Research › Search › Judgment

Rajasthan High Court · body

2012 DIGILAW 241 (RAJ)

Subhash Sachdeva v. State of Rajasthan

2012-02-01

SANDEEP MEHTA

body2012
JUDGMENT 1. - The instant misc. petition has been preferred by the petitioner challenging the proceedings of the complaint filed by the respondent No. 2 on 22.6.2011 against the petitioner in the Court of Chief Judicial Magistrate, Shri Ganganagar under the provisions of the Environment (Protection) Act, 1986. 2. A complaint which was filed against the petitioner in this matter and which is the subject matter of challenge in the instant misc. petition, has been filed by the SDM, Sri Ganganagar with the allegations that the State Government by Notification dated 21.7.2010 has declared the State of Rajasthan to be a plastic carry bag free area and from 1.8.2010 onwards, the use of plastic carry bags manufacture, storage, import, sell or transportation thereof has been banned in the State. The further allegation in the complaint was that acting on the directions of the Collector, Sri Ganganagar, the SDM conducted the search of the premises of the petitioner's firm namely Sachdeva Industries and on the search so being conducted, the machine for the manufacture of the plastic bags was found to be in a running condition and the plastic carry bags were being manufactured therein. The quantity of the plastic bags were also being found stored in the unit and no record about the manufacturing or storage of the plastic bags was found to exist. A complaint to this effect was filed by the SDM, Sri Ganganagar in the Court of Chief Judicial Magistrate, Sri Ganganagar with the allegations that the petitioner violated the provisions of Section 15 of the Environment (Protection) Act and as such, he should be punished therefore. 3. Assailing the complaint and all the subsequent proceedings sought to be undertaken against the petitioner, learned counsel for the petitioner submits that as per the Notification dated 21.7.2010, the State Government has authorised and empowered the District Collector and the Regional Officers of the Rajasthan State Pollution Control Board to implement the directions and to file complaints for violation of the Section 19 of the Act. The relevant portion reads as under: "No person including a shopkeeper, vendor wholesaler or retailer, trader, hawker or rehriwala etc., shall use plastic carry bags for supply of goods and further directs that, no person shall manufacture, store, import, sell or transport plastic carry bags in State of Rajasthan w.e.f 1.8.2010. The relevant portion reads as under: "No person including a shopkeeper, vendor wholesaler or retailer, trader, hawker or rehriwala etc., shall use plastic carry bags for supply of goods and further directs that, no person shall manufacture, store, import, sell or transport plastic carry bags in State of Rajasthan w.e.f 1.8.2010. The State Government hereby further directs that the following officers shall implement these directions and file complaints under Section 19 of the Environment (Protection) Act, 1986 using the power delegated to them by Government of India, Ministry of Environment & Forests (MoEF), vide Notification No. S.O. 394(E) dated 16.4.1987." (i) District Collector (ii) Regional Officers of the Rajasthan State Pollution Control Board. 4. Learned counsel submits that thereafter on 10.12.2010, another notification was issued by the Government of Rajasthan as per which, the authorisation to take action for the violations under the Act have also been given to the SDMs concerned. The learned counsel submits that search in the petitioner's premises was conducted by the SDM on 13.9.2010 and on the basis of the said search proceedings, the complaint has been filed in the Court below which is absolutely vitiated because on the date when the search/inspection was conducted, the SDM was not empowered or 'authorized to conduct the search. Learned counsel submits that the power under Section 19 could only have been exercised by the District Collector or the Regional officer of Pollution Control Board and thereby, the prosecution based on. this illegal search, cannot be permitted to continue. Learned counsel further submits that the sub-delegation of the powers to the SDM was not even permissible on the date of search. 5. Learned Public Prosecutor opposes the prayer made and submits that the restriction imposed by the notification and the authorisation given under the notification dated 21.7.2010 is in relation to the filing of complaint but no restriction has been imposed on the search being conducted by the SDM. Thus he submits that the complaint impugned does not deserve to be quashed by this Court in exercise of the inherent powers. 6. The arguments which the learned counsel for the petitioner has raised in support of his prayer are based on the provisions of Section 19 and 10 of the Environment (Protection) Act which read as under: "10. Powers of entry and inspection. 6. The arguments which the learned counsel for the petitioner has raised in support of his prayer are based on the provisions of Section 19 and 10 of the Environment (Protection) Act which read as under: "10. Powers of entry and inspection. - (1) Subject to the provisions of this section, any person empowered by the Central Government in this behalf shall have a right to enter, at all reasonable times with such assistance as he considers necessary, any place (a) for the purpose of performing any of the functions of the Central Government entrusted to him, (b) for the purpose of determining whether and if so in what manner, any such functions are to be performed or whether any provisions of this act or the rules made there under or any notice, order, directions or authorisation served, made given or granted under this Act is being or has been complied with, (c) for the purpose of examining and testing any equipment, industrial plant, record register, document or any other material object or for conducting a search of any building in which he has reason to believe that an offence under this Act or the rules made there under has been or is being or is about to be committed and for seizing any such equipment, industrial plant, record register, document or other material object if he has reason to believe that it may furnish evidence of the commission of an offence punishable under this Act or the rules made thereunder or that such seizure is necessary to prevent or mitigate environmental pollution. (2) Every person carrying on any industry, operation or process of handling any hazardous substance shall be bound to render all assistance to the person empowered by the Central Government under sub-section (1) for carrying out the functions under sub-section and if he fails to do so without any reasonable cause or excuse, he shall be guilty of an offence under this Act. (3) If any person willfully delays or obstructs any persons empowered by the Central Government under sub-section (1) in the performance of his functions, he shall be guilty of an offence under this Act. (3) If any person willfully delays or obstructs any persons empowered by the Central Government under sub-section (1) in the performance of his functions, he shall be guilty of an offence under this Act. (4) The provisions of the Code of Criminal Procedure, 1973, or, in relation to the State of Jammu and Kashmir, or in an area in which that Code is not in force, the provisions of any corresponding law in force in the State or area shall, so far as may be apply to any search or seizure under this section as they apply to any search or seizure made under the authority of a warrant issued under Section 94 of the said Code or as the case may be, under the corresponding provision of the said law. 19. Cognizance of Offence. - No Court shall take cognizance of any offence under this Act except on a complaint made by (a) the Central Government or any authority or officer authorised in this behalf by that Government, or (b) any person who has given notice of not less than sixty days, in the manner prescribed of the alleged offence and of his intention to make a complaint, to the Central Government or the authority or officer authorised as aforesaid. 7. Thus, the powers of entry and inspection under Section 10 have been given to a person empowered by the Central Government in this behalf. No such authorisation was available to the SDM to conduct the search on 13.9.2010 and the powers under Section 19 of the Act have only been given to the SDM by the notification dated 10.12.2010. Resultantly, when the search in the instant case was undertaken, the SDM concerned was not authorised to enter and inspect the premises of the petitioner. 8. The Hon'ble Apex Court while considering the effect of illegal search and seizure in the case of Roy V.D. v. State of Kerala, reported in (2000) 8 SCC 590 has gone to the extent of quashing the proceedings under N.D.P.S. Act. The Apex Court has held that the power under Section 482 of the Cr.P.C. has to be exercised by the High Court, inter alia, to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. The Apex Court has held that the power under Section 482 of the Cr.P.C. has to be exercised by the High Court, inter alia, to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. Where criminal proceedings are initiated based on illicit material collected on search and arrest which are per se illegal and vitiate not only a conviction and sentence based on such material but also the trial itself, the proceedings cannot be allowed to go on as it cannot but amount to abuse of the process of the Court. Thus this Court is of the opinion that the complaint filed' against the petitioner in this case is based on an illegal search taken by the SDM cannot be permitted to be continued as the SDM by virtue of the provision a Section 10(1) of the Environment (Protection) Act was not authorised to enter into and search the premises. 9. In view of the above discussion, the misc. petition succeeds and the complaint filed against the petitioner in the Court of Chief Judicial Magistrate, Sri Ganganagar for the offence under Section 19 of the Environment (Protection) Act, 1986 is hereby quashed.Stay petition also stands disposed of.Petition allowed. *******