conviction of the Applicants is clearly unsustainable in the above facts and circumstances.

18. In view of the above observations and findings, both judgments dated 31.12.1996 passed by the Trial Court and 23.08.2002 passed by the Appellate Court are quashed and set aside.

19. Bail bonds of the Applicants, if any, stand cancelled.

20. Criminal Revision Application No.390 of 2002 is allowed and disposed. Ajay [ MILIND N. JADHAV, J. ] 20 of 20 TRAMBAK UGALMUGALE