- (1.) Heard Sri Vivek Pratap Singh holding brief of Sri Bharat Ji Agarwal, learned counsel for the applicant, learned Additional Government Advocate for the State and perused the material on record. Applicant, O.P. Bhatia, General Manager, M/s Captainganj Distillery, Deoria through this application under section 482 Cr.P.C. has invoked the inherent jurisdiction of the Court with a prayer to quash the complaint dated 23.7.1985 under section 44 of the Act of 1978 filed by Sri C.B. Singh, Law Officer of the Water Pollution Control Board before the Chief Judicial Magistrate, Deoria, Uttar Pradesh.
(2.) It is further prayed that proceedings in the case No. 2019 of 1985, (U.P. Pollution Control Board vs. M/s. Captainganj Distillery and others) pending in the court of Chief Judicial Magistrate, Deoria be stayed. It is contended that the distillery has been discharging its trade effluents through a Pucca Nala which is about 1.5 kilometers in length. Thereafter there are a number of lagoons, say a dozen, which are spread over the land roughly measuring 50 acres and after the lagoons are over the Nala carrying the trade effluents again flows for a distance of about 2 kilometers before it discharges itself into Mauna Nala and thereafter it again flows for a distance of about 15-20 kilometers before it ultimately discharges into the river little Gandak. The factory has also installed two tube-wells for dilution of the effluents after treatment. This effluent of the factory is highly fertilizing and, therefore, is in a great demand by the farmers of the locality. The Chief Inspector of the factory ever find any fault with the trade effluents of the factory. It is further submitted that Board was constituted under the Water (Prevention and Control of Pollution) Act, 1974 and certain powers upon the Member/Secretary was delegated but it has not delegated any power under section 25 and 26 to the Member/Secretary. Therefore, Member/Secretary has no power to accept or reject the consent seeking permission for discharging of effluents under section 25/26 of the Act. Applicant's letter for consent was rejected by the Member/Secretary without any authority. When an offence has been committed by a Company then every person who is in-charge of and responsible to the Company for the conduct of the business of the Company is vicariously liable. A person who is neither in-charge of nor responsible for the conduct of the business of the Company cannot be held liable. It is also submitted that making a swepping statement that every Director, Chairman and Manager is responsible for the conduct of the business of the company without stating as to how he is connected with the business of the company cannot make him liable. The court cannot take cognizance upon a complaint of an Assistant Law Officer. Complaint itself does not make out any offence and cannot proceed further. Contrary to this, opposite party no. 2 stated that Member/Secretary is the Chief Executive of the Pollution Board and is fully competent to receive any application on behalf of the Board and to seek further information as required under the provisions of the Act No. 6 of 1974 on behalf of the Board for granting consent. It is baseless to say that Amending Act No. 44 of 1978 is unconstitutional. It is again submitted that the Chairman is working in the Board. Any act done by the Board since the enforcement of the Act No. 6 of 1974 and Amending Act No. 44 of 1978 cannot be questioned in any court of law. It is further submitted that distillery may have been established long back and since then polluted and injurious effluents have been discharged, is no defence to the accused person for not following the mandatory provision of Act No. 6 of 1974.
(3.) In this case M/s Captainganj Distillery, Deoria, a Company, has been discharging its highly noxious and polluted trade effluents into river chhoti Gandak through a local drain. This industrial unit had applied to the Pollution Control Board for consent of the Board to discharge its trade effluents into the river. The Board finds that application is incomplete in many respect and called upon the unit to rectify the discrepancies. As there was no response from the distillery unit, the Board refused to grant the consent prayed for in the public interest. After giving notice, complaint was filed before the Chief Judicial Magistrate, Deoria who summoned the accused on being satisfied that there is sufficient ground to proceed against the applicant for discharging polluted trade effluents into the river. Applicant in spite of making sincere efforts to install a effluent treatment plant as required under the Act, has challenged the Act by saying that the Act No. 6 of 1974 is unconstitutional whereas highly injurious pollution is being discharged without obtaining consent of the Board. Accused-applicant is in-charge of and responsible for the conduct of the business of the Company. The said Company is discharging its polluted trade effluents into the river chhoti Gandak which is a stream as defined in sub-section (J) of Section 2 of the Act and thereby causing continuous pollution of the said stream. Section 47 of the Act reads as follows: "47. Offences by companies-(1) Where an offence under this Act has been committed by a company every person who at the time the offence was committed was in charge of, and was responsible to the company for the conduct, of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in subsection (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of or, is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, 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." On a plain reading of sub-s. (1) of s. 47 of the Act, where an offence has been committed by a company, every person who at the time of the commission of the offence was in charge of and responsible to' the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.";