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2017 (5) TMI 1773 - HC - CustomsDirection to close down the inland container depot at Tuglakabad (ICD) and submit a report along with photographs - revision petition filed on the ground that such directions by the learned Magistrate were not sustainable under Section 133(1)(b) of the Code of Criminal Procedure as no evidence was taken prior to passing of such an order and that the order was in the nature of a knee jerk reaction - HELD THAT - The power under the aforesaid Section can be exercised either on receipt of a police report or other information under certain circumstances which have been enumerated in this Section. It begins with a conditional order under Section 133, which could be served on the person against whom the order is made as if it were a summons. On the service being effected, the person concerned may carry out the order, in which case, the proceedings will come to an end. If he does not, he has to show cause against the order or apply to the Magistrate to test whether the order is reasonable and proper. If the person does not comply with the order and fails to appear before the Magistrate, the order is made absolute. He may also be prosecuted under Section 188 of the Indian Penal Code - If the person disputes the existence of any public right, the Magistrate will hold preliminary enquiry and if he finds the contention good, the question will be left to be determined by a Civil Court. If there is no substance in the contention, the enquiry will proceed. When an order is made absolute under Section 136 or Section 138, the person will be called upon to carry it out within the specified time and if he fails to carry it out, he could be prosecuted under Section 188 of the Indian Penal Code. From the order dated 06.05.2017 which is a conditional order of closing down the ICD, Tuglakabad and submitting the report along with the photographs before the learned Magistrate on 09.05.2017, it does not appear that any enquiry was held by the learned Magistrate. As such, thereafter, the order dated 09.05.2017 containing the impugned directions only means that the order of 06.05.2017 has been made absolute by order dated 09.05.2017. However, the order dated 09.05.2017 has been nomenclatured as an interim order under Section 133 Cr.P.C. - The provisions of the Code enjoin the Magistrate, for the purposes of an enquiry under Section 137 or 138, to direct a local investigation or summon and examine any expert, subject to the provisions of Section 140 of Cr.P.C. It appears that the plan contains guidelines for all types of possible disasters like fire, chemical leaks, spills, terrorist activities, earthquakes etc. Various standard operating procedures, instructions and guidelines have been issued for minimizing the chances of mishap and losses. The guidelines are all comprehensive and take into account the precautions for storage and transportation of hazardous goods, cargo at different levels. Emergency response instructions have also been issued and an awareness programme is also in the offing - The plan definitely evinces the commitment of the organization to the safety of its employees, the public and the environment. It appears to be imperative, that the matter be referred to the learned Magistrate for a final determination regarding making of an absolute order for removal of nuisance. The Magistrate would definitely have to apply its mind as to whether the existence of ICD, Tuglakabad with the storage facilities and with the requirement of complying with the safety standards under the DGFT and IMDG Code, can at all be called nuisance. The matter is remitted to the Court of the learned Magistrate for holding an enquiry, hearing the petitioner and the respondent No.2 and if needed directing for local investigation by summoning and examining any expert under Sections 139 and 140 of the Code of Criminal Procedure, and thereafter passing necessary orders to remove nuisance if at all it exists and to ensure the safety of people and environment - Revision petition disposed off.
Issues Involved:
1. Legality of the Magistrate's order under Section 133(1)(b) Cr.P.C. 2. Compliance with safety regulations and disaster management plans. 3. Responsibility and liability of CONCOR and Customs Department. 4. Impact on national interest and commercial expediency. Detailed Analysis: 1. Legality of the Magistrate's Order under Section 133(1)(b) Cr.P.C.: The judgment scrutinizes the Magistrate's order dated 06.05.2017 and 09.05.2017, which directed the closure of the Inland Container Depot (ICD) Tuglakabad and removal of hazardous materials. Section 133 of the Cr.P.C. mandates a conditional order for removal of nuisance, which requires an inquiry. The court noted that the Magistrate did not conduct the necessary inquiry before passing the conditional order, thus making the order unsustainable. The court emphasized that the inquiry is mandatory under Sections 133 to 138 Cr.P.C., and any order without following these provisions is invalid. 2. Compliance with Safety Regulations and Disaster Management Plans: The petitioner argued that CONCOR has a comprehensive disaster management plan compliant with the Disaster Management Act, 2005. The plan includes guidelines for handling hazardous materials, emergency response instructions, and awareness programs. The court acknowledged the existence of these safety measures and noted that CONCOR's disaster management plan aims to prevent mishaps and minimize accidents. The court appreciated the prompt action taken by the Delhi Police and ICD Tuglakabad during the gas leak incident. 3. Responsibility and Liability of CONCOR and Customs Department: The court examined the roles of CONCOR and the Customs Department. CONCOR, as the custodian of goods under Section 45 of the Customs Act, 1962, is responsible for the safe storage of containers, including hazardous materials. The Customs Department's role is regulatory, ensuring compliance with the Foreign Trade Policy and proper duty payments. The court noted that the Customs Department was not given an opportunity to be heard by the Magistrate, which was a procedural lapse. 4. Impact on National Interest and Commercial Expediency: The petitioner argued that the blanket order to remove all containers from ICD Tuglakabad would be prejudicial to national interest and commercial expediency. The court recognized that ICD Tuglakabad is a significant gateway port, generating substantial customs revenue and providing employment opportunities. The court highlighted the need for a balanced approach, considering both public safety and the commercial needs of the nation. Conclusion: The court remitted the matter to the Magistrate for a final determination regarding the removal of nuisance, directing the Magistrate to conduct a proper inquiry, hear the petitioner and the Customs Department, and consider local investigations or expert examinations if needed. The court stayed the conditions imposed in entries (b) and (c) of the order dated 09.05.2017, and modified entry (a) to allow the petitioner to shift hazardous containers within a specified timeframe. The case was listed before the Magistrate on 10.07.2017 for further proceedings. The revision petition was disposed of with these directions.
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