Chandra Dhari Singh, J. - (1.) The instant petition under Section 482/483 of the Cr.P.C. has been filed against order dated 11.11.2019 passed by Special Judicial Magistrate (Pollution)/CBI, Lucknow in Complaint Case No.774 of 1989 (Uttar Pradesh Pollution Control Board, Lucknow v. M/S Daurala Sugar Works (Distillery Division) and Ors.) rejecting the application of the petitioners for their discharge under Section 245 of the Cr.P.C. from the prosecution lodged by the Uttar Pradesh Pollution Control Board, Lucknow under Section 44 of the Water (Prevention and Control of Pollution) Act, 1974 (hereinafter referred as 'Act of 1974') and the consequential confirming order passed by the Additional Sessions Judge, Court No.1, Lucknow dated 17.07.2020 in Criminal Revision No.688 of 2019 (M/S Daurala Sugar Works (Distillery Division) and Ors. v. State of U.P. & Anr.) dismissing the criminal revision preferred by the petitioners under Section 397 of the Cr.P.C.
(2.) Brief facts as borne out from the petition are as under:- (i) M/s Daurala Sugar Works (Distillery Division) is owned by M/s DCM Limited, Delhi having its registered Office at Kanchenjunga Building, 18, Barakhamba Road, New Delhi. The Distillery was installed in the year 1943. There is rearrangement of Company 'DCM Limited' along with three other Companies, i.e., DCM Industries Limited, DCM Shriram Industries Limited and Shriram Industrial Enterprises Limited, approved by Delhi High Court vide order dated 16.04.1990 under Section 391-394 of Companies Act, 1956 (hereinafter referred to as "Act, 1956"). Daurala Sugar Works, Daurala is now a unit of M/s DCM Shriram Industries Limited, New Delhi with effect from 01.04.1990. (ii) Since installation of Distillery, the Trade Effluent discharged by it, is used to be consumed by nearby growers to irrigate their fields and for that purpose petitioner/company constructed a channel running in about five kilometers. This channel joins a drain (sewer) known as kali Nadi which is neither a river nor watercourse nor stream. (iii) The Parliament enacted Act, 1974 and State of U.P. framed Rules, namely U.P. Water (Consent for Discharge of Sewage and Trade Effluent) Rules, 1981 (hereinafter referred to as "Rules of 1981"). It constituted 'Board' for the purpose of giving effect to provisions of Act of 1974 and Rules framed by State Government. Sections 25 and 26 of Act of 1974 required a running Industry to obtain consent from Board for discharging 'Trade Effluent' in a stream or well or sewer or on land. State Government issued Notification dated 21.09.1981 specifying 31.12.1981 as the date on or before which consent application should be filed by existing industries. Board vide Notification dated 06.04.1983 laid down effluent standards for discharge in stream and on land fixing BOD level at 100 MG per liter for existing Distilleries. (iv) For the purpose of setting up "Effluent Treatment Plant", the petitioners made an application to Collector on 13.07.1981 requesting for allotment of 31.38 acres land in Village Daurala and Machri, adjacent to petitioner-Distillery which was taken by State Government under U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as "Act of 1960"). Correspondence continued but petitioners could not get land as desired for setting up "Effluent Treatment Plant" whereupon the petitioners made its own efforts with individual farmers and could get land in June 1984 and June 1985 measuring 18.43 acres. The Board passed an order rejecting the application of petitioners for consent vide order dated 07.05.1983 and 16.08.1984. The petitioners again moved an application on 09.03.1985 to the Board requesting for grant of consent in which it also mentioned a time bound programme for setting up "Effluent Treatment Plant". The Board again declined consent vide order dated 25.06.1985/10.07.1985. The petitioner, however was permitted to continue on the plant of setting up "Effluent Treatment Plan". (v) Board issued a notice to the petitioners under Sections 25 and 26 read with 44 of Act, 1974 with further advise to complete installation of "Effluent Treatment Plant". Since petitioners' unit continuously was running without consent of the Board under Section 25/26, Board filed application in March 1986 under Section 33 of Act, 1974 before Chief Judicial Magistrate for a direction to petitioner-distillery to stop discharge of effluent. An order was passed by Magistrate on 29.03.1986 restraining Distillery from discharging effluent in sewer. The petitioners filed objection and thereafter learned Magistrate passed order on 17.05.1986 suspending interim order dated 29.03.1986 and directing petitioners to submit progress report of "Effluent Treatment Plant" to Board. The petitioner/D.C.M. Ltd. was also directed to ensure that it does not discharge polluted effluent without treatment. (vi) The Magistrate passed an order on 31.08.1987 directing petitioner-factory to bring down pollution level in 'Trade Effluent' upto prescribed standard by 15.10.1987. On 09.09.1987, sample was taken and BOD content in the sample were found as 775 MG/Liter and 725 MG/Liter. The petitioners made all efforts to bring down BOD level but could not reduce BOD level as required, though it could be reduced by over 97 per cent. The petitioners sought further time from Magistrate to bring down BOD level as required. The Magistrate did not extend time and passed stop order on 17.10.1987. (vii) A Writ - C No.9513 of 1989 was filed before this Hon'ble Court assailing orders passed by Uttar Pradesh Pollution Control Board rejecting the consent application filed by the petitioner and also for quashing the consequential proceedings under Section 33 and Section 44 of the Act of 1974. The said writ petition was dismissed vide order dated 21.07.2016. The said order was challenged in Petition for Special Leave to Appeal (C) bearing No.1944 of 2014 and the same was disposed of vide order dated 05.07.2018. (viii) The Pollution Board filed a complaint under Section 44 of the Act of 1974 before the Chief Judicial Magistrate, Meerut in the year 1989 by alleging inter alia that M/s Daurala Sugar Works (Distillery Division), Daurala is a unit of M/s DCM Ltd., which is a company within the meaning of Section 47 of the Act of 1974 and has been discharging the polluting material (effluent) ultimately into stream Kali River. According to the allegations made in the complaint, initially the consent application of the Industry under Section 25/26 of the Act of 1974 was rejected on June 25, 1985 and thereafter, the industry was inspected on April 3, 1986 and the representatives of the Pollution Board collected sample of the effluent discharged by the Industry. It was contended in the complaint that the trade effluent was found not meeting the norms laid down by the Pollution Board and therefore, the consent given by the industry dated January 4, 1986 was rejected by the Pollution Board through order dated May 6, 1986. It is further contended that since the industry was running without consent of the Pollution Board as is required under Section 25/26 of the Act of 1974, therefore, the complaint under Section 44 of the Act of 1974 was filed against the petitioners-company. The complaint was filed against the then Chairman, Senior Managing Director and Directors. In support of the complaint, the Pollution Board has relied upon letter dated June 25, 1985 by which the consent application was initially rejected, inspection report, notice of inspection, notice dated December 11, 1985 under Section 25/26 of the Act of 1974, order dated May 6, 1986 and the Board resolution dated June 8, 1987. (ix) The said complaint filed by the Pollution Board under Section 44 of the Act of 1974 in the Court of Chief Judicial Magistrate, Meerut was transferred to the Special Judicial Magistrate (Pollution)/CBI, Lucknow and after transfer of the complainant, a Complaint Case No.774 of 1989 was registered before the Special Judicial Magistrate (Pollution)/CBI, Lucknow. (x) During the pendency of the said Complaint Case No.774 of 1989 before the Court of Special Judicial Magistrate (Pollution)/CBI, Lucknow, the Law Officer namely Shri Chandra Bhal Singh, who was authorized by the Pollution Board to file the complaint under Section 44 of the Act of 1974, expired some time in the year 1998. (xi) On behalf of the Pollution Board, statements of Shri J.S. Yadav and Shri Prakhar Kumar were recorded as P.W.-1 and P.W.-2 under Section 244 of the Cr.P.C.. Both the witnesses produced by the Pollution Board were duly cross examined by the petitioners. (xii) After completion of evidence under Section 244 of Cr.P.C., a discharge application under Section 245 of Cr.P.C. was filed by the petitioners on September 26, 2019 on the grounds that the prosecution had made an attempt to establish their case on the basis of photocopies of documents, which is wholly impermissible in view of the provisions of Section 64/65 of the Indian Evidence Act, 1872. The U.P. Pollution Control Board filed an objection on October 4, 2019. (xiii) The Court of Special Judicial Magistrate (Pollution)/CBI, Lucknow rejected the discharge application filed by the petitioner under Section 245 of Cr.P.C. on November 11, 2019. Being aggrieved by the said order passed by the Court below, the petitioners have preferred Criminal Revision No.688 of 2019. The said revision was also rejected by revisional Court vide order dated 17.07.2020. Hence, the instant petition has been filed challenging both orders dated 11.11.2019 and 17.07.2020 passed by the Courts below.
(3.) Shri Prashant Chandra, learned Senior Counsel assisted by Shri Sudeep Kumar, learned counsel appearing for the petitioners has submitted that while rejecting consent application preferred by the petitioners, the statutory procedure for conducting an inquiry for disposing of discharge application as provided under U.P. Water (Consent of Discharge of Sewage and Trade Effluents) Rules, 1981 was not followed. It is submitted that their valuable right of re-testing of the sample allegedly collected by the Pollution Board in view of the procedure given in Sub-Sections 3, 4 & 5 was contravened.;