N.N.Sharma of Oswal Agro Mills vs Punjab State Board for the Prevention & Control of Water Pollution .

G. S. Chahal, J.

N. N. Sharma, General Manager of M/s Oswal Agro Mills, Phagwara, the petitioner has moved this criminal miscellaneous u/s 482, Cr.P.C. for quashing of the complaint dated 12.3.91 for offence u/ss 43/44 read with section 47 of the Water (Prevention & Control of Pollution) Act and the summoning order passed by the Judicial Magistrate I Class, Phagwara.

The prosecution of the petitioner and three others was launched by the respondent Board, on the allegations that vide Punjab Govt. Notification dated 27.3.80, published in the State Govt. Gazette dated 28380. 30.6.80 was the specified date on or before which the applications for consent shall be made under subsection (2) of section 25 read with section 26 of the Act. A publication with respect to this notification was also made. M/s Oswal Agro Mills. Phagwara (briefly the Company'') is discharging its trade effluent in the shape of water mixed with chemicals. For discharging the effluent, the consent of the respondentBoard is necessary. The Company applied for getting the consent of the Board which was granted for a period of one year on 1.6.78 vide consent No. 295, subject to the following main conditions that the Company would put up the treatment plant so as to bring down the BOD content of the trade effluent within the tolerance limits. within a period of 6 months. The consent was subsequently renewed on 3.7.86 for one year. Conditions had been imposed that effluent discharged from the authorised outlets shall conform to IS 2490 (Part1) 98, adopted by the Board for such discharge into public sewer. This consent of the Board expired on 30.7.87. The Company, however, did not comply with any of the conditions which were imposed on it. It also did not get the consent renewed After the date of expiry and the effluent was being discharged without the consent of the Board till today. After inspection, the Company was asked orally, as well as through notices, detailed in paragraph 8 of the complaint, for compliance with the Conditions but it has neither done so, nor has it applied. for renewal of the consent. As such, the Company and three of its officers, Managing Director, General Manager and Chief Chemist were criminally liable.

The learned counsel for the petitioner has raised two points. Firstly he urges that the summoning order is not a speaking order and on that ground alone, it is liable to he quashed and, secondly, the petitioner had made an application to the respondentBoard for the grant of consent and same having remained pending for 4 months, was to be deemed as allowed. La this situation, no prosecution could be launched. I, however, find no force in the contention raised by the learned counsel. The summoning order reads as under :

"Complaint presented today. It be registered. The complaint has been presented by the complainant who is a public servant in the discharge of his official duty. So the recording of the preliminary evidence is dispensed with. After going through the record and on hearing the complainant, I am satisfied that there are sufficient grounds to proceed against the accused for an offence under section 43/44 read with section 47, of the Water (Prevention & Control of Pollution), Act, 1974. So the accused be summoned for 8.4.1991."

A bare reading of the order shows that the Magistrate had not only examined the record, but also heard the complainant and then formed his judicial opinion that there were sufficient grounds to proceed against the accused persons and having satisfied himself, he had ordered the issuing of summons. It would have been only unnecessary exercise to have added the de ails of facts given in complaint. Since it was a complaint by a public servant, recording of his statement was not necessary and the Magistrate had only to examine the record and form a judicial opinion that there were, sufficient grounds for proceeding with the complaint. The order in question is, thus, held to be legally valid. Section 25 (4) of the Act reads as under "125 (4). The State Board way grant its consent. referred to in subsection (1) subject to such conditions as it may impose, being

(a) in the case of a new or altered outlet conditions as to the point of discharge into the (stream or well or sewer or on land) or the construction of the outlet, or as to the use of that or any other outlet, for sewage or trade effluent from the same land or premises; and

(b) in the case of a new discharge, conditions as to the nature and composition, temperature, volume or rate of discharge of the effluent from the land or premises from which the new discharge is to be made, and any such conditions imposed shall be binding on any person using the outlet or discharging the effluent from the land or premises aforesaid".

A bare reading of the above provisions shows that the State Board is competent to impose any conditions while granting its consent. It is the case of the respondent Board that such conditions were imposed at the time of granting consent in the year 1976, and again on 31.7.86. The allegation is that the Company has not complied with the conditions. Further case of the respondent Board is that in spite of notice served, the petitioner has not applied for the grant of consent. It shall be a matter of evidence if the petitioner had, in fact, applied for granting the consent by the respondent Board and the same having not been granted within the specified period, it amounted to automatic consent. This fact can only be gone into by the trial Magistrate after evidence is led. Availability of defence of an accused person, cannot be considered as a ground for quashing of the complaint itself. The impugned complaint contains all the necessary ingredients of the offence under the Act and no case, is made out for quashing thereof, I hereby dismiss the criminal miscellaneous.