Full Text
HIGH COURT OF DELHI
Date of Decision: 10th February, 2023
ISHWAR SINGH DAHIYA ..... Petitioner
Through: Mr. Siddarth Agarwal, Advocate with Mr. Aman Khan, Advocate (M:
9045513840).
Through: Mr. Anuj Aggarwal, ASC with Ms. Ayushi Bansal, Mr. Sanyam Suri and
Ms. Arshya Singh, Advocates for R- 1,3,4 and 5 (M: 9891363718) with SI.
Hawa Singh, PS Mangol Puri (M:
9891594201).
Mr. Ajay Digpaul CGSC alongwith Mr Kamal R Digpaul and Ms Swati
Kwatra, Advocate for UOI (M:
9811157265).
JUDGMENT
(23) WITH + W.P.(C) 13328/2022 MANOJ KUMAR..... Petitioner Mr. Aman Khan, Advocate.
VERSUS
STATE AND ORS...... Respondents Through: Mr. Satyakam, ASC with Mr. Alok Raj, Advs. for R-1, 3, 4 & 5. Ms. Nidhi Mittal and Mr. Ojaswa Pathak, Advocates for UOI. (24) WITH + W.P.(C) 13349/2022 ANURADHA..... Petitioner versus STATE OF NCT DELHI AND ORS...... Respondents Raj, Advs. for R-1, 3, 4 & 5. Ms. Nidhi Mittal and Mr. Ojaswa Pathak, Advocates for UOI. (25) AND + W.P.(C) 13524/2022 RAM KUMAR SINGH..... Petitioner versus STATE OF NCT DELHI..... Respondent Raj, Advocate for R- 3 to 5. CORAM: JUSTICE PRATHIBA M. SINGH Prathiba M. Singh, J. (Oral)
1. This hearing has been done through hybrid mode.
2. These four cases relate to the deaths caused allegedly due to slitting of throats by kite flying thread made of polyester, nylon, plastic or any other synthetic material etc., also known colloquially as Chinese Manjha being used for flying kites in the city of Delhi. The facts in these cases shows that in all the four petitions, young persons have had to suffer sudden deaths due to slitting of the throat while they were riding on their single-track vehicles i.e., Scooters and Motor Cycles. The unfortunate deaths of the persons riding the said vehicles in these four petitions have taken place in August, 2021 and between the months of July and August in the year 2022.
3. Notice was issued in these matters and affidavits/status reports have been called from the Union of India as also from the Delhi Police/GNCTD. The stand of the GNCTD is that there is a complete ban on the sale, production, supply import and use of kite flying threads made of Chinese Manjha.
4. A reference is made in the affidavits to the order passed by the National Green Tribunal (NGT) vide order dated 10th August, 2020 in Execution Application No. 06/2020 in Original Application 384/2016 titled ‘Khalid Ashraf v. Govt. of NCT Delhi’. It has been submitted in these reports that the said order has been circulated to all the Deputy Commissioners of Police across Delhi. The relevant extract of the affidavit of the Delhi Police reads as:
7. That it is submitted that the order dated 10.08.2020 passed by the Hon’ble National Green Tribunal (NGT) in matter titled as “Khalid Ashraf v. Govt. of NCT of Delhi’ bearing EA No. 06/2020 (OA No. 384/2016) prohibiting manufacture, sale, storage, purchase and use of thread made of nylon, synthetic material and/or floated with synthetic substance which is nonbiodegradable for kite flying has already been circulated to field formation for strict compliance vide letter no. F.01/NGT/17/2743-51/Legal Cell/PHQ, dated 14.08.2020. A copy of the said letter dated 14.08.2020 with copy of the order dated 07.08.2020 are annexed herewith as Annexure-R2(Colly).
5. The affidavit also sets out details of cases registered against the persons selling such material. The chart is set out below:- S.No. FIR NO. & Date U/s PS
1. 703/19 Dt. 15.07.2019 188/IPC Sultan Puri
2. 704/19 Dt. 15.07.2019 188/IPC Sultan Puri
3. 718/19 Dt. 20.07.2019 188/IPC Sultan Puri
4. 389/19/Dt. 15.08.2019 188/IPC Mohan Garden
5. 390/19 Dt. 15.08.2019 188/IPC Mohan Garden
6. 357/19 Dt. 15.08.2019 188/IPC Rani Bagh
7. 562/19 Dt. 15.08.2019 188/IPC Nihal Vihar
8. 563/19 Dt. 15.08.2019 188/IPC Nihal Vihar
9. 564/19 Dt. 15.08.2019 188/IPC Nihal Vihar
10. 565/19 Dt. 15.08.2019 188/IPC Nihal Vihar
11. 804/19 Dt. 15.08.2019 188/IPC Mangol Puri
12. 848/19 Dt. 15.08.2019 188/IPC Sultan Puri
13. 851/19 Dt. 17.08.2019 188/IPC Sultan Puri
14. 813/19 Dt. 17.08.2019 188/IPC Mangol Puri
15. 815/19 Dt. 17.08.2019 188/IPC Mangol Puri
16. 859/19 Dt. 07.09.2019 188/IPC Mangol Puri
17. 863/19 Dt. 08.09.2019 188/IPC Mangol Puri
6. On behalf of the Union of India, the Special Secretary of the Department of Environment and Forest has again reiterated that the public officials like Tehsildar, Wildlife Inspectors, Sub-inspectors, Sanitary Inspectors have all been directed to implement the notification dated 10th January, 2017. The Directions issued in the said order read as: Directions:-
1. There shall be complete ban on the sale, production, storage, supply, import, and use of kite flying thread made out of nylon, plastic or any other synthetic material including popularly known as "Chinese manja" and any other kite- flying thread that is sharp or made sharp such as by being laced with glass, metal or any other sharp materials in the National Capital Territory of Delhi.
2. Kite flying shall be permissible only with a cotton thread, free from any sharp/ metallic/ glass components / adhesives/ thread strengthening materials.
7. The letter dated 31st December, 2020, issued by the Principal Secretary, Environment, Forest & Wild Life, Government of NCT of Delhi has also been placed on record. The said letter was which was addressed to the Commissioner of Police, Delhi giving directions to enforce the order banning `Chinese Manjha’ has also been placed on record. The directions issued in order dated 10th January, 2017 were reiterated in the said letter. The operative portion of the said letter reads as: “Therefore, in order to prevent adverse effects on human beings, birds. environment and electrical assets, ete: Govt. of NCT of Delhi had issued a Notification on 10 01.2017 (copy enclosed) making the following directions:
1. There shall be complete ban on the sale, production, storage, supply, import, and use of kite flying thread made out of nylon, plastic or any other synthetic material including popularly known as "Chinese manja" and any other kite-flying thread that is sharp or made sharp such as by being laced with glass, metal or any other sharp materials in the National Capital Territory of Delhi.
2. Kite flying shall be permissible only with a cotton thread, free from any sharp/ metallic/ glass components / adhesives/ thread strengthening materials. As per this Notification, officers of the rank of Sub- Inspectors and above of Delhi Police have been authorized for implementation of the above directions. Further, the compliance report has to be submitted to the concerned area SDM of Revenue Department, GNCTD who shall further take action under section 19 of the Environment (Protection) Act, 1986 on the violations reported and file the compiled compliance report to Chairman, DPCC. May I, therefore, request you to kindly instruct the concerned officers of Delhi Police to ensure the implementation of the mandatory provisions of the Notification in true letter and spirit in public interest at large and share the status of compliance by email at msdpec@@nic.in and direnv.delhi@gov.in.”
8. The Court is constrained to observe that despite all these steps being taken, the fact that deaths are still stated to be caused due to `Chinese Manjha’ shows that there needs to be a strict implementation of the ban. The said implementation would have to be carried out by the concerned government officials including the Police Authorities who have to ensure that FIRs which are registered do not remain paper FIRs and proper investigation is conducted so as to curb the menace of `Chinese Manjha’.
9. It appears that this `Chinese Manjha’ is being produced domestically in India as well. Therefore, the manufacturers and importers of the `Chinese Manjha’, as also the shopkeepers of the shops where the same is being sold, would have to be proceeded against in accordance with law.
10. Considering that kite flying threads and manjha are primarily used by children and young adults, it is the responsibility of the State to ensure that harmful kite flying threads and manjha are not made readily available in the market for sale.
11. Accordingly, in view of the above observations, the following directions are issued: -
1. A comprehensive investigation shall be conducted across Delhi by the Crime Branch, Delhi Police and a detailed report shall be placed on record giving the following details: a. The details of manufacturers, importers as also online retailers who are supplying these materials to the traders and consumers. b. Details of all the markets and e-commerce portals, where these threads and manjha are being sold and whether such shopkeepers have been alerted on a regular basis against the sale of these harmful products. c. The status of the FIRs which are listed above in paragraph 5 of this order and any other FIRs which have been registered across Delhi. It shall also be specified whether the shopkeepers and the sellers who sold the `Chinese Manjha’ have been arrayed as an accused or not. d. A clear statement specifying if any proceedings have been initiated against the public officials of the areas who had received the ban orders and have failed to implement the same.
2. In addition, a further affidavit shall be placed on record in respect of the Petitioners’ prayer for compensation which is being sought in these cases, inasmuch as deaths of innocent persons caused due to the unauthorised and illegal sale of `Chinese Manjha’ could also be argued as being dereliction of duty.
12. It is made clear that any status reports which would show that action has been taken, would have to be detailed and include the current position in these FIRs and whether chargesheets have been filed or not. It should also give the data on the accused persons who have been identified and whether the said cases are being prosecuted diligently or not.
13. Further, it is also necessary that the concerned Police and law enforcement authorities conduct periodic inspections to ensure that such material is not sold inasmuch as users and consumers of this material may not be aware of the dangers posed by this `Chinese Manjha’ and may be using it innocently.
14. Let compliance of the above order be carried out within six weeks and the required affidavits and status reports be placed on record.
15. Let the compliance report in this regard also be placed on record by the concerned Principal Secretary of GNCTD by the next date of hearing.
16. In the meantime, the GNCTD and all the SDMs, DMs, Tehsildars and other officials shall all be alerted once again of the ban orders against `Chinese Manjha’. They shall make proper visits to the various markets and issue strong warnings to all the traders selling these materials that strict action would be liable to be taken against them, if these materials are found to be sold in the said retail outlets.
17. At the end of the hearing, ld. counsel for the Petitioner submits that a plastic guard can be installed on bikes in order to render protection to riders of the bikes. Accordingly, the Delhi Police shall examine the feasibility of issuing an advisory in respect of use of such protective guards and place the same before this Court.
18. List on 12th April, 2023. These are part-heard matters.
PRATHIBA M. SINGH JUDGE FEBRUARY 10, 2023/MR/Am