1. This is an application under Ss. 401 and 482 of the Code of Criminal Procedure for quashing a proceeding under S. 44 of the Water (Prevention and Control of Pollution) Act, 1974, pending in the Court of the 6th Metropolitan Magistrate, Calcutta being Case No. C/1436 of 1982 (State v. Shaw Wallace & Co. Ltd.)
2. The present application is by the another accused namely K.K Nandi. The complaint was loqged by the Executive Engineer Engineer No. 1 of West Bengal Prevention and Control of Water Pollution Board. The petition of complaint has been made an annexure to the application. The principal allegations set out in the said petition may be stated thus:—
The accused No. 1 namely, the company is carrying on the business of manufacturing brewer in its factory at Bhadrakali in the district of Hooghly and the accused No. 2 (the petitioner herein) is the manager of the of the company and is responsible for the day to day work of the factory. Under the provisions of the Water (Prevention and Control of Pollution) Act, 1974 (hereinafter called the said Act) any sewage or trade effluent into a stream or well is required to obtain consent of the State Board prior to its discharging of sewage or trade effluent into a stream or well. On 7.7.1979 an inspection was held at the factory site of the accused company during which it transpired that the company had systematically neglected and refused to take any measures of the effluent which contains poisonous and noxious properties and such continuous discharge of such effluent harmed the wholesomeness of the water of the river Hooghly into which the effluent is discharged. The accused persons intentionally and deliberately neglected to fulfil the terms of the conditional consent and abide by the conditions previously imposed in spite of adequate opportunities being provided by the Board in that regard. It is, therefore, complained that the accused persons are liable for prosecution under Ss. 25 and 26 of the said Act.
3. The petitioner who is the Manager of the factory has filed the present application for quashing the proceedings as against him.
4. Mr. Roy appearing on behalf of the petitioner contends that the petition of complaint lacks in material particulars and makes out no prima facie case whatsoever against the petitioner. Precisely his contention is that the petition of complaint has merely used the language of the section without enumerating how the petitioner is responsible and how he has violated any of the provisions of the said Act. By reason of the alleged vagueness in the petition of complaint, Mr. Roy submits that the entire proceeding is liable to be quashed.
5. Section 25 of the Act imposes restrictions on new outlet and new discharges. It provides that no person shall, without the previous consent of the State Board, bring into use any new or altered outlet for the discharge of sewage or trade effluent into a stream or well. Sub-section (2) of S. 25 lays down how an application for consent is to be made. Sub-section (3) empowers the State Board to make such enquiry as it may deem fit in respect of the application for consent. Sub-section (4) further empowers the State Board to grant its consent on such conditions as it may impose and the conditions that may be imposed are enumerated in Clauses (a) and (b). The other sub-sections of S. 25 need not be referred to for the purpose of the present application. Section 26 makes provisions regarding discharge of sewage or trade effluent existing from before the commcement of this Act. It lays down that any such person shall be required to make the application referred to in S. 25 subject to the modification that the application for consent has to be made within a period of three months of the constitution of the Board.
6. In relation to a company as in this case, the penal provision is contained in S. 47. Sub-section (1) of S. 47 provides that where an offence under this Act has been committed by a company every person who at the time the offence was committed was incharge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence, and shall be liable to be proceeded against and punished accordingly.
7. There is no dispute that the accused company is an existing company at the date of the constitution of the State Board. It is stated in the petition of complaint that in September 1978 the company was granted provisional consent under the said Act imposing certain general and special conditions requiring the company to adhere to the same strictly. It is then stated that in December, 1978 an inspection was held in the factory premises of the company and it transpired that the company was, in disregard to and in breach of the conditions laid down in the provisional consent discharging its effluents into the river Hooghly without any sort of treatment whatsoever. In view of the aforesaid conduct of the company no further provisional consent was granted. It is then stated that on a further inspection held in July, 1979 it transpired that the company systematically neglected to take any measure for the treatment of the effluent. In paragraph 4 of the petition of complaint it is stated that the accused No. 2 (the petitioner) is the Manager of the company and is responsible for the day to day work of the factory. Mr. Roy's grievance is that such vague allegations made by merely quoting the language of the section is not sufficient to bring home a charge against the petitioner. It is argued that in order to be liable under the Act the petitioner must be shown to be incharge of and responsible to the company for the conduct of its affairs and must be in overall control of the day to day operation of the factory. Such allegations being wanting in the petition, it is contended that the petition of complaint does not disclose the commission of an offence by the petitioner so as to enable the Magistrate to take action thereupon. Having read the penal provision contained in S. 47 of the Act which has already been referred to, I am unable to accept the contention of Mr. Roy. It is not a case where the petition of complaint has failed to disclose any prima facie case against the petitioner but has merely made him liable by quoting the language of the law. In fact the language of the section makes a person liable if he was in charge of and was responsible to the company for the conduct of the business of the company. What is stated in the petition of complaint in paragraph 4 is that the petitioner is the Manager of the company and is responsible for the day to day work of the factory. In denying this averment it is stated in paragraph 2 of the present application that the petitioner was the Manager of the company's factory at Bhadrakali and that at no point of time the petitioner had any hand in the management of the factory nor was he in overall control of the day to day affairs of the aforesaid factory. In S. 47 the expression ‘Manager’ has not been used. Liability has been fixed upon every person who was in charge of and was responsible for the conduct of the business of the company. A person lesser than a Manager can possibly plead that he is not in charge of and responsible to the company for the business of the company. But a Manager who undoubtedly is a person liable for the due management of the affairs of the factory cannot evade the liability only on the plea that he has been described as a Manager and nothing more has been said as regards his responsibilities. In fact the averments made in the petition of complaint that he was the Manager of the factory prima facie makes him liable. Whether or not the petitioner was in fact in overall charge of the affairs of the factory and whether or not he had any knowledge of the commission of the offence are questions of fact which may be conveniently considered at the trial. In fact the proviso to sub-s. (1) of S. 47 exempts a person from the liability to any punishment if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. Therefore, it is available to the petitioner to make out a case at the appropriate stage claiming exemption from the liability to any punishment. But it is against all common sense to presume that the petitioner who was admittedly the Manager of the factory at the relevant time had no hand in the affairs of the factory. And yet that is the case of the petitioner as made out in paragraph 2.
8. In my view it is not open to the petitioner at this stage to contend that no prima facie case has been disclosed so that the proceeding should be quashed. In that view of the matter the application fails. The application is accordingly dismissed. All interim orders are vacated. The order be communicated to the court below forthwith.
Rule discharged.
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