Dismissed

Sri Vysya Raju Ramesh Raju, v. The State of A.P.

Telangana HC8 Feb 2011CRLP/3528/2009

Case brief

AI extract

What is this about?

In a common order dismissing multiple criminal petitions, the High Court of Andhra Pradesh held that complaints filed by the Pollution Control Board alleging violations of the Air (Prevention and Control of Pollution) Act and closure orders establish a legal ground for prosecution under Section 37. The Court ruled that the inherent powers under Section 482 Cr.P.C. cannot be used to quash the compl

What did the court decide?

Application to quash complaints under Section 482 Cr.P.C. dismissed; proceedings in lower court to continue.

Sri Vysya Raju Ramesh Raju, Vs The State of A.P. — Environment and Pollution | Telangana HC (2011)

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IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD

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HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU

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CRIMINAL PETITION Nos.1962, 2118, 2119, 2120, 2278, 2279, 2280, 2319, 2320, 2634, 2635, 3528, 7306 & 7308 OF 2009

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DATE: 08.02.2011

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C.R.P.No.1962 of 2009

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Between:

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T.Jayaram and another …… Petitioners And

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The State of A.P., rep. by Public Prosecutor, High Court of A.P., Hyderabad and another

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…..Respondents

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C.R.P.No.2118 of 2009

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Between:

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Penta Sasibhushan Rao and another …… Petitioners And

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The State of A.P., rep. by Public Prosecutor, High Court of A.P., Hyderabad and another …..Respondents

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C.R.P.No.2119 of 2009

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Between:

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M.Suryanarayana Guptha and another …… Petitioners And

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The State of A.P., rep. by Public Prosecutor, High Court of A.P., Hyderabad and another

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…..Respondents C.R.P.No.2120 of 2009 Between: Penta Kameswara Rao and another …… Petitioners And The State of A.P., rep. by Public Prosecutor, High Court of A.P., Hyderabad and another …..Respondents C.R.P.No.2278 of 2009 Between: Sudia Neelakanteswara Rao and another …… Petitioners And The State of A.P., rep. by Public Prosecutor, High Court of A.P., Hyderabad and another …..Respondents C.R.P.No.2279 of 2009 Between: Tangudu Nagaraju and another …… Petitioners And The State of A.P., rep. by Public Prosecutor, High Court of A.P., Hyderabad and another …..Respondents C.R.P.No.2280 of 2009 Between: Patnana Vykunta Rao and another …… Petitioners And

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The State of A.P., rep. by Public Prosecutor, High Court of A.P., Hyderabad and another …..Respondents C.R.P.No.2319 of 2009 Between: Penta Krishna Rao …… Petitioner And The State of A.P., rep. by Public Prosecutor, High Court of A.P., Hyderabad and another …..Respondents C.R.P.No.2320 of 2009 Between: Penta Rama Rao …… Petitioner And The State of A.P., rep. by Public Prosecutor, High Court of A.P., Hyderabad and another …..Respondents C.R.P.No.2634 of 2009 Between: K.Manmadha Rao …… Petitioner And The State of A.P., rep. by Public Prosecutor, High Court of A.P., Hyderabad and another …..Respondents C.R.P.No.2635 of 2009 Between:

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Smt.Thangudu Padmavathi …… Petitioner And The State of A.P., rep. by Public Prosecutor, High Court of A.P., Hyderabad and another …..Respondents C.R.P.No.3528 of 2009 Between: Vysya Raju Ramesh Raju …… Petitioner And The State of A.P., rep. by Public Prosecutor, High Court of A.P., Hyderabad and another …..Respondents C.R.P.No.7306 of 2009 Between: Sudiya Suresh Kumar …… Petitioner And The State of A.P., rep. by Public Prosecutor, High Court of A.P., Hyderabad and another …..Respondents C.R.P.No.7308 of 2009 Between: Penta Udaya Sankararao …… Petitioner And The State of A.P., rep. by Public Prosecutor, High Court of A.P., Hyderabad and another …..Respondents

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THE COURT MADE THE FOLLOWING:

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HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU

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CRIMINAL PETITION Nos.1962, 2118, 2119, 2120, 2278, 2279, 2280, 2319, 2320, 2634, 2635, 3528, 7306 & 7308 OF 2009

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COMMON ORDER :

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1) Common questions of fact and law arise for consideration in this batch of criminal petitions filed by the accused, who are accused of offences punishable under Section 37 of the Air (Prevention and Control of Pollution) Act, 1981 (in short, the Act). The petitioners/accused are seeking quashing of private complaints filed by the second respondent/The A.P. Pollution Control Board (in short, the Board) against them in the Court of Judicial Magistrate of the First Class, Palasa, Srikakulam District.

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2) It is alleged that the accused are running cashew kernel manufacturing units in Palasa-Kasibugga-Mogilipadu areas of the district by drum roasting process without consent for operation from the Board as required under Section 21/22 of the Act causing severe air pollution to the surrounding area and illhealth to the residents of the area and that the public made several complaints to the Board against pollution caused by the

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cashew kernel units from drum roasting process and that the Board directed not to carry drum roasting process after 10.12.2005 in the area as per order dated 30.6.2005 of the Joint Chief Environmental Engineer of the Board’s Zonal Office, Visakhapatnam and that subsequently, the Zonal Office also issued directions by order dated 14.4.2006 for shifting all the cashew manufacturing units of the area to boiling process and the said order was served on the President of the Palasa Cashew Manufacturer’s Association, Palasa in which the accused are members and that in spite of it, the accused were continuously operating the industry in drum roasting process in gross violation of the directions issued under Section 31A of the Act. It is further alleged that on 8.2.2007, the Joint Chief Environmental Engineer of the Board’s Zonal Office at Visakhapatnam issued closure orders under Section 31A of the Act to the accused industries in the interest of environment and general public health in particular and the accused were ordered to stop all the industrial activities with immediate effect from the date of the said order. There is no dispute that the accused preferred appeals against closure orders dated 8.2.2007 before the Appellate Authority at Hyderabad, who dismissed the said appeals by common order dated 28.4.2007. It is alleged that though the accused are fully aware of the said facts, they have been continuously operating the said industry in gross violation of the closure orders issued under Section 31A of the Act. It is

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further alleged that the Board conducted ambient air quality monitoring in the area several times and between 7^th to 9^th of February, 2007 and observed that Suspended Particulate Matter (SPM) and Respirable Suspended Particulate Matter (RSPM) values are exceeding the standards of the National Ambient Air Quality issued under the Environment (Protection) Act, 1986. It is further alleged that the accused failed to install neither air pollution control equipment to their units nor shifted to boiling process and thereby causing severe air pollution to the surrounding areas and are causing ill-health to the residents and public. According to the complainant, residential houses are located at a distance of 300 meters from the industries.

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3) It is specific case of the complainant/2^nd respondent/Board that on 20.9.2007, the complainant inspected and observed that the accused were operating the units with drum roasting process in violation of the provisions of the Act. Thus, in essence, it is the complaint of the complainant that the accused were operating the units without complying with Sections 21/22 of the Act and in violation of closure orders issued under Section 31A of the Act.

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4) Firstly it is contended by the petitioners’ counsel that conducting of ambient air quality monitoring and collection of samples of air or emission by the Board as indicated in Annexure-V of the complaint is not in accordance with the

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procedure prescribed by Section 26 of the Act. Suspended Particulate Matter (SPM) and Respirable Suspended Particulate Matter (RSPM) values mentioned in Annexure-V of the complaint, are mentioned not as a basis for conviction of the accused under Section 37 of the Act, but the said particulars were given in the complaint, perhaps, to justify closure orders dated 8.2.2007 issued by the Board in respect of the units of the accused. The closure orders dated 8.2.2007 were challenged by the accused by way of appeals to the Appellate Authority under the Act and those appeals were dismissed by the Appellate Authority and the said closure orders became final. The complainant alleges in the complaints before the lower Court that in spite of the closure orders dated 8.2.2007, the accused were running the industries by drum roasting process even on 20.9.2007 and that it amounts to an offence under Section 37 of the Act.

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5) Section 37 of the Act prescribing the penalty, reads as follows:

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“37. FAILURE TO COMPLY WITH THE PROVISIONS OF SECTION 21 OR SECTION 22 OR WITH THE DIRECTIONS ISSUED UNDER SECTION 31A.-

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(1) whoever fails to comply with the provisions of section 21 or section 22 or directions issued under section 31A, shall, in respect of each such failure, be punishable with imprisonment for a terms which shall not be less than one year and six months but which may extend to six years and with fine, and in case the failure continues, with an additional fine which may extend to five thousand rupees for every day during which such failure continues after the conviction for the first such failure.

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(2) If the failure referred to in sub-section (1) continues beyond a period of one year after the date of conviction, the offender shall be punishable with imprisonment for a term which shall not be less then two years but which may extend to seven years and with fine.”

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In the criminal cases, the complainant alleges that the accused are liable for punishment under Section 37 of the Act, firstly for failure to comply with Section 21/22 of the Act and secondly for failure to close the units in spite of closure orders issued under Section 31A of the Act.

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6) The complainant filed several photographs of the units to show that the units were being run by drum roasting process even on 20.9.2007 when the officials of the Board made inspection of the respective units. It is contended by the petitioner’s counsel that those photographs are not valid evidence to prove that a particular unit was run on a particular day by drum roasting process. Photographs have to be read along with oral evidence to be lent in by the complainant during the course of trial of the cases in the lower Court. It is for the trial Court to decide whether the evidence let in by the complainant is proper, valid and sufficient and to come to the conclusion on truth or otherwise of the allegations contained in the complaint. This Court while exercising power under Section 482 Crl.P.C. in this petition, cannot go into the said disputed question of fact.

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7) In these criminal petitions, it is not the petitioner’s

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case that they have been running their respective units by drum roasting process with consent for operation given by the Board under Section 21/22 of the Act.

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8) It is contended by the petitioners’ counsel that Section 43 (1)(a) of the Act contemplates filing of complaint either by the Board or by an officer authorised by the Board in that behalf. Relevant portion of Section 43 of the Act reads as follows:

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“43. COGNIZANCE OF OFFENCES.-

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(1) No court shall take cognizance of any offence under this Act except on a complaint made by-

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(a) a Board or any officer authorised in this behalf by it….”

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9) It is contended that the Board is represented by Member Secretary and that if any officer of the Board is filing the complaint, then such officer should have been authorised specifically by the Board in each case against each accused specifying the reasons for prosecuting that particular accused. This contention of the petitioners’ counsel has no legs to stand as per the statutory provision. Authorisation contemplated under Section 43(1)(a) of the Act, is mere authorisation for launching prosecution on behalf of the Board and it cannot be equated with a sanction for prosecution against a particular accused. The phrase “in this behalf” relates to filing of complaint only and does not relate to specification of details of each of the accused and

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their contravention of law in that particular case. The authorisation contemplated under Section 43(1)(a) of the Act may be in respect of a particular case or in respect of a batch of cases or group of cases or in respect of cases arising out of a particular local area. There is no restriction imposed by Section 43(1)(a) of the Act for giving authorisation by the Board to any of its officers for filing the complaint/complaints.

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10) In this batch of cases, the complainant is described in the cause title as The A.P. Pollution Control Board, Regional Office, represented by the Environmental Engineer at Vizianagaram. But, in first para of the complaints, it is stated that the complainant is the Environment Engineer of the A.P. Pollution Control Board, Regional Office, Vizianagaram and that he is the authorised person to file criminal case against the accused. No doubt, along with the respective complaints, the complainant did not file the authorisation. The 2^nd respondent’s counsel contended that there is resolution of the A.P. Pollution Control Board giving authorisations as per law and the 2^nd respondent’s counsel stated that he has got copies thereof. It is for the 2^nd respondent/complainant to file the appropriate resolutions of the Board and the authorisations or notifications, etc. before the trial Court to prove that the person who presented the respective complaints has got authorisation to present the same in accordance with Section 43(1)(a) of the Act. It is

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sufficient to note in these petitions that the respective complaints contain the required allegation that the Environmental Engineer of the Board’s Regional Office is the authorised person to file the criminal case. The 2^nd respondent’s counsel placed reliance on two unreported decisions of this Court in Mallu Sadasiva Rao Vs. The State (in Crl.P.No.2790/2008, dated 5.8.2010) and Sm.Ippili Chaitanya Vs. The State (in Crl.P.Nos.6487 & 7116 of 2007, dated 12.8.2010) in this behalf and contended that this Court upheld filing of complaints by Environmental Engineers of the Board in those cases.

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11) The 2^nd respondent’s counsel further placed reliance on U.P.Pollution Control Board Vs. Bhupendra

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Kumar Mod i^[1] of the Supreme Court wherein it was observed. “The inherent power should not be exercised to stifle a legitimate prosecution. The inherent power should not be exercised to stifle a legitimate prosecution. If the allegations set out in the complaint do not constitute offence of which cognizance has been taken by the magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Crl. Procedure Code. However, it is not necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal.”

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12) Thus, allegations contained in the respective

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complaints filed by the 2^nd respondent against the petitioners taken on their face value, do not make out any legal ground for

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quashing the complaints filed by the 2^nd respondent against the petitioners for offences under Section 37 of the Act, while exercising power under Section 482 Cr.P.C.

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13) In the result, all the criminal petitions are dismissed.

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_______________________________ SAMUDRALA GOVINDARAJULU, J

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08.02.2011 Note: L.R. Copy to be marked. TJMR

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HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU

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CRIMINAL PETITION Nos.1962, 2118, 2119, 2120, 2278, 2279, 2280, 2319, 2320, 2634, 2635, 3528, 7306 & 7308 OF 2009

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DATE: 08.02.2011