- (1.) Challenge in this petition under Section 482 of Criminal Procedure Code(for short 'CrPC') is the prosecution launched against the petitioners by way of criminal Complaint Case No.1720 of 2009 (U.P. Pollution Control Board, Lucknow Vs. M/s Kothari Fermentation and Biochem Ltd., Bulendshahr) pending in the court of Special Judicial Magistrate, CBI (Pollution), Lucknow including the order dated 13.05.2009 (Annexure 13) and order dated 25.06.2009 (Annexure-15) to this petition, passed in the aforesaid criminal proceeding.
(2.) The brief facts of the case are that a criminal complaint has been filed by U.P. Pollution Control Board, Lucknow (hereinafter referred to as the 'State Board') through Sri J.B. Singh, Assistant Environmental Engineer against the petitioners, i.e, M/s Kothari Fermentation and Biochem Ltd. and its Chairman and Managing Director, other Directors, General Manager and Factory Manager under Section 37 of the Air (Prevention and Control of Pollution) Act, 1981 (hereinafter referred to as the 'APCP Act') with the allegations that the area in which the industrial plant of the petitioners is situated falls in air pollution control area. The petitioner No.1, the company applied for grant of consent by its application dated 28th February, 2009 to operate its industrial plant. The State Board by its order dated 24.04.2009 declined to grant consent to operate industrial plant of the company. The order was communicated to company by means of registered letter. The petitioner No.1, who is a company within the meaning of Section 40 of the APCP Act, despite communication of order of refusal of consent was found operating the industrial plant violating the parameters of air quality on inspection made by the officers of the State Board on 04.05.2009. They also collected the sample after giving due notice from stock attached to the boiler and sent for analysis to the laboratory authorized by the Board. The report of analysis made it clear that parameters prescribed by the Board for air pollution were violated. The report dated 05.05.2009 of the analysis was communicated to the petitioners-company. The act complained said to be in breach of Section 21 punishable under Section 37 of the APCP Act. It was further alleged that petitioners Nos. 2 to 9 were Chairman and Managing Director, Directors, General Manager and Factory Managers of petitioner No.1, are under obligation to comply the mandatory provision of the APCP Act so as to meet out the liabilities under the Act in accordance with provision of Section 40 of the APCP Act. They were under legal obligation to operate their industrial plant after obtaining the consent of the State Board but they have been found operating their industrial plant without obtaining consent of the Board. It was further alleged that petitioner Nos.2 to 9 are incharge of day to day business of petitioner No.1 and have wilfully disobeyed the statutory provision of APCP Act and as such they all shall be liable for punishment under the provision of APCP Act. The complaint was filed on behalf of the Board by Sri J.B. Singh, Assistant Environment Engineer who has been duly nominated by Member, Secretary of the Board in pursuance of the resolution passed by the State Board. The copy of Board resolution was also annexed with the complaint. The Court took cognizance against the petitioners vide order dated 13.05.2009 and issued process against them to appear before the court. When the accused persons did not appear the complainant moved an application for issuing non-bailable warrant on 25.06.2009. After considering the request of the complainant bailable warrant were issued against the petitioners by order dated 26.11.2009. Both these orders sought to be quashed along with criminal prosecution launched by way of complaint on various ground by means of this petition.
(3.) The prosecution and orders impugned have been assailed on the following grounds:-. Point No.1. After refusal of the consent, there is a provision of preferring an appeal against the order under Section 31 of the APCP Act and unless the appeal is finally disposed of it cannot be said that order refusing consent was violated. Moreover after rejecting the application for consent, it was incumbent upon the State Board to issue direction not to operate the industrial plant to the petitioners. No such specific direction has been given by the State Board, hence offence under Section 37 of the APCP Act is not made out. Point No.2. The report of analyst is not acceptable on the ground that no standard has been prescribed by the State Board for air pollution. Further sample of analyst has not been analyzed by a public analyst in view of Section 29(2) as the same laboratory has not been approved by the State Government. Further that analyst has not been signed by Analyst and also for the reason that the provisions of taking sample has not been complied with in terms of section 26 of APCP Act. The procedure in this regard has not been strictly complied with. Point No.3 The complaint has not been filed by any authorised person as provided under Section 43 of the APCP Act. Point No.4 All the Directors cannot be impleaded and prosecuted in this case due to non-compliance of Section 40 of APCP Act. Point No.5 All the petitioners are resident of a place beyond the local limits of jurisdiction of the court. Mandatory provisions of section 202 CrPC has not been complied with by the Magistrate. Hence cognizance taken is void.;