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Madhya Pradesh High Court · body

2019 DIGILAW 865 (MP)

A. S. Bansal v. State of Madhya Pradesh

2019-12-12

JAGDISH PRASAD GUPTA

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ORDER : Jagdish Prasad Gupta, J. 1. The petition under Section 482 of Cr.P.C. has been preferred for quashment of proceeding of Cri. Case No. 1266/2017 under Section 15 of the Environment Protection Act, 1986 pending before JMFC, Jabalpur. 2. The facts giving rise to this petition are that on behalf of the respondent, before JMFC, Jabalpur, a complaint was filed on 3.10.2017 against the applicant with regard to operating Ms. Bansal Supertek Clinic and Ms. Bansal Hospital, without following the provision of the Environmental Protection Act with regard to Bio-Medical Waste which is punishable under Section 15 of the Act. As the applicant is operating the aforesaid clinic and hospital without getting any authority under the Act after 7.10.2010, without further authorization or informing to close the institute which is violation of Rule 4 and 10 of the Bio-Medical Waste (Management and Handling) Rules, 1998 and the Bio-Medical Management Rules, 2016. On the basis of the aforesaid complaint, the cognizance has been taken by the Magistrate and the trial is going on. 3. The aforesaid proceeding has been challenged here on the ground that the applicant took permission from the respondent for Bio-Medical Waste (Management and Handling) Rules, 1998 which was valid till 7.10.2010 but before the expiry date, the applicant closed the clinic and hospital, therefore, mere is no need to take, further permission under the aforesaid rules, therefore, the applicant has not violated any rules and committed no violation of the Act. Further submitted that neither in complaint nor in any document, it is disclosed that after 7.10.2010, till filing of the complaint, any officer of the Board inspected the premises to find out that the clinic and hospital were running or not or any bio-medical waste was produced. None of the complaint has been made by any person, with regard to collection, transportation, storage or non-disposal of the bio-medical wastage, in the premises of the alleged clinic or hospital. The condition of permission till 7.10.2010 which is Annexure 3, filed with the complaint is concerned, the conditions are applicable till the validity period of the authorization, after expiry of the period. No term and condition would survive. The condition of permission till 7.10.2010 which is Annexure 3, filed with the complaint is concerned, the conditions are applicable till the validity period of the authorization, after expiry of the period. No term and condition would survive. On expiry of the period, there was no obligation for the applicant to take prior permission of prescribed authority to closed down the facility, hence there is no violation of Rules 4 and 10 as mentioned earlier, under the circumstances, if the allegations be taken as it is, the applicant cannot be held guilty of the offence punishable under Section 15 of the Act. In the circumstances, the continuation of the proceeding would amount to misuse of the process of court. Hence the proceeding be quashed. 4. Learned counsel appearing on behalf of the respondent-complainant submitted that earlier the applicant obtained permission which is Annexure A-3, filed with the complaint, which was valid till 7.10.2010, thereafter, the applicant has not applied for terms and operating the hospital and despite of the notice dated 4.4.2017, Annexure P-4. No application for further authorization has been filed before going further. Therefore, the applicant is liable to be punished. 5. It would be appropriate first to see the provision of Rules 4 and 10 of the Bio-Medical Waste (Management and Handling) Rules, 1998 which are as under:- "4. Duty of occupier.-It shall be the duty of every occupier of an institution generating bio-medical waste which includes a hospital, nursing home, clinic, dispensary, veterinary institution, animal house, pathological laboratory, blood bank by whatever name called to take all steps to ensure that such waste is handled without any adverse effect to human health and the environment. 10. Annual report.-Every occupier/operator shall submit an annual report to the prescribed authority in Form II by 31st January every year, to include information about the categories and quantities of bio-medical wastes handled during the preceding year. The prescribed authority shall send this information in a compiled form to the Central Pollution Control Board by 31st March every year." 6. In the complaint, there is no averment that the applicant has violated the aforesaid provision of the Sections 4 and 10. 7. So far, the rule 4 and 10 of the Bio-Medical Waste Management Rules, 2016 is concerned, it is as under:- "4. In the complaint, there is no averment that the applicant has violated the aforesaid provision of the Sections 4 and 10. 7. So far, the rule 4 and 10 of the Bio-Medical Waste Management Rules, 2016 is concerned, it is as under:- "4. Duties of the Occupier.-It shall be the duty of every occupier to- (a) take all necessary steps to ensure that bio-medical waste is handled without any adverse effect to human health and the environment and in accordance with these rules; (b) make a provision within the premises for a safe, ventilated and secured location for storage of segregated bio-medical waste in colored bags or containers in the manner as specified in Schedule I, to ensure that there shall be no secondary handling, pilferage of recyclables or inadvertent scattering or spillage by animals and the bio-medical waste from such place or premises shall be directly transported in the manner as prescribed in these rules to the common bio-medical waste treatment facility or for the appropriate treatment and disposal, as the case may be, in the manner as prescribed in Schedule I; (c) pre-treat the laboratory waste, microbiological waste, blood samples and blood bags through disinfection or sterilisation on-site in the manner as prescribed by the World Health Organisation (WHO) [guidelines on Safe management of wastes from health care activities and WHO Blue Book, 2014 and then sent to the Common bio-medical waste treatment facility for final disposal]; (d) phase out use of chlorinated plastic bags (excluding blood bags) and gloves by the 27th March, 2019;] (e) dispose of solid waste other than biomedical waste in accordance with the provisions of respective waste management rules made under the relevant laws and amended from time-to-time; (f) not to give treated bio-medical waste with municipal solid waste; (g) provide training to all its health care workers and others, involved in handling of bio-medical waste at the time of induction and thereafter at least once every year and the details of training programmes conducted, number of personnel trained and number of personnel not undergone any training shall be provided in the Annual Report; (h) immunise all its health care workers and others, involved in handling of bio-medical waste for protection against diseases including Hepatitis B and Tetanus that are likely to be transmitted by handling of bio-medical waste, in the manner as prescribed in the National Immunisation Policy or the guidelines of the Ministry of Health and Family Welfare issued from time-to-time; (i) establish a Bar-Code System for bags or containers containing bio-medical waste to be sent out of the premises or [for the further treatment and disposal in accordance with the guidelines issued by the Central Pollution Control Board by 27th March, 2019]; (j) ensure segregation of liquid chemical waste at source and ensure pre-treatment or neutralisation prior to mixing with other effluent generated from health care facilities; (k) ensure treatment and disposal of liquid waste in accordance with the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974); (l) ensure occupational safety of all its health care workers and others involved in handling of bio-medical waste by providing appropriate and adequate personal protective equipments; (m) conduct health check up at the time of induction and at least once in a year for all its health care workers and others involved in handling of bio-medical waste and maintain the records for the same; (n) maintain and update on day to day basis the bio-medical waste management register and display the monthly record on its website according to the bio-medical waste generated in terms of category and colour coding as specified in Schedule I; (o) report major accidents including accidents caused by fire hazards, blasts during handling of bio-medical waste and the remedial action taken and the records relevant thereto, (including nil report) in Form I to the prescribed authority and also along with the annual report; (p) all the health care facilities (any number of beds) shall make available the annual report on its web-site within a period of two years from the date of publication of Bio-Medical Waste Management (Amendment) Rules, 2018;] (q) inform the prescribed authority immediately in case the operator of a facility does not collect the bio-medical waste within the intended time or as per the agreed time; (r) establish a system to review and monitor the activities related to bio-medical waste management, either through an existing committee or by forming a new committee and the Committee shall meet once in every six months and the record of the minutes of the meetings of this committee shall be submitted along with the annual report to the prescribed authority and the healthcare establishments having less than thirty beds shall designate a qualified person to review and monitor the activities relating to bio-medical waste management within that establishment and submit the annual report; (s) maintain all record for operation of incineration, hydro or autoclaving etc. for a period of five years; (t) existing incinerators to achieve the standards for treatment and disposal of bio-medical waste as specified in Schedule II for retention time in secondary chamber and Dioxin and Furans within two years from the date of this notification. 10. Procedure for authorisation.-Every occupier or operator handling bio-medical waste, irrespective of the quantity shall make an application in Form II to the prescribed authority i.e. State Pollution Control Board and Pollution Control Committee, as the case may be, for grant of authorisation and the prescribed authority shall grant the provisional authorisation in Form III and the validity of such authorisation for bedded health care facility and operator of a common facility shall be synchronized with the validity of the consents. (1) The authorisation shall be one time for non-bedded occupiers and the authorisation in such cases shall be deemed to have been granted, if not objected by the prescribed authority within a period of ninety days from the date of receipt of duly completed application along with such necessary documents. (2) In case of refusal of renewal, cancellation or suspension of the authorisation by the prescribed authority, the reasons shall be recorded in writing: Provided that the prescribed authority shall give an opportunity of being heard to the applicant before such refusal of the authorisation. (3) Every application for authorisation shall be disposed of by the prescribed authority within a period of ninety days from the date of receipt of duly completed application along with such necessary documents, failing which it shall be deemed that the authorisation is granted under these rules. (4) In case of any change in the bio-medical waste generation, handling, treatment and disposal for which authorisation was earlier granted, the occupier or operator shall intimate to the prescribed authority about the change or variation in the activity and shall submit a fresh application in Form II for modification of the conditions of authorisation." 8. In the complaint there is no averment that the applicant is managing or handling the bio-medical wastage in violation of the aforesaid rules accept that the applicant has not applied for authorization of managing and handling such wastage. There is no any inspection report showing indulgence of the applicant to carry on the clinic or hospital violating the rules. 9. In the complaint there is no averment that the applicant is managing or handling the bio-medical wastage in violation of the aforesaid rules accept that the applicant has not applied for authorization of managing and handling such wastage. There is no any inspection report showing indulgence of the applicant to carry on the clinic or hospital violating the rules. 9. Undoubtedly, the managing and handling of the bio medical wastage, without getting authority under Section 10 would be violation of the rules and an offence under Section 15 of the Act, but the aforesaid rules 4 and 10 would be applicable to the institute, which was producing bio-medical waste. There is nothing in the complaint or in the document filed with the complaint that the applicant is operating clinic and hospital where bio-medical waste is collected, stored or transported and disposed of for which the rules and provisions of the Act are applicable. 10. The respondent-Board without following the provision of Section 10 and 11, with regard to assessment of the violation, after inspecting the premises and taking sample for getting report of the analyst, cannot allege that any of the institute of the applicant is bound to follow the aforesaid rules or provision of the Act and responsible for the violation of the rules and the Act, in absence of authorisation under Section 10 of the Act. 11. Considering the aforesaid infirmity in the complaint, in view of this court, the proceeding of the aforesaid criminal case filed by the complainant would be mere wastage of the time and it would be futile exercise which amount to misuse the process of the court, therefore, exercising power under Section 482 of Cr.P.C., the Cri. Case No. 2266/2017 pending before JMFC, Jabalpur under Section 15 of the Environment Protection Act is set aside. 12. Accordingly, the petition stands disposed of.