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TMI Blog2017 (5) TMI 1773X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tuglakabad. The emission caused irritation in the eyes of many residents of the locality including children. 2. On such report, the police galvanized into action. The entire area from where the emission had taken place was cordoned off with the help of staff and efforts were made for quick evacuation and transportation of the victims to the hospital. Fire brigades, Delhi Disaster Management team and the police staff swooped into action for finding out as to whether any victim was trapped in the school premises situated nearby. 3. It was then learnt through a CISF staff deployed near the exit gate of the CONCOR that some kind of poisonous gas/chemical had leaked from a truck. It was found that the chemical/gaseous substance which escaped from one of the containers kept in the truck was chloromethyl pyridine 60%, which was imported from China for Crystal Crop Protection Pvt. Ltd and the same was being transported in the truck No.HR-38T-8972 from the custom bound area of the CONCOR. As an emergency measure, the name of the chemical/gas was passed on to all hospitals in order to facilitate the diagnosis and the treatment of the victims accordingly. 4. The gas leak soon spread ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing of such an order and that the order was in the nature of a knee jerk reaction. 10. This Court heard the matter for the first time on 09.05.2017 only. The initial response of Ms.Pinky Anand, learned Additional Solicitor General who appeared on behalf of the petitioner was that there was no quarrel with directions contained in (a), (d) and (e) viz. to remove all the materials i.e. all obnoxious chemical/gas, any explosive material and any other material which could cause health hazard to the public in the vicinity; disaster Management plan be submitted immediately to mitigate any emergency/disaster and an undertaking from petitioner/CONCOR be filed in the Court of the Magistrate to the effect that no container having obnoxious chemical/gas/explosive be allowed at the site, which may lead to any disaster. 11. However, the directions in (b) i.e. to release all the containers from the site in a phased manner and (c) not to accept any container at the site, were stated to be unwarranted and harsh. It was submitted on behalf of the petitioner that CONCOR is a Government of India undertaking which is conscious of its responsibilities and in the past, had been exercising due dili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onous/obnoxious commodities and that it would be really difficult, albeit unnecessary for all the containers to be removed from the site and not to accept any container till further orders. It was suggested that such a blanket order is, in the first instance, not sustainable in the eyes of law and in the second, it would be prejudicial to the national interest. The petitioner would be duty bound to store containers which have IMDG, Customs and DGFT clearance. 17. However, as an interim measure, this Court directed for the stay of the directions contained in (b) and (c) till further orders. 18. Thereafter, on hearing the parties and on realizing that the Customs Department would be a necessary party in the present case, directed the Customs Department to be arraigned as respondent No.2. In the meantime, because of petitioner and respondent No.2, demonstrating that even directions in (a) is uncalled for, this Court stayed the operation of direction in (a) as well. 19. It was also submitted on behalf of the petitioner that CONCOR, right from its inception has been carrying out its Exim activities strictly in terms of the Indian Customs Act and DGFT guidelines. The aforesaid g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 has only to perform a regulatory function under the Customs Act, 1962 in the premises of CONCOR. Its role, therefore, is limited to ensuring that goods imported are in consonance with the Foreign Trade Policy of India and that proper duties have been paid on them. 26. While assailing the order containing the directions to be complied with, Mr.Narula, learned advocate submitted that the commodity in question (Chloromethyl pyridine) is a freely importable item under the Exim policy and Foreign Trade policy. The direction contained in (a) is of such a wide range which includes phasing out of chemical gases and materials which may be even freely importable that it cannot be executed. Any direction for removing of such materials would not only gravely prejudice the export and import of freely importable goods but would also be prejudicial in national interest. 27. The directions to remove the containers from the ICD, Tuglakabad would only be in conflict with various provisions of the Customs Act. Removal of any container is only possible after normal assessment and duty payment in cases where Bills of Entry under Section 46 of the Customs Act has been filed. In other cases, wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the public; or (b) that the conduct of any trade or occupation, or the keeping of any goods or merchandise, is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated; or (c) that the construction of any building, or, the disposal of any substance, as is likely to occasion configuration or explosion, should be prevented or stopped; or (d) that any building, tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, and that in consequence the removal, repair or support of such building, tent or structure, or the removal or support of such tree, is necessary; or (e) that any tank, well or excavation adjacent to any such way or public place should be fenced in such manner as to prevent danger arising to the public; or (f) that any dangerous animal should be destroyed, confined or otherwise disposed of, such Magistrate may make a conditional order requiring the perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the order is made absolute. The Magistrate, may, when the person against whom an order is made under Section 133 appears before him or contests the existence of any public right before him, direct a local investigation or summon and examine any expert. 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. 32. From a reading of Sections 133 to 138, it would appear that the enquiry which is contemplated in the aforesaid sections is mandatory and any order for removal of public nuisance without following the mandatory provisions is unsustainable. 33. For a conditional order under Section 133(b), after the invocation of the Section either on the basis of a police officer‟s report or other information and on taking such eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner which indicated that out of 8845 containers lying in the premises of ICD, Tuglakabad, only 230 containers were identified as hazardous cargo as covered under the IMDG Code. Out of the aforesaid 230 containers, 99 containers have been received in the ICD after 01.01.2017. Those 99 containers, it has been undertaken by the petitioner, would be delivered to the importers/shipping lines after clearance of the Customs within a period of three weeks. In case any container is unclaimed, abandoned or put on hold by the Customs Department, it would be dealt with as per the provisions of the Customs Act. 6 out of 99 containers belong to the aforesaid category. 27 containers, in which fire crackers have been stored, have been confiscated by Customs. They have been released to the ICD for destruction with a direction to dispose of through a custom approved agency namely M/s.Ramky Enviro Engineers Ltd under the supervision of the Customs authorities. It has been undertaken that the destruction of these containers would be completed within six weeks. 37. Out of 104 containers which were received in the ICD prior to 01.01.2017, the petitioner would require necessary clearance from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Magistrate has not displayed a balanced approach in weighing the safety and security of the lives of people on the one hand and compulsions of a modern nation which is still under process of building and commercial expediency on the other. 41. What the learned Magistrate, while passing the impugned directions, has forgotten is that with the growing business and variety of cargo being transported in containers throughout the length and breadth of the country, some risk is always posed but handling such containers would, in any event, be an important aspect of the growth of the nation. 42. A comprehensive disaster management plan of the petitioner is already in place. A copy of the disaster management plan of the petitioner has been handed over in Court which has been taken on record. 43. Taking into account that handling of such containers with hazardous substances poses high risk not only in the premises but also while on transport, the disaster management plan of CONCOR includes technical and organizational measures to control and neutralize the unintentional escape of hazardous material at all places. The plan of the petitioner, it is urged, is aimed at preventing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts from around the area after cordoning it off and using all means to take the injured/victims to the nearest hospitals. In fact, prompt instructions were given in all hospitals regarding the name of the chemical in the container so as to make it convenient for the doctors to diagnose and provide medicine/help/succor. 51. All these aspects, as has been stated earlier could have been brought to the notice of the learned Magistrate if he would have undertaken the enquiry as contemplated under Section 133 (b) of the Code of Criminal Procedure. 52. It, therefore, 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. 53. In the meantime, the petitioner Corporation shall respect its undertaking and would ensure that no untoward incident takes place. 54. Thus, the matter is remitted to the Court of the learned Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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