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2001 DIGILAW 329 (MAD)

M. R. Singhwi v. State

2001-03-14

M.KARPAGAVINAYAGAM

body2001
Judgment :- M. KARPAGAVINAYAGAM, J. M. R. Singhwi, the petitioner herein is the second accused in the complaint filed by the Tamil Nadu Pollution Control Board for the offences under sections 42, 44 read with section 45 of the Water (Prevention and Control of Pollution) Act, 1974, as amended in 1988 (hereinafter referred to as the Act). The petitioner has filed this petition under section 482 of the Criminal Procedure Code seeking to quash the proceedings as against him, mainly on the ground that there is no allegation in the complaint that he was in charge of and responsible for the conduct of the business of the company who committed the offence and the mere designation "managing director" would not indicate that he is responsible for the conduct of the business or that he has got control over the entire affairs of the company. According to the complaint, the unit, the first accused was inspected on November 21, 1996, and during the inspection, the unit was found discharging their effluents into the SIPCOT sewer system without treatment. Despite the advice to provide a full-fledged effluent treatment plant in the second inspection on February 10, 1997, also the unit was found to be discharging the untreated trade effluent. Another inspection was on April 25, 1997. After inspection, a letter was addressed to the unit stating that they are discharging effluents as against the conditions stipulated in the consent order and the unit was advised to make necessary arrangements to recycle the same. The unit sent a letter dated June 27, 1997, stating that due to change in quality of the effluent, they could not recycle the effluent. On receipt of this letter the complainant sent a show-cause notice on December 31, 1997. The unit furnished its reply in its letter dated January 20, 1998. Since the unit has not given the correct particulars and has contravened the conditions of the consent order by concealing certain facts, the complainant/respondent was authorised by the Board by its meeting held on April 28, 1998, to file a private complaint against the unit as well as its occupiers under sections 42, 44 read with section 45A of the Act for contravention of the provisions of sections 20, 23 and 25 of the Act. Accordingly, the complaint dated June 1, 1998, was filed before the learned Judicial Magistrate, Tuticorin, and the same was taken on file in C.C. No. 493 of 1998, for the offences under sections 42, 44 read with section 45A of the Act and process was issued to the unit, the first accused and to the petitioner, the second accusedIt is vehemently contended by Mr. N. T. Vanamamalai, the learned senior counsel appearing for the petitioner that when the complaint has been filed against the company under section 47 of the Act, it shall be alleged in the complaint that the director or managing director of the company was in charge of, and was responsible to the company for the conduct of, the business of the company at the time when the offence was committed and the reading of the complaint would show that the said allegation is absent and as such, the proceedings as against the petitioner, the second accused, are liable to be quashed. He would cite Municipal Corporation of Delhi v. Ram Kishan Rohtagi, U.P. Pollution Control Board v. Mohan Meakins and K. P. G. Nair v. Jindal Menthol India Ltd. On the other hand, the learned Government advocate would state that in the complaint it has been specifically stated that the petitioner was the managing director and as such, the very designation itself would imply both the control and command of the affairs of such a company and equally a statutory liability to the company for responsible conduct of its business. In order to substantiate the said contention, he would cite Mahmud Ali v. State of Bihar, 1986 AIR(Patna) 133 [FB]. On going through the records and on considering the arguments advanced by the respective counsel, I am of the considered opinion that the submission made by the learned senior counsel appearing for the petitioner would not apply to the present case. The private complaint filed by the respondent has been taken on file only in respect of the offences under sections 42, 44 read with section 45A of the Act for contravention of section 25 of the Act. The private complaint filed by the respondent has been taken on file only in respect of the offences under sections 42, 44 read with section 45A of the Act for contravention of section 25 of the Act. The reading of the complaint would show that the complaint was filed against the petitioner not merely because that he was managing director of the unit or company but mainly on the reason that he was an occupier of the unit as defined in section 2(d)The authorisation filed along with the complaint would clearly show that the Board decided to give authorisation to file a complaint as against M/s. Ramesh Flowers Limited as well as its occupier for the offence under sections 42, 44 read with section 45A of the Act. The following paragraphs as contained in the complaint would show that the petitioner was arrayed as A2 since he was the occupier of the unit, who happens to be the managing director. "Subsequent to the accident which occurred on July 5, 1997, the committee headed by Dr. Chockalingam and other committee members were introduced and the purpose of their visit was also informed to the managing director of the said company and other officials of the unit who were present at the time of the committee's visit along with the Tamil Nadu Pollution Control Board officials and as such the unit's reply in respect of the committee's visit that they have not disclosed their identity is false. Thus, the abovesaid actions of the accused-company and its occupier have committed the following offenses which are punishable under sections 42, 44, read with section 45A of the Water (Prevention and Control of Pollution) Act, 1974, as amended in 1988. Thus, the abovesaid actions of the accused-company and its occupier have committed the following offenses which are punishable under sections 42, 44, read with section 45A of the Water (Prevention and Control of Pollution) Act, 1974, as amended in 1988. (i) Concealing the facts; (ii) Furnishing false information; and (iii) Contravening the conditions of consent order issued to it." Therefore, the absence of the words" in charge of, and was responsible to the company for the conduct of the business of the company" as contained in section 47 would not affect the congnizance of the offences taken by the Judicial Magistrate under section 49 of the Act, in view of the fact that the prosecution instituted was only against the unit and the occupier who happens to be the managing directorSection 2(d) defines thus, "'occupier', in relation to any factory or premises, means the person who has control over the affairs of the factory or the premises, and includes, in relation to any substance, the person in possession of the sub-stance." Though it is not specifically mentioned in the complaint that the petitioner as an occupier has control over the affairs of the unit, the documents produced along with the complaint would clearly indicate that the petitioner was having overall control over the affairs of the unit. As indicated above, in the complaint, it is stated that during the inspection the managing director was present and as an occupier he has committed the offence, it is also stated in the complaint that the show-cause notice was issued on December 31, 1997, to the managing director of the unit, the petitioner herein, which is mentioned as item five of the documents furnished in the complaint. On a perusal of the lower court records, it is clear that the said show-cause notice was issued on December 31, 1997, addressing the managing director. In reply to the said show-cause notice, the managing director, the petitioner herein, has sent a detailed reply dated January 20, 1998. This reply containing various details about eight pages sent on behalf of the unit signed by the petitioner as managing director would clearly indicate that he as an occupier, who was having full control over the affairs of the unit had given explanation for each and every charge of the accusation contained in the show-cause notice. This reply containing various details about eight pages sent on behalf of the unit signed by the petitioner as managing director would clearly indicate that he as an occupier, who was having full control over the affairs of the unit had given explanation for each and every charge of the accusation contained in the show-cause notice. Under these circumstances, it cannot be contended that there is no material to show that he was having control over the affairs of the unit. Though the Supreme Court in Municipal Corporation of Delhi v. Ram Kishan Rohtagi, and the Full Bench in Mahmud Ali v. State of Bihar, 1986 AIR(Patna) 133, would state that the very designation as manager or managing director would itself imply both the control and command of the affairs of the company, in this case, as stated above, the complaint has been filed against the petitioner not as a mere managing director of the unit but as an occupier who was having overall control of the affairs of the unit as is evident from the documents filed along with the complaintIn view of what is stated above, I do not find merit in this petition for quashing and accordingly, the same is dismissed. Consequently, Crl. M.P. No. 8144 of 1998, is closed.