REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 9 OF 2002

Gujarat Pollution Control Board ….Appellant

Versus

M/s Nicosulf Industries & Export Pvt. Ltd. and Ors. ….Respondents

J U D G M E N T

Dr. ARIJIT PASAYAT, J

1. Challenge in this appeal is to the judgment of a learned Single Judge

of  the  Gujarat  High  Court  allowing  the  Revision  Petition  filed  by  the

respondents 1 and 2.

2. A  complaint  under  Sections  24,  25,  43,  44  and  47  of  the  Water

(Prevention and Control  of  Pollution)  Act,  1974 (in short  the  ‘Act’) was

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filed  by  the  Assistant  Environmental  Engineer  on  behalf  of  the  Gujarat

Pollution  Control  Board  (in  short  the  ‘Board’)  against  a  private  limited

company i.e. M/s Nicosulf Industries & Exports Private Limited-respondent

no.1  and its  co-directors  Kishanbhai  M. Narsinh,  Mihirbhai  G. Virji  and

Dushyant P. Lejawala  alleging inter-alia  that the accused nos. 2, 3 and 4

are producing Nicotine Sulphate in their factory and using Tobacco Stuff,

Lime, Kerosene and Sulphuric Acid as raw-materials, and during the course

of the process of production they are discharging 10,800 litres of polluted

water  every day. Under sections  24 and 25 of the  Act,  every industry is

compulsorily required to obtain prior permission or approval of the Board

for discharging its  polluted water  used  by it  either  within  or  outside the

industry as per section 25(i) of the Act. Permission was granted by imposing

certain conditions to the accused persons. If the industry commits breach of

conditions,  complaint  can  be  filed,  which  in  the  instant  case  was  filed

alleging that there was breach of condition no.4, as a result of which, under

condition no.7, the  consent  order  automatically  lapsed.  The  accused

nos.2,  3 and 4 were said to be responsible  officers  managing day-to-day

affairs  of  the  company.  On  22-6-1989,  a  sample  of  polluted  water  was

collected from the industry. It was analysed by the Laboratory of the Board,

which reported that the effluent did not conform to the prescribed standards.

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The report of the analyst was given on 8-7-1989. Thereafter, show-cause

notice  was  issued  to  the  accused  persons.  A complaint  was  accordingly

filed.

3. The  learned  Magistrate  convicted  all  the  four  accused  under

sections 24, 25, 43 and 44 of the Act.

4. The judgment of the Lower Appellate Court was challenged on four

grounds before the High Court.

5. The first ground of attack was that the complainant had no authority

to file the complaint. Hence, the entire prosecution structure collapsed and

order  of  conviction  and  sentence  against  the  revisionists  cannot  be

maintained. The second ground of attack was that the offence was alleged to

have been committed by the Company and the directors of the company can

be  held  liable  only  when  it  is  established  by  the  prosecution  that  the

directors were managing day to day affairs of the company. The third attack

was  that  even  on  merits  breach  of  condition  No.4  of  the  consent  or

permission order is not established. The last attack was that the sample of

alleged polluted water was collected in breach of the provisions of Section

21 of the Act.  

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6. Main ground of challenge is that the complainant had no authority to

file the complaint and this ground alone was sufficient to set aside the order

of conviction and sentence maintained by the first Appellate Court.  

7. Reference was made to the complaint which shows that it was filed

by one  AA Dalauti,  Assistant  Environmental  Engineer  on  behalf  of  the

appellant-Board.  It  was  pointed  out  that  Shri  Dalauti  had  no  delegated

authority as required under Section 49 of the Act and as such the complaint

was filed by an incompetent person. Reference was made to Section 49 of

the Act in this regard. Specifically with reference to Section 49(i)(a) of the

Act, the High Court held  that the complaint had not been filed by the Board

as defined under Section 2(h) of the Act. Though the High Court felt that on

this ground alone the petition was bound to succeed, yet it considered the

other aspects and set aside the order of conviction and sentence as imposed.  

8. In support of the appeal, learned counsel for the appellant submitted

that prior to amendment the expression used was “previous sanction of the

Board” but after the amendment it was “authorized in this behalf by it”. It is

pointed out that in exercise of powers under Section 11-A of the Act, the

Board delegated to the Chairman the power of sanctioning prosecution vide

Resolution  dated  27.3.1984.  In  exercise  of  this  power  the  Chairman

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sanctioned as well  as authorized complainant  to file the complaint  in the

present case by his order dated 18.8.1989.  

9. It is submitted that while considering the validity and/or effectiveness

of  the  order,  the  High  Court  proceeded  on  erroneous  presumption  that

Section 49 was applicable at the time when the present complaint was filed.

According to the appellant, though the complaint was filed on 17.10.1989,

prior to that Section 49 was amended by Act 53 of 1988 w.e.f. 29.9.1988.

So far as the State of Gujarat is concerned, the amendment became effective

only when the Gujarat Legislative Assembly passed a resolution adopting

the  amendment  on  29.9.1999  which  was  notified  on  28.10.1999.  It  is

submitted  that  the  Act  is  an  enactment  pursuant  to  Article  252  of  the

Constitution  of  India,  1950  (in  short  the  ‘Constitution’).   The  Act  is

relatable to inter-alia Entry 17 of  List II,  namely,  the water that is to say

“water supplies, irrigation and canals, drainage  and embankments….”.  In

any case,   the Parliament as well as all State Legislatures have all along

acted  on  the  basis  that  Act  has  been  enacted  pursuant  to  powers  under

Article  252  of  the  Constitution.  Further  in  Preamble  to  the  Act  there  is

categorical  assertion  by the  Parliament  to  the  effect  that   “And whereas

Parliament has no power to make laws for the States with respect to any of

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the  maters  aforesaid  except  as  provided  in  Articles  249  and  250  of  the

Constitution”. It is, therefore, submitted that it was never challenged by the

respondents 1 and 2.  They cannot be permitted to urge that the Act was not

passed  pursuant  to  Article  250  of  the  Constitution.  The  passing  of  the

resolution  by the  State  Legislature  of  two  or  more  States  is  a  condition

precedent for investing the Parliament with the power to make a law on that

topic or matter and then it shall be lawful for the Parliament to make a law

for regulating that matter accordingly.  The law so made or enacted by the

Parliament under Article 252(1) of the Constitution will apply only to those

States whose legislatures have passed resolutions under that provision and

also to such States  which have afterwards adopted the same by resolution

passed by the legislatures of such States in that  behalf.  Therefore, at  the

relevant  point  of  time  the  unamended  Section  49  was  applicable  and

delegation  to  the  chairman  of  the  power  to  sanction  prosecution  by  the

Board was valid and effective. Even otherwise resolution dated 27.3.1984

clearly establishes that the Board delegated to the Chairman the power of

sanctioning prosecution.  Therefore, this was valid and effective even for

the purpose of amended Section 49(1)(a) of the Act. Section 49 is in two

parts  namely (i)  a  complaint  made by the  Board  and  (ii)  by any officer

authorized in this behalf by it.  The delegation of the power of sanctioning

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prosecution in favour of the Chairman can always be read as the power of

authorizing prosecution after Section 49 was amended.   

10. The Inspection Report clearly establishes the name of accused No.3

as the person in charge of the unit. In the statement recorded under Section

313 of the Code of Criminal Procedure, 1973 (in short the ‘Code’) A-3 has

clearly admitted that the same is true. Reference is also made to Section 21

which deals with power to take samples of effluents and procedure to be

followed in connection therewith.  

11. In response, learned counsel for the respondents  1 and 2 submitted

that  the  High  Court  had  clearly  recorded  that  the  conditions  required

compliance with the  water  standards if  water  over-flowed from the solar

evaporation pans and the sample taken was from the drain that ran from the

factory to  the evaporation  pans.   On the aforesaid  basis,  the High Court

came to hold that there had been no violation of the terms of the Water Act.

The submission of the prosecution that the water flows from the factory to

the pans in a kachcha drain thereby there was violation of conditions is not

based on materials in the sense that it was not the basis for the complaint

and was also not the basis of judgments of courts below.  

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12. Learned  counsel  for  the  respondent  submitted  that  the  question  is

whether the amended provisions apply and the authorization has to be by

the State Board. That question need not be gone into as the prosecution was

required to prove that the solar evaporation pan maintained by the company

had over flown and the over flown effluent did not conform to the tolerance

limits  prescribed.  The  documents  on  record  clearly  establish  that  the

company was discharging  its  effluent  into  the  drain  leading  to  the  solar

evaporation pan i.e.  into the solar evaporation pan. There was nothing to

show that  any  sample  of  any  over  flown  effluent  has  been  taken.  It  is

pointed out that the sample taken on 22.6.1989 is not of over flown effluent,

but of effluent which was on the way to the solar evaporation pan for further

treatment.   It  is  also  submitted  that  Section  21(5)  obliges  the  Board  to

forward  the  sample  for  the  purpose  of  analysis.  In  the  instant  case  the

sample was taken on 22.6.1989 and was received on 28.6.1989.  The delay

has not been explained.

13. There  is  no  substantial  difference  in  the  language  of  the  amended

Section 49. The High Court proceeded on the basis that the complaint was

illegal since the complaint filed was not duly authorized.  Though the High

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Court proceeded on the basis of amended Section 49, the amended as well

as un-amended provisions require the State Board to file a complaint or to

authorize any of its officers to file the complaint. The authorization has to

be by the State Board. According to the Board under Section 11-A of the

Act it had delegated to the Chairman the power to authorize an officer to file

a complaint. Resolution dated 27.3.1984 refers to the delegation of power to

sanctioning prosecution. The High Court has held that the power to sanction

a complaint is distinct from the power to authorize the complaint. This view

is clearly unsustainable for the reason that if the provisions are construed in

the  context  that  as  a  check  over  the  complaint  filed,  then  the  grant  of

sanction to file  a complaint  would be in law an authorization  to  file  the

complaint. The stand of the appellant that the difference between sanction

and  authorization  in  the  context  of  provisions  of  the  Act  and  incontra-

distinction to the provisions of IPC and the Code is more semantic than real.

The stand is well founded.  The appeal can be disposed of on the ground

that factually there is nothing to show that the sample collected was from

the  over-flown  effluent.  The  evidence  on  record  clearly  shows  that  the

effluent was on the way to the solar evaporation pans for further treatment.

The said effluent would never meet the parameters prescribed as it is yet to

be treated. Thus, the alleged breach of condition No.4 has not been proved.

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On that ground alone the appeal deserves to be dismissed. In view of this

conclusion it is not necessary to go into the other aspects as to what is the

effect of the resolution of the State notified on 28.10.1999 i.e. after the date

of amendment of the statute of Section 49 on 29.9.1999. The authorization

by  the  Chairman  was  on  18.8.1989.  In  view  of  the  factual  aspects

highlighted, the appeal deserves to be dismissed which we direct.  

……………………………..J. (Dr. ARIJIT PASAYAT)

…………………………..…J. (P. SATHASIVAM)

……………………..………J. (AFTAB ALAM)

New Delhi, December 4, 2008

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