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2008 DIGILAW 252 (PAT)

Mahendra Roy v. State of Bihar

2008-02-05

body2008
ORDER This is an application filed under Section 482 of the Code of Criminal Procedure on behalf of the petitioner-accused Mahendra Roy for quashing the first information report of Khajekalan P.S. Case No. 5 of 2007 registered under Sections 269, 419 and 420 of the Indian Penal Code and Section 79/81 of Trade and Merchantile Act and section 21/22 of the Pollution Control Act. 2. Arshad Aziz, Executive Magistrate, Patna City lodged a first information report on 11th January, 2007 alleging therein that he alongwith Shahsi Bhushan Singh, Sub-Divisional Welfare Officer, Patna City, Maheshwar Dwevedi, Industry Extension Officer, and Dr. J.K. Mandal, Research Assistant, Bihar State Pollution Control Board, Patna in compliance of the order of the Collector, Patna inspected the shop of the petitioner Mahendra Roy situate at Maharajghat, Patna City. It is stated that Dr. K.J. Mandal, Research Assistant, Bihar State Pollution Control Board, Patna examined the available Polythene in the shop of the petitioner and found that it was not in accordance with the prescribed standard. It was found that micron contained was in lesser quantity and also the Polythene was in lesser size. Hence, the case was lodged under the aforesaid sections. 3. Learned counsel for the petitioner refers to the allegation contained in the first information report and submits that the offence under Sections 269, 419 and 420 of the Indian Penal Code is not attracted and hence no offence is made out therein. He further submits that the allegations did not attract offence under Section 79/81 of Trade and Marchantile Act and hence no offence is made out therein. He further submits that the allegation may come under the provisions of Environment (Protection) Act, 1986 but prosecution of the petitioner under the said Act by the informant who is an Executive Magistrate is not maintainable. He submits that the informant who is an Executive Magistrate is not empowered to enter and make inspection under Section 10(1) of the Environment (Protection) Act. In support of his contention he referred to the notification no. S.O. 83(E), dated 16.2.1987 vide annexure-9. He submits that this notification furnishes a list of officials who are empowered to make entry and inspection under the Environment (Protection) Act and in that list the informant's name did not find mentioned. In support of his contention he referred to the notification no. S.O. 83(E), dated 16.2.1987 vide annexure-9. He submits that this notification furnishes a list of officials who are empowered to make entry and inspection under the Environment (Protection) Act and in that list the informant's name did not find mentioned. So, he submits that inspection, search and seizure made by the informant in the shop of the petitioner is without jurisdiction and hence void. He further submits that the informant, who is an Executive Magistrate, is not empowered to file a complaint against the petitioner under the provisions of Environment (Protection) Act. He submits that notification no. S.O. 394 (E) dated 16.4.1987 vide annexure-11 empowers the Collector in the whole of the revenue district for taking cognizance of the offence and he is competent to file a complaint. He submits that the Executive Magistrate is not empowered to file a complaint. He, therefore, submits that the present complaint filed by the Executive Magistrate is without jurisdiction and hence lodging of the first information report is void. 4. Learned State counsel submits that under the Act Collector has been empowered to file a complaint but the informant who is an Executive Magistrate acted on the direction of the Collector and hence the informant who is an Executive Magistrate is competent to enter and make inspection of the shop of the petitioner and to file a complaint against him. He submits that there is no illegality in the case and hence the miscellaneous case is, fit to be dismissed. 5. Admittedly, the Collector has been empowered to file a complaint under the Environment (Protection) Act. The said Act no where says that the Collector can delegate his power to any officer subordinate to him and in absence thereof the entry and make inspection in the shop of the petitioner and lodging of the complaint by the Executive Magistrate is without jurisdiction. In the case of M/s Rathi Plastic Industries and Others Vs. The State of Bihar and Others reported in 2004(3) PLJR 695 this court on similar facts held that the entire complaint is vitiated and is fit to be quashed and the prosecution was quashed. 6. Considering the rival submissions advanced and the legal position I find that this is a fit case for quashing the first information report. 7. The State of Bihar and Others reported in 2004(3) PLJR 695 this court on similar facts held that the entire complaint is vitiated and is fit to be quashed and the prosecution was quashed. 6. Considering the rival submissions advanced and the legal position I find that this is a fit case for quashing the first information report. 7. In the result, the miscellaneous case is allowed and the first information report is quashed.