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2004 DIGILAW 531 (PAT)

Rathi Plastic Industries v. State Of Bihar

2004-05-11

NAVIN SINHA

body2004
Judgment 1. Heard learned counsel for the petitioners and the learned counsel for the State. 2. Despite repeated adjournments no instructions have been forthcoming to the State Counsel. The Court thus has no alternative left but to decide the present application on the basis of the pleadings as contained in this quashing application. 3. The learned counsel for the petitioners submits that in the present case the godown of the petitioners was raided and certain plastic bags of particular specification were alleged to have been seized which is in violation of Section 15(1) of the Environment (Protection) Act and Rule 8 of the Recycled Plastic Manufacture and Usage Rules, 1999. 4. The allegation was that the thickness of these plastic bags was less than 20 Microns and its storage and uses was thus illegal. 5. It appears that subsequent to the seizure carried out, the goods were kept in the godown of the petitioners. The godown was also sealed by the authority. The petitioners then came to this Court in C.WJ.C. No. 1345 of 2003. By order dated 25.3.2003 this Court disposed of the writ application directing the authority to unseal the godown. They were directed to remove the seized plastic bags granting opportunity to the petitioners to move for their release after the sample of the seized bags were sent to the laboratory for testing and report received. The learned counsel for the petitioners has today filed a supplementary affidavit. Annexure-11 therein is dated 14.10.2003 passed by the Add. Chief Judi. Magistrate, Patna City. In the said order reference of the order dated 25.8.2003 passed by the Sessions Judge has also been made with regard to the test report. The learned Sessions Judge while granting bail to the petitioner no. 3 recorded that in pursuance of test carried out regarding the seized sample, on the direction of this Court as mentioned hereinbefore, the plastic bags were found to be within specification. The counsel then submits that the present complaint has been filed by the Executive Magistrate. The complainant states that approval had been obtained from the District Magistrate for filing of the complaint. The counsel then submits that the present complaint has been filed by the Executive Magistrate. The complainant states that approval had been obtained from the District Magistrate for filing of the complaint. He then refers to annexure-12 to his supplementary affidavit, this is a notification published in the gazette dated 16.4.87 by which the Collector of the Revenue District has been conferred power under section 19 of the Environment (Protection) Act as a person competent to lodge a complaint upon which cognizance can be taken. He submits that the Collector being a person delegated with the power himself could not have sub-delegated the same to the Executive Magistrate. He, accordingly, submits that the present complaint has been filed by the Executive Magistrate who was not competent to do so in law. The entire complaint is therefore vitiated and is fit to be quashed. He relies upon the judgment of this Court reported in 1990 (I) PUR 709. 6. Continuing the submission, the learned counsel for the petitioners further contended that the search and seizure of the petitioners godown was carried out by the Executive Magistrate who was not competent to do so under section 10 of the Environment (Protection) Act. He refers to annexure-13 of the supplementary affidavit filed today, issued under Environment (Protection) Rules in exercise of the power conferred under sub-section (1) of Section 10 of the Environment (Protection) Act. The learned counsel submits that the search and seizure having been carried out by a person not competent to do so under section 10 of the Act, the entire prosecution stands vitiated on this score alone. He relies upon a judgment of this Court reported in 1992 (II) PLJR 669. 7. He lastly contended that in any view of the matter the samples having been tested and having been found to be within specification, no justifiable purpose would be served by permitting the present prosecution to continue which would therefore, be an abuse of the process of the court in the facts and circumstances of the present case. 8. The learned counsel for the State submits that the matter be remitted back to the court below to decide the issue afresh on the basis of the aforesaid submissions. 9. 8. The learned counsel for the State submits that the matter be remitted back to the court below to decide the issue afresh on the basis of the aforesaid submissions. 9. Having considered the rival submissions of the parties this court is of the view that in the facts and circumstances of the present case no useful purpose would be served by remitting the matter to the court below or even permitting the prosecution to continue. The present prosecution apparently appears to be barred by law. It is not in dispute, as is apparent from the petition of complaint itself that the complaint has been filed by a person not competent to do so. The District Magistrate being a person authorised delegated power himself, could not have sub-delegated the authority specifically conferred by law upon him. In view of the law settled by the aforesaid judgment" reported in 1990 (I) PLJR 709 , the initiation of the present prosecution is itself vitiated in law and is fit to be quashed on that ground. 10. The second contention with regard to unlawful search and seizure carried out also finds favour of the Court on the basis of the materials available on record, that the search and seizure was carried out by the Executive Magistrate who was not competent to do so in law. This aspect of the matter has also been decided in the aforesaid judgment of this Court reported in 1992 (II) PLJR 669 wherein it has been held that the search and seizure by an officer not competent under the law is invalid and no prosecution can be launched on the basis of an illegal seizure. No further prosecution can be maintainable in law based on such illegal search and seizure. The prosecution is, therefore, fit to be quashed. 11. In the facts and circumstances of the present case and in view of the test report of the plastic bags which was found to be within specification, no useful purpose would be served by permitting the present prosecution to continue. Continuation of the present prosecution would clearly be an abuse of the process of law. In the facts and circumstances of the present case this application is fit to be allowed. The prosecution of the petitioners in C.B Case No. 35 of 2003 (Tr. No. 123 of 2003) is accordingly quashed.