Crl. Misc. No. M-29148 of 2009 (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M-29148 of 2009 DATE OF DECISION: 2.11.2010 Harsh Kumar ..........Petitioner Versus Chandigarh Pollution Control Committee ..........Respondent BEFORE:- HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present:- Mr. Sanjiv Bansal, Advocate for the petitioner. Mr. J.R. Syal, Advocate for the respondent. **** DAYA CHAUDHARY, J. The present petition under Section 482 Cr.P.C. has been filed for quashing of complaint No. 7403/09 dated 8.8.2009 (Annexure P-6) instituted under Sections 25/26 read with Section 49 of the Water (Prevention and Control of Pollution) Act, 1974 (hereinafter referred to as “the Act ”), pending in the Court of Chief Judicial Magistrate, Chandigarh. In this case, while issuing notice of motion on 12.1.2010, following contention of learned counsel for the petitioner was recorded:- “Learned counsel for the petitioner contends that Section 49 of the Water (Prevention & Control of Pollution) Act, 1974 provides for a complete bar upon the Court to take cognizance of an offence unless the accused has been given notice of not less than 60 days.” In response thereto, reply has also been filed on behalf of the respondent, which is on record. Learned counsel for the petitioner contends that the Crl. Misc. No. M-29148 of 2009 (2) prosecution has been launched only on the basis of inspection report dated 26.11.2008 without pleading in the complaint and even without annexing it with the complaint. Learned counsel further submits that as per Section 49 of the Act, there is complete bar to take cognizance of an offence unless the accused is given a notice of not less than 60 days. The petitioner was never served any notice as required under Section 49 (1) (b) of the Act and the proceedings for non-compliance of the mandatory provision are totally illegal and cannot sustain. It is also the argument of the learned counsel for the petitioner that mandatory provisions of Section 25 (7) of the Act provide for a deemed consent upon expiry of four months. The competent authority while passing order dated 18.2.2009 was also required to consider that a period of more than four months had expired after the information as sought by the Board was supplied on 22.9.2008 and therefore, once there was no refusal of the Pollution Committee in granting the consent, the consent was deemed to have been granted and as such prosecution could not be launched against the petitioner. Non compliance of the mandate contained in Section 49 (1) (b) ought to have persuaded the Court to decline issuance of process against the petitioner as no such notice has been issued to launch prosecution. The trial Court has initiated the process on the complaint without non-application of mind and without being satisfied with regard to commission of offence under the provisions of Act. Learned counsel for the respondent raised the preliminary objection that the petitioner has contravened the provisions of Act and are liable to pay penalty under Section 44 of the Act. The petitioner has neither taken any proper action for controlling the water pollution nor submitted an application for consent to proper authority and consequently a direction was proposed under Section 33-A of the Act, which was confirmed vide order dated 21.4.2008 and directions were issued to Superintending Crl. Misc. No. M-29148 of 2009 (3) Engineer Electrical Circle, U.T., Chandigarh and Superintending Engineering, Public Health, Municipal Corporation, Chandigarh to disconnect the electricity and water connection of the petitioner unit. Learned counsel for the respondent further submits that a surprise inspection was done on 4.1.2008 by the concerned officer and it was found that unit was in operation and was undertaking electroplating of screws and water being utilized in the process and was also discharging untreated affluent, leading to water pollution. The show cause notice was issued on 16.1.2008 giving 15 days time to show cause and explain as to why the proposed direction may not be confirmed and as to why prosecution proceedings may not be initiated. Moreover there was no requirement that analyst report should have been with the show cause notice as the petitioner has also admitted the factum of operating electroplating plant without previous consent of the appropriate authority,as per requirement of Section 25 of the Act. Although the petitioner applied for consent vide application dated 2.5.2008 but without obtaining any consent, the petitioner continued to operate the unit and violated the provisions of Section 25/26 of the Act. Learned counsel for the respondent also submits that the case of the petitioner is not covered by the provision of Section 49 (1) (b) but the same is covered by the provisions of Section 49 (1) (a) of the Act. I have heard the arguments advanced by learned counsel for the petitioner and have also gone through the contents of the complaint as well as other documents available on record. In the present case, the petitioner is running a unit in the name and style M/s JAY BEE Fasteners in Industrial Area, Phase-I, Chandigarh. During inspection, it was found that the said unit was in operation and was undertaking electroplating of screws and water being utilized in the process and untreated effluent was being discharged into the environment, without any treatment, leading to water pollution. Although, the firm applied for Crl. Misc. No. M-29148 of 2009 (4) consent vide application dated 2.5.2008 but the same was found incomplete. Since the firm was violating the provisions of the Act and was liable for penalty under Section 44 of the Act, a criminal complaint was filed in the Court of Chief Judicial Magistrate, Chandigarh and the petitioner was summoned. The argument raised by learned counsel for the petitioner that the process was in between, as an application was submitted by the petitioner but certain objections were there, therefore, no action can be taken without issuing any notice, has no merit. As per section 25 of the Act, certain restrictions are there and without any previous consent of the State Board, the same cannot be operated. The previous consent of the State Board for discharge of trade effulent into seweage was also required. Neither any proper action for controlling the water pollution was taken by the petitioner nor any application for consent to operate was made to the appropriate authority and a direction was proposed under Section 33-A of the Act. A show cause notice was also issued to the petitioner on 16.1.2008 by giving 15 days time to show cause as to why the proposed direction may not be confirmed but the petitioner did not reply to the said notice. Although the petitioner applied for consent vide application dated 2.5.2008 but without obtaining the consent, the petitioner continued to operate the unit and violated the provisions of Section 25/26 of the Act. The dispute between the petitioner and respondent is with regard to applicability of Section 49 (i) (a) and Section 49 (i) (b). As per respondent, case of the petitioner is covered by the provisions of Section 49 (i) (a). Section 49 (i) (a) and 49 (i) (b) are reproduced as under:- “49. COGNIZANCE OF OFFENCES. (1) No court shall take cognizance of any offence under this Act except on a complaint made by:- (a) a Board or any officer authorized in this behalf by it; or (b) any person who has given notice of not less than sixty Crl. Misc. No. M-29148 of 2009 (5) days, in the manner prescribed, of the alleged offence and of his intention to make a complaint, to the Board or officer authorized as aforesaid and no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act.” Section 25 of the Act puts restriction on the new outlet and new discharge and said provision requires previous consent of the State Board for discharge of trade effluent into seweage. The petitioner neither took any action for controlling the water pollution nor submitted an application for taking any consent to operate and ultimately show cause notice was issued but no reply was submitted to the same. Accordingly, directions were issued to the Superintending Engineer, Electrical Circle, U.T., Chandigarh for disconnecting the electricity and water connection of the unit. Since the objection on the application for consent was not removed, the same was returned and during inspection, the unit was found operational, penal action was proposed and criminal complaint was filed. Moreover, the case of the petitioner is covered by the provisions of Section 49 (i) (a) of the Act and he cannot take this plea that his case is covered by the provisions of Section 49 (i) (b). There is no merit in the contentions raised by learned counsel for the petitioner and the petition being devoid of any merit is hereby dismissed. 2.11. 2010 (DAYA CHAUDHARY) pooja JUDGE Note:-Whether this case is to be referred to the Reporter .......Yes/No