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1993 DIGILAW 455 (MAD)

STATE OF TAMIL NADU v. ARUMUGHAM

1993-08-17

N.ARUMUGHAM

body1993
Judgment : N. ARUMUGHAM, J. ( 1 ) ALL the above four criminal appeals have been preferred by the State under Section 378 of the Code of Criminal Procedure challenging the legality and correctness of the orders rendered by the then Additional Judicial First Class Magistrate, Coimbatore in S. T. R. Nos48, 51, 52 and 53,of 1985 dated 30th January 1986, finding the accused/respondents herein, not guilty under Section 21 (2) read with Section 37 of the Air (prevention and Control of Pollution) Act,1981 and accordingly acquitting them under Section 255 (1) of the Code of Criminal Procedure. ( 2 ) SINCE all the above four appeals have been preferred by the State challenging the legality and correctness of the Orders rendered by the learned trial Magistrate in different cases involving different parties, namely different respondents as accused but the complaint, the appellant herein namely, the Member-Secretary, Tamil Nadu Pollution Control Board being the same and the offences alleged against all the respondents herein are one under Section 21 (2) read with 37 of the Air (Prevention and Control of Pollution) Act, 1981 and a common question of law is involved. I have proposed to dispose of the four appeals as consented to by the Bar, by rendering this common ORDER. ( 3 ) BRIEF facts of the prosecution case as culled out from the records of the court below and the impugned ORDERs are stated as follows: The four respondents herein respectively accused in the above four cases are having and running different factories in Pollachi Main Road near Echanari Railway Gate, a sub urban place of Coimbatore town. P. W. 1, the Regional Officer of the appellant herein inspected the respective factories of the respondents herein during the month of June 1984 and found that they were running the said factories and that they had not filed any application to the Tamil Nadu Pollution Control Board for according the sanction and permission to run the factory as contemplated under the Act. According to P. W. 1, G. O. Ms. According to P. W. 1, G. O. Ms. No. 4 Environment Control Department dated 28/9/1983 issued by the Government of Tamil Nadu provides that within a period of six months from the date of publication of the same, those who are running the factory must apply to the Tamil Nadu Pollution Control Board and get the sanction and permission to run the factory and then only they are entitled to run the same. Accordingly, all the respondents herein ought to have applied to the Board on or before 31/3/1984 as their respective factories have been shown in the schedule appended to the Government Order above referred, But however, according to P. W. 1 none of the respondents had sent any application on or before 31/3/1984 to the Board, and that therefore, all the respondents herein had violated Section 21 (2) of the Act which is punishable under Section 37 of the Act. He would further claim that in meeting held by the appellant Board on 19. 10. 1984, by passing a resolution with regard to 120 factories inclusive of the respondents herein also, the Board had permitted P. W. 1 to launch criminal prosecutions against them. The authorisation given to file Criminal Prosecution have been marked as Ex. P. 1, copy of G. O. Ms. No. 4 Environment Control Department dated 28/9/1993 has been marked as Ex. P. 2 Paper publications have been marked as Ex. P. 3; Copy of the Resolution of the Tamil Nadu Pollution Control Board passed in the 10th Board Meeting held on 19. 10. 1984 has been marked as Ex. PA; Complaints have been marked as Ex. P. 5; Gazette publication has been marked as Ex. P. 6; in all the four cases. ( 4 ) WHEN the respondents/accused were examined under Section 313 of the Code of Criminal Procedure with regard to the incriminating circumstances appearing against them in evidence, they have denied their complicity and pleaded not guilty. But they did not choose to examine any witness on their behalf. ( 5 ) ON recording the oral evidence of P. W. 1 to the extent of the facts above referred and the documentary evidence Ex. P. 1 to Ex. But they did not choose to examine any witness on their behalf. ( 5 ) ON recording the oral evidence of P. W. 1 to the extent of the facts above referred and the documentary evidence Ex. P. 1 to Ex. P. 6, the learned trial Magistrate after having considered and assessed everything in the context of the plea taken on behalf of the accused/respondents found them not guilty for the offences for which they were tried and acquitted them. Aggrieved at this, State has preferred the above four appeals. ( 6 ) MR. S. Shanmughavelayutham, learned Additional Public Prosecutor, during the course of his argument pointed out that the non-obtaining of the permission or sanction from the Tamil Nadu Pollution Control Board by the respondents herein it self is a clear violation of Section 21 (2) of Air (Prevention and Control of Pollution) Act, 1981, hereinafter referred to as the Act, and that as such, it is an offence punishable under Section 37 of the Act and that therefore, the respondents are liable to his punished accordingly and that instead acquitting them all by the learned trial Magistrate is clearly erroneous. He would further contend that as per the claim of P. W. 1, the respondents were running the respective factories and they had not obtained permission or sanction from he Board on or before 31. 3. 1984 as per the notification issued by the Government of Tamil Nadu. The failure to obtain the permission to run the factory from the appellant Board per se amounts to violation of Section 21 (2) of the Act, according to the contentions put forward on behalf of the appellant. But it was argued on behalf of the respondents by the learned Counsel Mr. Anbumani in all the appeals, that there was no ground available to interfere with the impugned order passed by the learned trial Magistrate by this Court for the simple reason that the appellant had first failed to establish that the respondents are running the industries, which find a place or are specified in the schedule appended to the notification and secondly that the failure to apply for sanction from the appellant/board as contemplated by the notification under Ex. P. 2, is only a Government Order and that the violation of the same cannot be deemed to be an offence punishable under Section 37 of the Act itself. P. 2, is only a Government Order and that the violation of the same cannot be deemed to be an offence punishable under Section 37 of the Act itself. ( 7 ) IN the context of the above rival contentions, the question that arises for consideration in these appeals is whether the prosecution has established the guilt and complicity of the respondents beyond all reasonable doubts as contemplated by law? ( 8 ) I have carefully gone through the recorded evidence both oral and documentary and the documents filed on behalf of the appellant herein and the various findings given by the learned trial Magistrate in the impugned Orders. It was the specific finding of the learned Magistrate that the proviso to Section 21 (2) of the Act clinches the fact that there was an exception available for those who are not able to obtain permission from the Board on or before 31. 3. 1984. The proviso to Section 2 1 (2) reads like this: Provided that where any person, immediately before the declaration of any area as an air pollution control area, operates in such area any industrial plant for the purpose of any industry specified in the Schedule such person shall make the application-under this sub-section within such period (being not less than three months from the date of such declaration) as may be prescribed and where such person makes such application, he shall be deemed to be operating such industrial plant with the consent of the State Board until the consent applied for has been refused. According to the learned trial Magistrate the word Industrial Plants as defined in Section 21 (2) of the Act does not find a place or is defined or specifically stated in the schedule appended to the notification published by the Government. Therefore, he found that there was a doubt as to whether the factory run by the respondents could come within the purview of Section 21 (2) of the Act and that the industrial plants as referred to, belongs to which category according to the schedule which applies to the factories run by the respondent, is still a mystery, which P. W. 1 namely, the Regional Officer of the Tamil Nadu Pollution Control Board was bound to prove before the Court of law during trial. ( 9 ) WHILE construing Section 37 of the Act, it is seen that it is a penal provision for the violations of the provisions of Section 21 (5) and 22 of the Act and not for the violations coming under Section 21 (2) of the Act. In short, it was the specific finding of the learned Magistrate that the punitive Section 37 cannot be invoked for any other offences except the violations of Sections 21 (5) and 22of the Act. ( 10 ) THE admitted case of P. W. 1 though is that the respondents had not obtained the permission from the appellant/board as was provided in the notification under the Act and it was detected during the inspection of P. W. 1, it is significant to note that no show-cause notice had been sent to the respondents seeking their explanation and that subsequent to the prosecution, covering the period subsequent to 31/3/1984, respondents had obtained permission from the Board as contemplated by law, as represented by the Bar but for the previous period alone, they failed to comply with the same. It is pertinent to note that P. W. 1 has failed to give the date of inspection and produce his inspection notes prepared on that day with the object of proving the violation of the respondents. Looking into the very gamut of Section 21 (2) and its proviso, I am of the view that the interpretation and consequent finding by the learned trial Magistrate that the Government Order, which is only an Executive Order and that therefore, none of the respondents could be mulcted with criminal liability has to be accepted. No other evidence has been let in by the prosecution through P. W. 1 on behalf of the appellant before the trial Court. No other evidence has been let in by the prosecution through P. W. 1 on behalf of the appellant before the trial Court. In short, firstly, the appellant has virtually failed to prove that the respondents were running Industrial Plantst that would come within the purview of the schedule appended to the notification; secondly, Section 37 of the Act, a penal provision in built in the Act is not applicable to the violation of Section 21 (2) of the Act; thirdly, the proviso to the above Section does not provide any criminal liability on the respondents and above all, the evidence of P. W. 1 does not render any help or assistance in establishing the guilt and complicity of the respondents; as has been clearly and category held by the learned trial Magistrate. After having gone through the various findings recorded by the learned Magistrate, I am satisfied to hold that he has appreciated the tendered evidence, both oral and documentary in their correct legal perspective and has arrived at a proper conclusion on par with the law and procedure and has rightly acquitted all the respondents. I do not come across any mis-appreciation of the tendered oral and documentary evidence either, on facts or in the interpretation of the law. In my considered view, these appeals have no merits and lack every material ingredients. ( 11 ) IN the result, all the appeals fail and accordingly, they are dismissed. Appeal dismissed.