Judgment :- M/s.Gangappa Paper Mills Ltd., is located at Vadakathu village, Panruti Taluk, South Arcot District. Its Managing Director is one T.G.Krishnamurthy. 2. The said mills manufactures paper with paddy, straw, cotton rags and waste paper as raw materials. The various chemicals used in the process are rosin, soapstone, limealu caustic lye, chlorine etc. It manufactures 900 tonnes of paper with an intermediate product of 810 tonnes of pulp a month. 3. The industry in its letter dated 9. 1982 had applied for consent of the Tamil Nadu Pollution Control Board (for short ‘the Board’) for discharge of sewage/trade effluent under Sec.26 of the Water (Prevention and Control of Pollution) Act, 1974 (for short ‘the Act’). The industry informed that 7,300 kilolitres of trade effluent per day was discharged into a nullah. It was further reported that the trade effluent was treated in primary clarifier, anaerobic lagoon, aerobic lagoon and secondary clarifier. 4. Consent was issued to the industry in the Board’s proceedings dated 1. 1984, subject to the condition that all units of treatment plant already contemplated or required to be contemplated to achieve the quality of effluent according to the tolerance limits prescribed by the Board should be completed within three months from the date of consent order. 5. The Regional Officer of the Board made an inspection of the industry on 22. 1984 and on that date, it was noticed that a part of the treatment system was not working. The industry was therefore advised to expedite the operation of the treatment system early. 6.Against, there was an inspectionon 15. 1984 by the Regional Officer of the Board and on that date, it was found that the industry was not running and some mechanical equipments in the treatment units had been sent for repairs. The industry was advised to rectify the defects in the existing treatment system. 7. The progress on the improvements of the existing treatment system to make the quality of effluent to satisfy the standards prescribed by the Board in the consent order was pursued by the Board and the industry had been representing that they had been trying their best to conform to the requirements of the Board. 8. The industry was inspected on 29. 8. The industry was inspected on 29. 1984 and sample of treated trade effluent was collected, in the presence of officials of the industry and sent for analysis as per the provisions of Sec.21 of the Act and Rule 25 of the Tamil Nadu Water (Prevention and Control of Pollution) Rules, 1983 (for short ‘the Rules’). The report of analysis of treated trade effluent revealed that the trade effluent did not satisfy the standards prescribed by the Board. 9. Inasmuch as the industry did not treat the trade effluent to the standards prescribed by the Board in the consent order, the industry had contravened the provisions of Sec.26, punishable under Sec.44 of the Act. 10. The above facts were placed before the Board at its thirteenth meeting held on 12. 1985 and it was decided by the Board to launch prosecution against M/s.Gangappa Paper Mills Limited under Sec.44 of the Act. 11. In giving effect to the resolution of the Hoard, Thiru G.Rangasamy, Member-Secretary in-charge of the Board represented by Thiru K-Ranganathan, Regional Officer of the Board, lodged a com plaint against Thiru T.G.Krishnamoorthy, Managing Director alone originally for the aforesaid alleged offence, which was originally taken on tile in C.C.No.145 of 1985 on the file of the Judicial First Class Magistrate, Cuddalore. 12. The case subsequently got transferred and numbered as C.C.No.162 of 1985 on the file of the Chief Judicial Magistrate, South Arcot District at Cuddalore. 13. After commencement of the trial, the prosecution filed an application under Sec.319 of the Code of Criminal Procedure, 1973 in Crl.M.P.No.489 of 1986 for impleading M/s.Gangappa Paper Mills Limited as an accused. That petition had been stoutly resisted. However, that petition had been ordered as prayed for. Aggrieved by the said order, the said Mills preferred Crl.R.C.No.395 of 1986 while its Managing Director Thiru T.G.Krishnamoorthy filed Crl.M.P.No.5769 of 1986 on the file of this Court to quash the proceedings initiated against him. This Court by a common order dated 16. 1990 dismissed them. 14. Thereafter, the trial of the case commenced and certain witnesses were examined prior to the framing of the charge. This Court by a common order dated 16. 1990 dismissed them. 14. Thereafter, the trial of the case commenced and certain witnesses were examined prior to the framing of the charge. At this stage, a petition in Crl.M.P.No.794 of 1991 had been filed before the Court below pleading for the discharge of the accused on twinfold grounds, namely, (1) want of proper sanction; and (2) personnel taking sample of the treated trade effluent was not authorised to take such sample and therefore it is that the report of the analysis of the said sample is an inadmissible piece of evidence. These grounds did not carry conviction with the trial Magistrate, who consequently dismissed that petition and framed a charge. 15. Aggrieved by the said order, Crl.R.C.No.673 of 1991 had been filed before this Court. This apart, Crl.O.P.No. 13211 of 1991 had also been filed for quashing the criminal proceedings initiated against him. 16. These grounds did not carry conviction with the trial Magistrate, who consequently dismissed that petition and framed a charge. 15. Aggrieved by the said order, Crl.R.C.No.673 of 1991 had been filed before this Court. This apart, Crl.O.P.No. 13211 of 1991 had also been filed for quashing the criminal proceedings initiated against him. 16. From the submissions of learned counsel for the petitioners in both the petitions, the following points would emerge for consideration: .(1) The absence of proper authorisation to the complainant to launch prosecution against the petitioners is a vitiating factor rendering the prosecution itself not sustainable in law; .(2) Inasmuch as the personnel taking sample of the treated trade effluent was not authorised to take such sample, the report of the Analyst is an inadmissible piece of evidence; .(3) The alleged violation of the consent order can, by no stretch of imagination, be stated to be violation of the provisions of Sec.26, punishable under Sec.44 of the Act and if at all such a violation is punishable under Sec.45-A,which had been introduced by trie Amending Act 53 of 1988 and since the provisions of the Amending Act came into force on October 3,1988, the petitioners cannot at all be mulcted with liability under the said section, inasmuch as the alleged violation of the consent order, happened much earlier to the coming into force of the Amending Act; and .(4) The first petitioner, namely, Thiru T.G.Krishnamurthy, who is stated to be the Managing Director of the Mills, cannot be mulcted with any 1 ability for alleged refraction or violation of any of the provision s of the Act, on the face of the absence of any allegation in the complaint to the effect that he was in charge of and responsible to the Mills for the conduct of its business. Learned Government Advocate would however repel such submission. 17. The first submission revolving on the question of absence of proper authorisation to the complainant to launch the prosecution against the petitioners, serving as a vitiating factor, rendering the unsustainability of the prosecution cannot at all be acceded to or countenanced, on the face of the salutary provisions adumbrated under Sec.49 of the Act and Rule 16 of the Rules. So much of the provisions of the section and the Rule, which are relevant for ourpreser t purpose is couched in the following terms: “Sec.49. So much of the provisions of the section and the Rule, which are relevant for ourpreser t purpose is couched in the following terms: “Sec.49. Cognizance of ‘offences: — (1) No Court shall take cognizance of any offence under this Act except on a complaint made by, or with previous sanction in writing of the State Board, and no Court inferior to that of a Presidency Magistrate or a Magistrate of the first class shall try any offence punishable under this Act. ......... Rule 16: Powers and duties of the member-secretary: Subject to the overall control, of the chairman, the mem ber-secretary shall exercise the following powers, namely: (1) The member-secretary shall be chief executive officer of the 3oard and shall be responsible for the day-to-day and orderly functioning of the offices of the Board and he shall have all powers necessary therefor..... (2)...... (3) All orders and instructions of the Board shall be ever the signature of the member-secretary or any other office duly authorised by him in that behalf.....” 18. A careful reading of the afore-extracted provisions reveals thus: Cognizance of a complaint for refraction or violation of the provisions of the Act is capable of being taken by a Court not in ferior to that of the Presidency Magistrate or a Magistrate of the first class either on a complaint made by the Board or a complaint made with the previous sanction, in writing of the State Board. The phraseology "made by, or with the previous sanction in writing of the State Board’ as found engrafted in the said section, throws flood of light as to the requirement of sanction for the launching of prosecution under the Act. The distinctive word ‘or’ preceded by a comma, suggests that if the complaint is made by the Board, no previous sanction in writing of the Board is necessary and only in case a complaint is lodged by one, other than the Board, the previous sanction in writing of the State Board is necessary. 19. In consonance with such a statutory provision for the laying of the complaint by the Board, specific provision had been made in sub-rules (1) and (3) of Rule 16 of the Rules. The Board being a statutory body, not having the ears, eyes and mouth, as a human-being, has to function through a human being entrusted with the discharge of the functions of the Board. The Board being a statutory body, not having the ears, eyes and mouth, as a human-being, has to function through a human being entrusted with the discharge of the functions of the Board. It is in projection of this view, the engrafted provision in sub-rule (1) of the said Rule 16 provides that the member secretary shall be chief executive officer of the Board and shall be responsible for the day-to-day and orderly functioning of the office of the Board and shall have all powers necessary therefor. 20. Sub-rule (3) thereof further provides that all orders and instructions of the Board shall be over the signature of the member-secretary or any other officer duly authorised by him in that behalf. 21. In the case on hand, admittedly there is a resolution by the Board sanctioning prosecution against the petitioners for the alleged violation of the provisions of the Act committed by them. It is only to give effect to such a resolution, the complainant, namely, Thiru G.Rangasamy, Member-secretary, in-charge of the Board lodged the complaint, which cannot at all be stated to be not in accord with the provisions, as reflected by sub-sec.(1) of Sec.49 of the Act and sub-rules (1) and (3) of Rule 16 of the Rules, No doubt true it is that the member-secretary of the Board is being represented by Thiru K.Ranganathan, Regional Officer of the Board and such representation cannot at all be stated to be not in tune with the afore-extracted provisions. Therefore, this submission bristles next to nothing. 22. The second submission hinging on the question of the result of the analysis of the sample being an inadmissible piece of evidence may now fall for consideration in the arena of discussion. Sec.21 of the Act deals with the power to take samples of effluents and procedure to be followed in connection therewith. Sub-sec.(1) of the said Section prescribes: "A State Board or any officer empowered by it in this behalf shall have power to take for the purpose of analysis samples of water from any stream or well or samples of any sewage or trade effluent which is passing from any plaint or vessel or from or over any place into any such stream or well." "23. Sub-sec.(2) provides: The result of any analysis of a sample of any sewage or trade effluent taken under sub-sec.(1) shall not be admissible in evidence in any legal proceeding unless the provisions of Sub-secs.(3), (4) and (5) are complied with." To put it otherwise, result of any analysis of a sample shall become inadmissible in evidence only when the provisions of sub-secs.(3) to (5) are not complied with and not otherwise. 24. Sub-sec.(3) deals with the procedure of taking sample, such as intimation of intention of taking of sample for analysis to the occupier or any aigent of such occupier, division of the samples into two parts and putting such divided samples into receptacles, sending samples to the laboratory established or recognised by the Central Board either under Sec. 16 or by the State Board under Sec.17, depending upon the area, where the sample is taken and such allied matters. 25. Sub-sec.(4) deals with the procedure to be complied with by the person taking the sample, in the case of wilful absence of the occupier or his agent at the time of taking of the sample. 26. Sub-sec. (5) catalogues the procedure lo be adopted in the case of no request emerging from either the occupier or the agent for the divison of the samples into two parts, as provided in clause (b) of sub-sec.(3). 27. In the case on hand, admissibility of the result of the analysis of the sample parts is not at all admittedly attacked for the non-compliance of any of the provisions adumbrated under sub-secs.(3) to (5) of Sec.21. But the scathing attack proceeds on a different footing. The person taking the sample was not at all authorised to take the sample and therefore, it is, it is said, that the report of the Analyst is an inadmissible piece of evidence. This bone of contention cannot be expected to get the seal of approval of this Court, in the facts and circumstances of the case. The person, who took the sample admittedly in this case is a Regional Officer of the Board, Originally the Board by its order D.P.(MS) No.4, dated 21. 1983, passed an order empowering the following officers to take samples- 1. Chairman, 2. Member-Secretary, 3. Board Engineer, 4. Environmental Engineer, 5. Assistant Environmental Engineer, 6. Junior Environmental Engineer, 7. Board Analyst. Subsequently, the Board by its order in D.P.Ms.No.56, dated 210. 1983, passed an order empowering the following officers to take samples- 1. Chairman, 2. Member-Secretary, 3. Board Engineer, 4. Environmental Engineer, 5. Assistant Environmental Engineer, 6. Junior Environmental Engineer, 7. Board Analyst. Subsequently, the Board by its order in D.P.Ms.No.56, dated 210. 1984, changed the nomenclature of the posts of the Assistant Environmental Engineer and Junior Environmental Engineer as ‘Regional Officer’ and Deputy Regional Officer’. By virtue of such change in nomenclature and redesignation, it cannot be stated that the Regional Officer, (Previously known as Assistant Environmental Engineer) who had taken the samples in the instant case, is not empowered to take samples. This submission as’such is of little substance and has no merit. 28. Let the next.bone of contention that the alleged violation of the consent order cannot at all be stated to be a violation of the provisions of Sec.26, punishable under Sec.44 of the Act, be delved deep for consideration. The Act is a recent Pollution Control Legislation. The objective of such a Legislation is to secure a more environmentally congenial and pollution-free surrounding and this fact requiring the personnel in charge of implementation of various provisions of such a Legislation to function with a great degree of pragmatism and understanding of the ground situation, and to display a deft touch. The industries of different hues and colour and perception, came into existence long before the Act. Therefore, the Act enacted certain provisions with a view to prevent and control pollution of existing industries as well as the industries emerging in the future. 29. Sec.25 is applicable to industries, which are to come into existence, so to say, new industries and it prescribes restrictions on new outlets and new discharges to be made by such industries. Sub-sec(1) provides, “subject to the provisions of this section no person shall, without the previous consent of the State Board, bring into use any new or altered outlet for the discharge of sewage or trade effluent into a stream or well or bain to make any new discharge of sewage or trade effluent into a stream or well. 30. Sub-sec.(2) provides, ‘An application for consent of the State Board under sub-sec. 30. Sub-sec.(2) provides, ‘An application for consent of the State Board under sub-sec. (1) shall be made in the prescribed form and shall contain particulars-regarding the proposed construction, installation or operation of he industrial or commercial establishment or of any treatment and disposal system or of any extension of addition thereto and such other particulars as may be prescribed.” 31. Sub-sec.(3) provides “The State Board may make such inquiry as it may deem fit in respect of the application for consent referred in sub-sec.(1) and in making any such inquiry shall follow such procedure as may be prescribed.” 32. Sub-sec.(4) prescribes: “The State Board may grant its consent referred to in sub-sec.(1), subject to such conditions as it may impose, being (a) in the case of a new or altered outlet, conditions as to the point of discharge into the stream or well or the construction of the outlet, or as to the use of that outlet or any other outlet for sewage or trade effluent from the same land or premises; and (b) in the case of new discharge, conditions as to the nature and composition, temperature, volume or rate of discharge of the effluent from the land or premises from which the new discharge is to be made, and any such conditions imposed shall be binding on any person using the outlet, or discharging the effluent from the land or premises aforesaid.” .33. Sec.26 is applicable to existing industries and it makes provision regarding existing discharge of sewage or trade effluent. It prescribes: .“Where immediately before the commencement of this Act any person was discharging any sewage or trade effluent into a stream or well, the provisions of Sec.25 shall, so far as may be, apply in relation to such person, as they apply in relation to the person referred to in that section subject to the modification that the application for consent to be made under sub-sec. (2) of that section shall be made within a period of three months of the constitution of the State Board.” .34. Violation of the provisions of either Sec.25 or Sec.26 is made punishable under Sec.44 and it provides thus: .“44. (2) of that section shall be made within a period of three months of the constitution of the State Board.” .34. Violation of the provisions of either Sec.25 or Sec.26 is made punishable under Sec.44 and it provides thus: .“44. Penalty for Contravention of Sec 25 or Sec.26: Whoever contravenes the provisions of Sec.25 or Sec.26 shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to six years and with fine.” .35. Sec.45-A had been introduced into this Act by the Amending Act 53 of 1988, which came into force on 3rd October, 1988 and it makes provision for penalty for contravention of certain provisions of this Act. It reads thus: .“45-A: Penalty for contravention of certain Provisions of the Act: Whoever contravenes any of the provisions of this Act or fails to comply with any order or direction given under this Act, for which no penalty has been elsewhere provided in this Act, shall be punishable with imprisonment which may extend to three months or with fine which may extend to ten thousand rupees or with both, and in the case of a continuing contravention or failure, with on additional fine which may extend to five thousand rupees for every clay during which such contravention or failure continues after conviction for the first such contravention or failure.” 36. From a cursory perusal of the provisions adumbrated under Sec.45-A, as extracted above, it is rather crystal clear that contravention of the provisions of this Act or failure to comply with any order or direction given under this Act, for which no penalty has been elsewhere provided in this Act, alone is punishable. To put it otherwise, contravention of the provisions of this Act or failure to comply wit h any order or direction given under this Act, for which penalty had been provided elsewhere under this Act, is not punishable under this provision. 37. To put it otherwise, contravention of the provisions of this Act or failure to comply wit h any order or direction given under this Act, for which penalty had been provided elsewhere under this Act, is not punishable under this provision. 37. Under Sec.325 of the Act conditions precedent are impossible by the Board in respect of the industries, which are to come into existence while under Sec.26, which relates to industries, which had already come into existence, condition subsequent to be complied with within the time-frame are impossible by the Board and any violation of the condition so imposed by such consent order must, in the eye of law, be construed as violation of the provisions adumbrated under Secs.25 and 26 punishable under Sec.44 of the Act. .38. In the instant case, the allegations in the complaint reveal that the consent was issued by the Board in its proceedings No.T1/TNPC-Bd/ 30399/82-3, dated 1. 1984, subject to the condition that all units of treatment plant already contemplated or required to be contemplated to achieve the quality of effluent according to the tolerance limits prescribed by the Board should be complied with within three months thereafter. So many inspections of the industry took place within the stipulated period of three months and even subsequently and the industry was advised to take proper measures to achieve the quality of effluent according to tolerance limits prescribed by the Board. After giving such adequacy of opportunity, the industry was inspected on 29. 1984 by the Regional Officer (then known as Assistant Environment Engineer) and a sample of treated trade effluent was collected in the presence of the officials of the industry and sent for analysis and the result of the analysis revealed that the trade effluent did not at all satisfy the standards prescribed by the Board. In such state of affairs, it can not be stated that there are no prima facie materials to come to the conclusion that there was violation of the condition of the consent order given by the Board in its proceedings dated 1. 1984, which in turn is a violation or refraction of the provisions of Sec.26, thereby punishable under Sec.44 of the Act. 1984, which in turn is a violation or refraction of the provisions of Sec.26, thereby punishable under Sec.44 of the Act. For the sake of emphasis, it may again be reiterated that the salutary provisions adumbrated under Sec.45-A of the Amending Act 53 of 1988 are attractable only in situations, where there are’ violations of the provisions of the Act or failure to comply with any of the directions issued by the Board, for which no specific provision is available for punishment. In this view of the matter, there is little merit in this submission also. .39. The fourth and the last bone of contention is relatable to Thiru T.G.Krishnamoorthy, the Managing Director alone and according to learned counsel for the petitioners, in the absence of any allegation in the complaint as to his having been in charge of and responsible to the mills for the conduct of its business, the criminal proceedings as initiated against him are liable to be quashed. Even such a submission cannot carry conviction either on facts or on law, in the facts and circumstances of the case. Except stating that he is the Managing Director, of course true it is, no specific allegations are available in the complaint as to his having been in charge of and responsible to the mills for the conduct of its business. The phraseology ‘Managing Director’ by itself would connote and convey the idea of his having been in charge of and responsible to the conduct of its business. If he is to be construed as a person in charge of and responsible to the conduct of the affairs of the mills, then by virtue of the provisions adumbrated under sub-sec.(1) of Sec.47 of the Act, it is possible to presume that he is guilty of the offence and shall be liable to be proceeded against and punished accordingly. Such a presumption is however rebuttable and this aspect matter is made crystal clear by the proviso appended to the said subsection, 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. .40. Such a presumption is however rebuttable and this aspect matter is made crystal clear by the proviso appended to the said subsection, 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. .40. Even assuming that he is not in charge of and responsible to the conduct of the affairs of the mills, it cannot be stated that he is not prosecutable for the offences committed by the company, on the face of the sanguine provisions adumbrated under sub-sec.(2) which prescribes, .“Notwithstanding anything contained in sub-sec.(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.” 41. The said sub-section starts with the non obstante clause by the incorporation of the following phraseology, namely, ‘notwithstanding anything contained in sub-sec.(1)’. This non obstante clause has to be given its due meaning in the context in which it is used. This non obstante clause makes it plausible to give interpretation in a pragmatic way to the provisions adumbrated in sub-secs.(1) arid (2) of the said section. Under sub-sec. (1), the personnel in charge of and responsible to the company for the conduct of the affairs of the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly and such person charged of an offence can rebut such a presumption by proving that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. .42. Under sub-sec.(2), it is legitimately permissible to prosecute even persons, who were not stated to be in charge of and responsible to the company for the conduct of its business, if it is proved that the offence has been committed with the consent or connivance of or attributable to the neglect on the part of any of those persons prosecuted. Under sub-sec.(2), it is legitimately permissible to prosecute even persons, who were not stated to be in charge of and responsible to the company for the conduct of its business, if it is proved that the offence has been committed with the consent or connivance of or attributable to the neglect on the part of any of those persons prosecuted. To put it otherwise, in case of prosecutions of persons under sub-sec.(2) presumption of their guilt cannot at all be inferred by virtue of their positions in the company as in the case of presumption to be drawn in the case of personnel, who had been in charge of and responsible to the affairs of the company or the conduct of its business. The question of proof for the involvement of persons in the offences committed by the company would be expected to come only during the course of trial and even in the case of persons, prosecuted under sub sec.(2), a deeming provision had been incorporated, therein in a limited way, in the sense of such of these persons deeming to be guilty of the offence committed by the company. 43. The crux of the appieciable difference between the provisions adumbraited under sub-secs. (1) and (2) bristles to these: Under sub-sec.(1) the burden is on the person charge 1 of the offence to rebut the presumption invoked against him while under sub-sec.(2), the burden of proof never shifts and it is always on the prosecution to prove, by placing proper evidence before Court, that the person charged had been guilty of the offence. This sort of interpretation alone, I feel, will tend to give sense to the statutory provisons to achieve the purpose for which the same had been enacted. As such, there is no merit in this bone of contention also. 44. In view of what has been stated above, it goes without saying that both the revision and Crl.O.P.No.13211 of 1991 deserve to be dismissed and are accordingly dismissed.