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T.G Krishnamoorthy v. G. Rangasamy
Factual and Procedural Background
M/s. Gangappa Paper Mills Ltd., located at Vadakathu village, Panruti Taluk, South Arcot District, manufactures paper using raw materials such as paddy, straw, cotton rags and waste paper. Its Managing Director is T.G. Krishnamurthy. The mill produces about 900 tonnes of paper (with 810 tonnes of pulp) per month and reportedly uses 9,000 kilolitres of water daily, discharging approximately 7,300 kilolitres per day as trade effluent and 400 kilolitres per day as sewage.
The industry applied on 8.10.1982 to the Tamil Nadu Pollution Control Board ("the Board") for consent under Section 26 of the Water (Prevention and Control of Pollution) Act, 1974 ("the Act"). The Board granted consent in proceedings dated 2.1.1984 on condition that all treatment units required to meet prescribed tolerance limits be completed within three months. Subsequent inspections by the Regional Officer on 25.2.1984 and 16.5.1984 found parts of the treatment system non-functional or under repair, and the industry was advised to rectify defects.
On 21.9.1984 a sample of treated trade effluent was taken in the presence of industry officials and analysed under Section 21 of the Act and Rule 25 of the Tamil Nadu Rules, 1983. The analysis showed that the treated effluent did not meet Board-prescribed standards. The Board concluded that the industry had contravened Section 26 (applicable to existing industries) and, at its meeting on 16.2.1985, resolved to initiate prosecution under Section 44 of the Act.
Pursuant to the Board's resolution, a complaint was lodged against T.G. Krishnamurthy (initially alone) and taken on file as C.C. No. 145 of 1985 before the Judicial First Class Magistrate, Cuddalore; it was later transferred and renumbered as C.C. No. 162 of 1985 before the Chief Judicial Magistrate, South Arcot District at Cuddalore. During the trial, the prosecution applied under Section 319 Cr.P.C. to implead M/s. Gangappa Paper Mills Ltd. as an accused; this was resisted but permitted. The Mills and its Managing Director filed various challenges (including Crl.R.C. No. 395 of 1986 and Crl.M.P. No. 5769 of 1986) which were dismissed by this Court on 14.6.1990.
After witnesses were examined, the accused filed Crl.M.P. No. 794 of 1991 before the trial court seeking discharge on four grounds: (1) lack of proper sanction to the complainant to launch prosecution; (2) the person taking the effluent sample was not authorized, rendering the analyst's report inadmissible; (3) the alleged violation of the consent order is not a contravention punishable under Section 26/44 but (if at all) under Section 45-A introduced by the 1988 Amending Act; and (4) the Managing Director could not be held liable in the absence of allegations that he was in charge of and responsible for the mill's conduct. The trial Magistrate dismissed that discharge petition and framed charge. The accused then filed Crl.R.C. No. 673 of 1991 and Crl.O.P. No. 13211 of 1991 before this Court; the Court considered and dismissed these petitions.
Legal Issues Presented
- Whether the absence of a specific written sanction to the complainant (to launch prosecution) vitiates the prosecution under the Act.
- Whether the analyst's report of the effluent sample is inadmissible because the person who took the sample was not authorized to do so.
- Whether the alleged violation of the Board's consent order constitutes an offence under Section 26 punishable under Section 44, or whether such violation is only punishable under Section 45‑A (as introduced by the Amending Act of 1988), given that the alleged contravention pre-dated the Amending Act.
- Whether the Managing Director, T.G. Krishnamurthy, can be prosecuted in absence of specific allegations that he was in charge of and responsible for the mill's conduct.
Arguments of the Parties
Petitioners' Arguments (summarised)
- The complaint lacks proper sanction from the State Board, which vitiates the prosecution.
- The person who took the sample was not authorised to do so; consequently the analyst's report is inadmissible in evidence.
- The alleged breach of the consent order cannot be treated as a contravention of Section 26 punishable under Section 44; if any penalty applies it is under Section 45‑A of the Amending Act (53 of 1988), which came into force on 3.10.1988, whereas the alleged breach occurred earlier.
- The Managing Director cannot be prosecuted because the complaint does not allege he was in charge of and responsible for the mill's conduct.
Respondent / Prosecution (summarised)
- Learned Government Advocate opposed the petitioners' submissions; the opinion contains no further detailed exposition of the prosecution's arguments beyond that general rebuttal.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Court considered each submission in sequence and analysed them against the statutory scheme of the Act and the Rules, relying exclusively on provisions quoted and discussed in the opinion.
1. Authorization / Sanction to Launch Prosecution
The Court examined Section 49 of the Act and Rule 16 of the Tamil Nadu Rules (powers and duties of the member‑secretary). Section 49 provides that no Court shall take cognizance of offences under the Act except on a complaint made by the Board or with the previous written sanction of the Board, and that only Courts not inferior to Presidency Magistrate / First Class Magistrate can try such offences. The Court emphasised the disjunctive wording ("made by, or with previous sanction, in writing, of the State Board") to conclude that if a complaint is made by the Board itself, no separate sanction is necessary; the sanction requirement applies when a complaint is lodged by a person other than the Board.
Rule 16 (sub‑rules (1) and (3)) designates the member‑secretary as the Board's chief executive officer with authority for day‑to‑day functioning and provides that orders and instructions of the Board shall be over the signature of the member‑secretary or any officer duly authorised by him. The Board had a resolution authorising prosecution and the complaint in the present case was lodged by the Member‑Secretary (in charge) and represented by the Regional Officer; the Court held that this process complied with Section 49 and Rule 16 and therefore the first submission has no merit.
2. Admissibility of Analyst's Report (Authority to Take Samples)
The Court analysed Section 21 of the Act which empowers the State Board or any officer empowered by it to take samples for analysis and makes the result admissible only if sub‑sections (3) to (5) of Section 21 are complied with. The Court noted that the petitioners did not challenge compliance with subsections (3) to (5) (which concern procedure for sampling, division of samples, laboratories, and attendant procedures), but instead argued that the person who took the sample was not authorized.
The Court reviewed Board orders: D.P.(Ms) No. 4 dated 21.1.1983 listed officers empowered to take samples (including Assistant Environmental Engineer and others). Later, by D.P.(Ms) No. 56 dated 24.10.1984, the nomenclature was changed so that Assistant Environmental Engineer became "Regional Officer" (and Junior Environmental Engineer became "Deputy Regional Officer"). The sample in this case was taken by a Regional Officer (formerly Assistant Environmental Engineer). The Court held that the redesignation did not remove the authority to take samples and therefore the submission that the sampler was unauthorized lacked merit.
3. Legal Characterisation of Violation — Section 26 & Section 44 vs Section 45‑A
The Court set out the scheme: Section 25 applies to new industries and new or altered outlets (consent prerequisites); Section 26 applies to existing industries and requires existing dischargers to comply similarly, with the modification that application for consent must be made within three months of the constitution of the State Board. Section 44 prescribes punishment for contravention of Section 25 or Section 26 (minimum six months imprisonment up to six years and fine).
Section 45‑A (introduced by the Amending Act 53 of 1988, effective 3.10.1988) prescribes penalty for contraventions or failures for which no penalty is provided elsewhere in the Act — i.e., it is a residuary penal provision and does not apply where specific penalties are prescribed under the Act.
The Court noted the factual matrix: the Board's consent dated 2.1.1984 imposed completion of treatment units within three months; multiple inspections and directions were given; a sample taken on 21.9.1984 demonstrated non‑compliance with standards. The Court concluded that there were prima facie materials indicating violation of the consent condition; since such a condition is framed under Section 26 for existing industries, its violation falls within the contraventions punishable under Section 44. Section 45‑A therefore did not supplant Section 44 in these circumstances because Section 44 specifically provided the penalty for contravention of Sections 25/26.
4. Liability of the Managing Director (T.G. Krishnamurthy)
The Court addressed Section 47 of the Act (as discussed in the opinion). Sub‑section (1) creates a rebuttable presumption that a person "in charge of and responsible to the company for the conduct of the business" shall be deemed guilty of an offence, subject to proof that the offence occurred without his knowledge or that he exercised due diligence to prevent it.
The Court held that the designation "Managing Director" itself imports the idea of being in charge and responsible for the conduct of the company's affairs, enabling the application of sub‑section (1) (subject to the proviso permitting rebuttal). Even if it were assumed that he was not specifically alleged to be the person in charge, sub‑section (2) permits prosecution of any director, manager, secretary or officer if the offence is proved to have been committed with their consent or connivance or is attributable to their neglect — and that provision contains its own deeming rule permitting prosecution irrespective of explicit prior allegation of managerial control.
The Court emphasised the difference in burden: under sub‑section (1) the presumption operates against the person alleged to be in charge (who must rebut it), whereas under sub‑section (2) prosecution must prove consent, connivance or neglect on the part of the officer (the burden remains on prosecution). Considering those statutory rules, the Court found no merit in the submission seeking quashing as to the Managing Director.
Holding and Implications
Holding: The Court concluded that none of the petitioners' grounds for quashing the criminal proceedings had merit. Consequently, both the revision petition and Crl.O.P. No. 13211 of 1991 were dismissed.
DISMISSED
Implications
- The prosecution initiated by the Board against the Managing Director and the company may proceed; the trial court's framing of charge stands. The immediate practical effect is that the criminal proceedings are not quashed at this stage and the case will continue to trial.
- The Court applied statutory interpretation of Sections 21, 25, 26, 44, 45‑A, 47 and 49 of the Act, and Rule 16 of the Rules, to reject the legal challenges raised. The decision rests on the statutory text, the Board's empowering orders for officers to take samples (including redesignation), and the factual record of inspections and sample analysis. The opinion does not advertise a new legal principle beyond its application of the statutory scheme to the facts; it affirms that specific penal provisions (Section 44) apply to violations of consent conditions under Section 26 and that Section 45‑A is residuary in nature.
- The opinion contains no citation of judicial precedents; its reasoning is statutory and fact‑driven. No new binding precedent beyond this case's application of the Act is explicitly declared in the text.
M/s. Gangappa Paper Mills Ltd., is located at Vadakathu village, Panruti Taluk, South Arcot District. Its Managing Director is one T.G Krishnamurthy.
2. The said mills manufactures paper with paddy, straw, cotton rage and waste paper as raw materials. The various chemicals used in the process are resin, soapstone, lime alu caustic lye, chlorine etc. It manufactures 900 tonnes of paper with an intermediate product of 810 tonnes of pulp a month. The daily quantity of water utilized for the industrial purpose is reported to be 9000 kilo litres. Out of this, 7300 kilo litres per day are discharged as trade effluent, besides, discharging 400 kilo litres of sewage per day.
3. The industry in its letter dated 8.10.82 had applied for consent of the Tamil Nadu Pollution Control Board (for short ‘the Board’) for discharge of sewage/trade effluent under Sec. 26 of the Water (Prevention and Control of Pollution) Act, 1974 (for short ‘the Act’). The industry informed that 7300 kilo litres of trade effluent per day was discharged into a nullah. It was further reported that the trade effluent was treated in primary clarifier, anaerobic lagoon, aerobic lagoon and secondary clarifier.
4. Consent was issued to the industry in the Board's proceedings dated 2.1.84, subject to the condition that all units of treatment plant already contemplated or required to be contemplated to achieve the quality of effluent according to the tolerance limits prescribed by the Board should be completed within three months from the date of consent order.
5. The Regional Officer of the Board made an inspection of the industry on 25.2.84 and on that date, it was noticed that a part of the treatment system was not working. The industry was therefore advised to expedite the operation of the treatment system early.
6. Again, there was an inspection on 16.5.84 by the Regional officer of the Board and on that date, it was found that the industry was not running and some mechanical equipments in the treatment units had been sent for repairs. The industry was advised to rectify the defects in the existing treatment system.
7. The progress on the improvements of the existing treatment system to make the quality of effluent to satisfy the standards prescribed by the Board in the consent order was pursued by the Board and the industry had been representing that they had been trying their best to conform to the requirements of the Board.
8. The industry was inspected on 21.9.84 and sample of treated trade effluent was collected, in the presence of officials of the industry and sent for analysis as per the provisions of Sec. 21 of the Act and Rule 25 of the Tamil Nadu Water (Prevention and Control of Pollution) Rules, 1983 (for short ‘the Rules’). The report of analysis of treated trade effluent revealed that the trade effluent did not satisfy the standards prescribed by the Board.
9. Inasmuch as the industry did not treat the trade effluent to the standards prescribed by the Board in the consent order, the industry had contravened the provisions of Sec. 26, punishable under Sec. 44 of the Act.
10. The above facts were placed before the Board at its thirteenth meeting held on 16 Feb. 85 and it was decided by the Board to launch prosecution against M/s. Gangappa Paper Mills Ltd., under Sec. 44 of the Act.
11. In giving effect to the resolution of the Board, Thiru G. Rangasamy, Member-Secretary in-charge of the Board represented by Thiru. K. Renganathan, Regional Officer of the Board, lodged a complaint against Thiru. T.G Krishnamoorthy, Managing Director alone originally for the aforesaid alleged offence, which was originally taken on file in C.C No. 145 of 1985 on the file of the Judicial First Class Magistrate, Cuddalore.
12. The case subsequently got transferred and numbered as C.C No. 162 of 1985 on the file of the Chief Judicial Magistrate, South Arcot District at Cuddalore.
13. After commencement of the trial, the prosecution filed an application under Sec. 319 of the Code of Criminal Procedure, 1973 in Crl.M.P No. 489 of 1986 for impleading M/s. Gangappa Paper Mills Ltd., as an accused. That petition had been stoutly resisted. However, that petition had been ordered as prayed for, Aggrieved by the said order, the said Mills preferred Crl.R.C No. 395 of 1986 while its Managing Director Thiru T.G Krishnamurthy filed Crl.M.P No. 5769 of 1986 on the file of this Court to quash the proceedings initiated against him. This Court by a common order dated 14 Jun. 90 dismissed them.
14. Thereafter, the trial of the case commenced and certain witnesses were examined prior to the framing of the charge. At this stage, a petition in Crl.M.P No. 794 of 1991 had been filed before the Court below pleading for the discharge of the accused on twinfold grounds, namely, (1) want of proper sanction; and (2) personnel taking sample of the treated trade effluent was not authorised to take such sample and therefore it is that the report of the analysis of the said sample is an inadmissible piece of evidence. These grounds did not carry conviction with the trial Magistrate, who consequently dismissed that petition and framed a charge.
15. Aggrieved by the said order, Crl.R.C No. 673 of 1991 had been filed before this Court. This apart, Crl.O.P No. 13211 of 1991 had also been filed for quashing the criminal proceedings initiated against them.
16. From the submissions of learned counsel for the petitioners in both the petitions, the following points would merge for consideration:
(1) The absence of proper authorisation to the complainant to launch prosecution against the petitioners is a vitiating factor rendering the prosecution itself not sustainable in law;
(2) Inasmuch as the personnel taking sample of the treated trade effluent was not authorised to take such sample, the report of the Analyst is an inadmissible piece of evidence;
(3) The alleged violation of the consent order can, by no stretch of imagination, be stated to be violation of the provisions of Sec. 26, punishable under Sec. 44 of the Act and if at all such a violation is punishable under Sec. 45-A, which had been introduced by the Amending Act 53 of 1983 and since the provisions of the Amending Act came into force on Oct 3, 1988, the petitioners cannot at all be mulcted with liability under the said sec. inasmuch as the alleged violation of the consent order, happened much earlier to the coming into force of the Amending Act and
(4) The first petitioner, namely, Thiru. T.G Krishnamurthy, who is stated to be the Managing Director of the Mills cannot be mulcted with any liability for alleged refraction or violation of any of the provisions of the Act, on the face of the absence of any allegation in the complaint to the effect that he was in charge of and responsible to the Mills for the conduct of its business.
Learned Government Advocate would however repel such submissions.
17. The first submission revolving on the question of absence of proper authorization to the complainant to launch the prosecution against the petitioners, serving as an vitiating factor, rendering the unsustainability of the prosecution cannot at all be acceded to or countenanced, on the face, of the salutary provisions adumbrated under Sec. 49 of the Act and Rule 16 of the Rules. So much of the provisions of the section and the Rule, which are relevant for our present purpose is couched in the following terms:
“Sec. 49 — Cognizance of offences: (1) No Court shall take cognizance of any offense under this Act except on a complaint made by, or with previous sanction in writing of the State Board, and no Court inferior to that of a Presidency Magistrate or a Magistrate of the first class shall try any offence punishable under this Act . ..
Rule 16. Powers and duties of the member - secretary: —
Subject to the over all control of the chairman, the member - secretary shall exercise the following powers, namely :—
(1) The member - secretary shall be chief executive officer of the Board and shall be responsible for the day-to-day and orderly functioning of the offices of the Board and he shall have all powers necessary therefore . ..
(2) . ..
(3) All orders and instructions of the Board shall be over the signature of the member-secretary or any other officer duly authorised by him in that behalf . . .”
18. A careful reading of the afore - extracted provisions reveals thus: Cognizance of a complaint for refraction or violation of the provisions of the Act is capable of being taken by a Court not inferior to that of the Presidency Magistrate or a Magistrate of the first class either on a complaint made by the Board or a complaint made with the previous sanction, in writing, of the Board. The phraseology “made by, or the previous sanction, in writing, of the State Board” as found engrafted in the said section, throws flood of light as to the requirement of sanction for the launching of prosecution under the Act. The distinctive word ‘or’ preceded by a comma, suggests that if the complaint is made by the Board, no previous sanction in writing of the Board is necessary and only in case a complaint is lodged by one, other than the Board, the previous sanction in writing of the State Board is necessary.
19. In consonance with such as statutory provision for the laying of the complaint by the Board, specific provision had been made in sub-rules (1) and (3) of Rule 16 of the Rules. The Board being a statutory body, not having the ears, eyes and mouth, as a human - being, has to function through a human being entrusted with the discharge of the functions of the Board. It is in projection of this view, the engrafted provision in sub-rule (1) of the said Rule 16 provides that the member-secretary shall be chief executive officer of the Board and shall be responsible for the day-to-day and orderly functioning of the office of the Board and shall have all powers necessary therefore.
20. Sub-rule (3) thereof further provides that all orders and instructions of the Board shall be over the signature of the member-secretary or any other officer duly authorised by him in that behalf.
21. In the case on hand, admittedly there is a resolution by the Board sanctioning prosecution against the petitioners for the alleged violation of the provisions of the Act committed by them. It is only to give effect to such a resolution, the complainant, namely, Thiru. G. Rangasamy, Member - Secretary, in-charge of the Board lodged the complaint, which cannot at all be stated to be not in accord with the provisions, as reflected by sub-section (1) of Sec. 49 of the Act and sub-rules (1) and (3) of Rule 16 of the Rules. No doubt true it is that the member - secretary of the Board is being represented by Thiru. K. Renganathan, Regional Officer of the Board and such representation cannot at all be stated to be not in tune with the afore-extracted provisions. Therefore, this submission bristles next to nothing.
22. The second submission hinging on the question of the result of the analysis of the sample being an inadmissible piece of evidence may now fall for consideration in the arena of discussion. Sec. 21 of the Act deals with the power to take samples of effluents and procedure to be followed in connection therewith, Sub-section (1) of the said section prescribes: “A State Board or any officer empowered by it in this behalf shall have power to take for the purpose of analysis samples of water from any stream or well or samples of any sewage or trade effluent which is passing from any plant or vessel or from or over any place into any such stream or well”.
23. Sub-section (2) provides.
“The result of any analysis of a sample of any sewage or trade effluent taken under sub-section (1) shall not be admissible in evidence in any legal proceeding unless the provisions of sub-sections (3), (4) and (5) are complied with”.
To put it otherwise, result of any analysis of a sample shall become inadmissible in evidence only when the provisions of sub-sections (3) to (5) are not complied with and not otherwise.
24. Sub-section (3) deals with the procedure of taking sample, such as intimation of intention of taking of sample for analysis to the occupier or any agent of such occupier, division of the samples into two parts and putting such divided samples into receptacles, sending samples to the laboratory established or recognised by the Central Board either under Sec. 16 or by the State Board under Sec. 17, depending upon the area, where the sample is taken and such allied matters.
25. Sub-section (4) deals with the procedure to be complied with by the person taking the sample, in the case of willful absence of the occupier or his agent at the time of taking of the sample.
26. Sub-section (5) catalogues the procedure to be adopted in the case of no request emerging from either the occupier or the agent for the division of the samples into two parts, as provided in clause (b) of sub-section (3).
27. In the case on hand, admissibility of the result of the analysis of the sample parts is not at all admittedly attacked for the non-compliance of any of the provisions adumbrated under sub-sections (3) to (5) of Sec. 21. But the scathing attack proceeds on a different footing. The person taking the sample was not at all authorised to take the sample and therefore, it is, it is said, that the report of the Analyst is an inadmissible piece of evidence. This bone of contention cannot be expected to get the seal of approval of this Court, in the facts and circumstances of the case. The person, who took the sample admittedly in this case is a Regional Officer of the Board. Originally the Board by its Order D.P (Ms) No. 4, dated 21 Jan., 83, passed on order empowering the following Officers to take samples:
1. Chairman
2. Member - Secretary
3. Board Engineer
4. Environmental Engineer
5. Assistant Environmental Engineer
6. Junior Environmental Engineer
7. Board Analyst
Subsequently, the Board by its order in D.P.Ms No. 56 dated 24 Oct., 84 changed the nomenclature of the posts of the Assistant Environmental Engineer and Junior Environmental Engineer as ‘Regional Officer’ and ‘Deputy Regional Officer.’ By virtue of such change in nomenclature and redesignation, it cannot be stated that the Regional Officer, (previously known as Assistant Environmental Engineer) who had taken the samples in the instant case, is not empowered to take samples. This submission as such is of little substance and has no merit.
28. Let the next bone of contention that the alleged violation of the consent order cannot at all be stated to be a violation of the provisions of Sec. 26, punishable under Sec. 44 of the Act, be delved deep for consideration. The Act is a recent Pollution Control Legislation. The objectivity of such a Legislation is to secure a more environmentally congenial and pollution-free surrounding and this fact requires the personnel in charge of implementation of various provisions of such a Legislation to function with a great degree of pragmatism and understanding of the ground situation, and to display a deft touch. The industries of different hues and colour and perception, came into existence long before the Act. Therefore, the Act enacted certain provisions with a view to prevent and control pollution of existing industries as well as the industries emerging in the future.
29. Sec. 25 is applicable to industries, which are to come into existence, so to say, new industries and it prescribes restrictions on new outlets and new discharges to be made by such industries. Sub-section (1) provides, “Subject to the provisions of this section 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 or bain to make any new discharge of sewage or trade effluent into a stream or well.
30. Sub-section (2) provides, “An application for consent of the State Board under sub-section (1) shall be made in the prescribed form and shall contain particulars regarding the proposed construction, installation or operation of the industrial or commercial establishment or of any treatment and disposal system or of any extension or addition there to and such other particulars as may be prescribed.”
31. Sub-section (3) provides “The State Board may make such inquiry as it may deem fit in respect of the application for consent referred to in sub-section (1) and in making any such inquiry shall follow such procedure as may be prescribed”.
32. Sub-section (4) prescribes”:
“The State Board may grant its consent referred to in sub-section (1), subject to such conditions as it may impose, being —
(a) in the case of a new or altered outlet, conditions as to the point of discharge into the stream or wall or the construction of the outlet, or as to the use of that outlet or any other outlet for sewage or trade effluent from the same land or premises; and
(b) in the case of new discharge, conditions as to the nature and composition, temperature, volume or rate of discharge of the effluent from the land or premises from which the new discharge is to be made, and any such conditions imposed shah be binding on any person using the outlet, or discharging the effluent from the land or premises aforesaid”.
33. Sec. 26 is applicable to existing industries and it makes provision regarding existing discharge of sewage or trade effluent. It prescribes:
“Where immediately before the commencement of this Act any person was discharging any sewage or trade effluent into a stream or well, the provisions of Sec. 25 shall, so far as may be, apply in relation to such person, as they apply in relation to the person referred to in that section subject to the modification that the application for consent to be made under sub-section (2) of that section shall be made within a period of three months of the constitution of the State Board”.
34. Violation of the provisions of either Sec. 25 or Sec. 26 is made punishable under Sec. 44 and it provides thus:
“44. Penalty for Contravention of Section 25 or Section 26: Whoever contravenes the provisions of Sec. 25 or Sec. 26 shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to six years and with fine”.
35. Section 45-A had been introduced into this Act by the Amending Act 53 of 1988, which came into force on 3rd October, 1988 and it makes provision for penalty for contravention of certain provisions of this Act. It reads thus:
“45-A. Penalty for Contravention of Certain Provisions of the Act :— Whoever contravenes any of the provisions of this Act or fails to comply with any order or direction given under this Act, for which no penalty has been elsewhere provided in this Act, shall be punishable with imprisonment which may extend to three months or with fine which may extend to ten thousand rupees or with both, and in the case of a continuing contravention or failure, with an additional fine which may extend to five thousand rupees for every day during which such contravention or failure continues after conviction for the first such contravention or failure”.
36. From a cursory perusal of the provisions adumbrated under Section 45-A, as extracted above, it is rather crystal clear that contravention of the provisions of this Act or failure to comply with any order or direction given under this Act, for which no penalty has been elsewhere provided in this Act, alone in punishable. To put it otherwise, contravention of the provisions of this Act or failure to comply with any order or direction given under this Act, for which penalty had been provided elsewhere under this Acts is not punishable under this provision.
37. Under Section 325 of the Act conditions precedent are impossible by the Board in respect of the industries, which are to come into existence while under Section 26, which relates to industries, which had already come into existence, condition subsequent to be complied with within the time-frame are impossible by the Board and any violation of the condition so imposed by each consent order must, in the eye of law, be construed as violation of the provisions adumbrated under Section 25 and 26 punishable under section 44 of the Act.
38. In the instant case, the allegations in the complaint reveal that the consent was issued by the Board in its proceedings No. T1.TNPC-Bd/30399/82-3 dated 2.1.1984 subject to the condition that all units of treatment plant already contemplated or required to be contemplated to achieve the quality of effluent according to the tolerance limits proscribed by the Board should be complied with within three months thereafter. So many inspections of the industry took place within the stipulated period of three months and even subsequently and the industry was advised to take proper measures to achieve the quality of affluent according to tolerance limits proscribed by the Board. After giving such adequacy of opportunity, the industry was inspected on 21.9.1984 by the Regional Officer (then known as Assistant Environment Engineer) and a sample of treated trade effluent was collected in the presence of the officials of the industry and sent for analysis and the result of the analysis revealed that the trade affluent did not at all satisfy the standards prescribed by the Board. In such state of affairs, it cannot be stated that there are no prima facie materials to come to the conclusion that there was violation of the condition of the consent order given by the Board in its proceedings dated 2.1.1984 which in turn is a violation or refraction of the provisions of Section 26, thereby punishable under Section 44 of the Act. For the sake of emphasis, it may again be reiterated that the salutary provisions adumbrated under Section 45-A of the Amending Act 53 of 1988 are attractable only in situations, where there are violations of the provisions of the Act or failure to comply with any of the directions issued by the Board, for which no specific provision is available for punishment. In this view of the matter, there is little merit in this submission also.
39. The fourth and the last bore of contention is relatable to Thiru T.G Krishnamoorthy, the Managing Director alone and according to learned counsel for the petitioners, in the absence of any allegation in the complaint as to his having been in charge of the responsible to the mills for the conduct of its business, the criminal proceedings an initiated against him are liable to be quashed. Even such a submission cannot carry conviction either on facts or on law, in the facts and circumstances of the case. Except stating that he is the Managing Director, of course true it is, no specific allegations are available in the complaint as to his having been in charge of and responsible to the mills for the conduct of its business. The phraseology “Managing Director” by itself would connote and convey the idea of his having been in charge of and responsible to the construed as a person in charge of and responsible to the conduct of the affairs of the mills, then by virtue of the provisions adumbrated under sub-section (1) of Section 47 of the Act, it is possible to presume that he is guilty of the offence and shall be liable to be proceeded against and punished accordingly. Such a presumption is however rebuttable and this aspect of the matter is made crystal clear by the proviso appended to the maid sub-section, 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.
40. Even assuming that he is not in charge of and responsible to the conduct of the affairs of the mills, it cannot be stated that he is not prosecutable for the offences committed by the company, on the face of the sanguine provisions adumbrated under sub-section (2), which prescribes,
“Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company such director manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to proceeded against and punished accordingly”.
41. The said sub-section starts with the non-obstante clause by the incorporation of the following phraseology, namely, ‘Notwithstanding anything contained in sub-section (1) ‘. This non-obstante clause has to be given its due meaning in the context in which it is used. This non-obstante clause makes it plausible to give interpretation in a pragmatic way to provisions adumbrated in sub-sections (1) and (2) of the said section. Under sub-section (1), the personnel in charge of and responsible to the company for the conduct of the affairs of the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly and such person charged of an offence can rebut such presumption by proving that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
42. Under sub-section (2), it is legitimately permissible to prosecute even persons, who were not stated to be in charge of and responsible to the company for the conduct of its business, if it is proved that the offence has been committed with the consent or connivance of or attributable to the neglect on the part of any of those persons prosecuted. To put it otherwise, in case of prosecutions of persons under sub-section (2), presumption of their guilt cannot at all be inferred by virtue of their positions in the company as in the case of presumption to be drawn in the case of personnel, who had been in charge of and responsible to the affairs of the company for the conduct of its business. The question of proof for the involvement of persons in the offences committed by the company would be expected to come only during the course of trial and even in the case of persons, prosecuted under sub-section (2), a deeming provision had been incorporated, therein in a limited way, in the sense of such of these persons deeming to be guilty of the offence committed by the company.
43. The crux of the appreciable difference between the provisions adumbrated under sub-sections (1) and (2) bristles to theses: Under sub-section (1), the burden is on the person charged of the offence to rebut the presumption invoked against him while under sub-section (2), the burden of proof never shifts and it is always on the prosecution to prove, by placing proper evidence before Court, that the person charged had been guilty of the offence. This sort of interpretation alone, I feel, will tend to give sense to the statutory provisions to achieve the purpose for which the same had been enacted. As such, there is no merit in this bone of contention also.
44. In view of what has been stated above, it goes without saying that both the revision and Crl.O.P No. 13211 of 1991 deserve to be dismissed and are accordingly dismissed.
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