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TMI Blog2008 (12) TMI 832X X X X Extracts X X X X X X X X Extracts X X X X ..... d it has been named as - U.P. Pollution Control Board (hereinafter referred to as the Board ) which is the appellant herein vide notification No. 2179/9-2-100-74 dated 13.07.1982. On the application submitted by M/s Modi Carpets Ltd., Raebareli, seeking consent to discharge effluent, the appellant-Board granted conditional consent to discharge their trade effluent in the river Sai. Since the conditions of consent were not being complied with by M/s Modi Carpets Ltd., a letter dated 30.4.1983 was sent by the appellant-Board to M/s Modi Carpets Ltd., Raebareli informing that non- compliance of the consent conditions is an offence under Section 44 of the Act. On 07.06.1983, the inspection of unit of M/s Modi Carpets Ltd. was done by the officers of the Board wherein it was found that polluted trade effluent was being discharged into the river Sai through drain without any treatment and construction of effluent treatment plant was yet to be started. On 19.01.1984, the Board again sent a letter to M/s Modi Carpets Ltd. that conditions of the consent order dated 22.1.1983 were not complied with. Again it was reiterated that non-compliance of the conditions of consent would be an offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he High Court wherein it was stated that the complaint could not be quashed at the initial stage and whether a person is responsible for conduct of day-to-day business of the Company or not, is a question which has to be decided by evidence. In any event it was stated that the complaint discloses materials to proceed further. 6. By impugned order dated 29.11.2004, the High Court quashed the complaint so far as it related to respondent No. 1 on the main ground that there was no material on record to show that respondent No. 1 was, at the relevant time, incharge and responsible to the company for conduct of its business. Aggrieved by the said judgment of the Lucknow Bench, the appellant-Board has filed the above appeal by way of special leave. 7. Heard Mr. Rakesh K. Khanna, learned Senior Counsel, appearing for the appellant-Board and Mr. L.N. Rao, learned senior counsel, appearing for the 1st respondent. 8. The only point for consideration in this appeal is whether the complaint of U.P. Pollution Control Board discloses any material against the first respondent i.e., Dr. Bhupendra Kumar Modi, Joint Managing Director, particularly, his control over the decision making proces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 22.01.1983 and to construct proper effluent treatment plant and discharging without consent of the Board. This has been asserted in para 15 of the complaint. In para 16, it is stated that the accused persons, namely, 2-13 are Chairman, Managing Director/Joint Managing Director, Directors, Secretaries and Managers of M/s Modi Carpets Ltd., Raebareli, who are responsible for the conduct of the business of the Company and also for not complying the conditions and for not constructing proper plant for the treatment of their highly polluting trade effluent so as to conform to the standard laid down by the Board. In the same paragraph, it is further asserted that the accused persons are deliberately avoiding the provisions of Section 25 of the Act for which they are punishable under Section 44 read with Section 47 of the Act. In para 17 of the complaint, it is specifically stated that at the time of commission of offence all the persons were in-charge of the business of the Company and responsible for the day-to- day working of the Company and also for conducting of the business of the Company and continuous commissioning of offence under Section 44 of the Act and the construction of e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation.- For the purposes of this section,- (a) company means any body corporate, and includes a firm or other association of individuals; and (b) director in relation to a firm means a partner in the firm. Section 25 speaks about restrictions on new outlets and new discharges and Section 26 relates to provision regarding existing discharge of sewage or trade effluent. Section 44 speaks about penalty for contravention of Section 25 or Section 26. 13. It is not in dispute that the first respondent before letting out trade effluent into a stream or a river has to satisfy certain conditions in terms of the provisions of the Act and the order of the authorities concerned. It is also not in dispute that without a consent order by the Board the Company cannot let out untreated effluent into a land or stream or river. Though a consent order was issued by the Board it has been specifically stated in the complaint that those conditions have not been fulfilled by the Company. In those circumstances, in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y end in conviction of the accused. This Court has held that in the following cases, an order of the Magistrate issuing process against the accused can be quashed: (1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; (2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused; (3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like. No doubt the grounds mentioned above are purely illustrative and it provides only guidelines to indicate contingencies where the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad dated 16.05.1984 setting aside, in its revisional jurisdiction, order of the CJM, Ghaziabad dated 03.11.1983 directing issue of process against the respondents therein on a complaint filed by the appellant Pollution Control Board under Section 44 of Water (Prevention and Control of Pollution) Act, 1974. The issue involved therein was whether the Chairman, Vice-Chairman, Managing Director and Members of the Board of Directors of M/s Modi Industries Limited, the company owning the industrial unit called M/s Modi Distillery could be proceeded against on a complaint against the said industrial unit. Learned Single Judge of the High Court found that there was no sufficient ground against the respondent inasmuch as the allegations made in the complaint do not constitute an offence punishable under Section 44 for the admitted contravention of Sections 25(1) and 26 read with Section 47 of the Act. The facts narrated above clearly show that the same is identical to the case on hand. This Court taking note of the provisions particularly, Sections 25(1)(2) and 26 as well as Sections 44 and 47 and the averments in the complaint after finding that prima facie materials are available and all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 25.08.1984. The Board moved before the High Court in a revision against the said order. Though the revision was moved in 1984 itself it took 15 years for the High Court to dismiss the revision petition as per the order passed by a learned Single Judge on 27.07.1999. Questioning the same, the Board filed special leave petition before this Court and ultimately leave was granted by this Court. It is useful to refer the facts and other details stated in the complaint as noted by this Court. Thomas, J. (as he then was) speaking for the Bench in paras 10 and 11 observed thus: 10. ...In the complaint filed by the appellant before the Chief Judicial Magistrate, the Company (M/s Mohan Meakins Ltd.) has been arrayed as the first accused and the other persons who were arrayed as Accused 2 to 10 were described as the Directors of the said Company. The 11th person arrayed in the complaint as accused is described as the Manager of the Company. The averments in the complaint show that the Distillery Unit of the Company at Daliganj, Lucknow, has been discharging noxious trade effluents into River Gomti and causing continuous pollution of the river. It was further averred in the complaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ponsible for the act and therefore, they are liable to be proceeded against according to the law . Taking note of the averments in the complaint against the Directors, Managers and the ingredients of Section 47 of the Act, this Court declined to accept the reasoning of the High Court and Sessions Court for quashing the complaint thereby set aside both the orders and directed the trial Court to proceed with the case in accordance with law. 20. In the case on hand which is also similar to Mohan Meakins Ltd. had commenced its journey in the year 1985, nonetheless lapse of such long period cannot be a reason to absolve the respondents from the trial. In a matter of this nature, particularly, when it affects public health if it is ultimately proved, courts cannot afford to deal lightly with cases involving pollution of air and water. The message must go to all concerned persons whether small or big that the courts will share the parliamentary concern and legislative intent of the Act to check the escalating pollution level and restore the balance of our environment. Those who discharge noxious polluting effluents into streams, rivers or any other water bodies which inflicts on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n exercise of the inherent powers under Section 482 of the Crl. Procedure Code. However, it is not necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. 22. In the light of the above discussion and in view of the specific averments in the complaint as referred to by us in the earlier paragraphs coupled with the statutory provisions, namely, Sections 25, 26, 44 and 47 of the Act, we are unable to share the view expressed by the High Court in quashing the complaint insofar as the first respondent herein. Accordingly, we set aside the same. The Special Judicial Magistrate (Pollution) is directed to proceed with the complaint and dispose of the same in accordance with law. If the first respondent herein applies for dispensing with his personal presence in the Court, after making the first appearance, the Special Court can exempt him from continuing to appear in the Court by imposing any condition which the Court deems fit. Subject to the above observation, we set aside the impugned judgment of the High Court and direct the Special Judicial Magistrate (Pollution) to proceed with the case in a ..... 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