Holding

The Supreme Court held that the sample was not from over‑flowed effluent and thus the alleged breach of condition No.4 was not proved, leading to dismissal of the appeal.

Summary

The Gujarat Pollution Control Board (GPCB) had granted M/s Nicosulf Industries permission to discharge effluent subject to conditions. It alleged a breach of condition No.4 after a water sample taken on 22‑June‑1989 was found non‑conforming, and filed a complaint through an Assistant Environmental Engineer. The trial court convicted the company and its directors under the Water (Prevention and Control of Pollution) Act, 1974; the Gujarat High Court set aside the conviction, holding the complainant lacked authority under Section 49. On appeal, the Supreme Court examined whether the complaint was validly authorized and whether the sample proved an over‑flow breach. It held that the sample was taken from effluent en route to solar‑evaporation pans, not from over‑flowed effluent, and therefore the alleged breach was not established. Consequently, the appeal was dismissed and the conviction remained set aside.

Issues considered

Whether the complaint filed by the Assistant Environmental Engineer was authorized under Section 49 of the Water (Prevention and Control of Pollution) Act, 1974 (pre‑ or post‑amendment).
Whether the water sample taken was from over‑flowed effluent as required to prove breach of condition No.4.
Whether the alleged breach of condition No.4 was proved on the facts.
Whether the directors of the company could be held liable for the offence.
Whether the Board’s delegation of power to its Chairman for sanctioning/authorising prosecution was valid.

Legislation cited

Code of Criminal Procedure, 1973s. 313
Water (Prevention and Control of Pollution) Act, 1974s. 11-A, s. 21, s. 24, s. 25, s. 2(h), s. 43, s. 44, s. 45, s. 49

Subjects

environmental lawwater pollutioneffluent dischargecondition breachsample collectiondirector liabilitydelegation of authoritySection 49

Judgment

[2008] 17 S.C.R. 27

GUJARAT POLLUTION CONTROL BOARD A
\I.
M/S NICOSULF INDUSTRIES & EXPORT PVT. LTD. AND
ORS.
(Criminal Appeal No. 9 of 2002)
B
DECEMBER 4, 2008
[DR. ARIJIT PASAYAT, P. SATHASIVAM AND AFTAB
ALAM, JJ.]

Water (Prevention and Control of Pollution) Act, 1974 - c
ss. 24, 25, 43 and 45 - Conviction under - Allegation of
discharge of· polluted effluent by factory in breach of
conditions imposed - Conviction of Company and its
Directors - Set aside by High Court - On appeal held:
Sample collected for analysis was not from the over-flown D
effluent but of the effluent on the way to solar evaporation
A",.
pans for further treatment - Said effluent would never meet
the prescribed parameters - Thus, alleged breach of the
condition not proved - Order of conviction set aside -
Environmental law. E

Respondent No.1 Company and its co-directors were
producing certain chemicals. During the process of
production they were discharging 10,800 liters of polluted
water every day. Appellant-Gujarat Pollution Control
F
Board had granted them prior permission for discharging
the polluted water imposing certain condition. It is alleged
that the Company violated the conditions imposed.
Appellant collected sample of polluted Water from the
\
industry. On analysis, it did not conform to the prescribed
G
••· standards. The Assistant Environmental Engineer on
behalf of the Pollution Control Board-appellant filed
.,... ~ complaint under the Water (Prevention and Control of
Pollution) Act, 1974 against the respondent No.1 and its
-
"'.
co-directors. The trial court convicted and sentenced
27 H
t

=,
e
28 SUPREME COURT REPORTS [2008] 17 S.C.R.

A them u/ss. 24, 25, 43 and 44 of th.e Act. High Court holding
}.._
that the complainant had no aut~ority to file the complaint
as the complaint was not filed by the Board as defined
u/s 2(h) of the Act and also considering the other aspects,
set aside the order. Hence, the present ·appeal.
B
Dismissing .the appeal, the Court .,

HELD: 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 r
c 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 the condition was not proved. [Para
13)(33-G-H; 34-A]
D
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 9 of 2002.
.Ji.,

From the final Judgment and Order dated 8.8.2001 the
High Court of Gujarat at Ahmedabad in Criminal Revision
E Application No. ~41 of 2001.
,.
Harish N. Salve, Preetesh Kapoor, Pinky K. Enatoli Serna,
Hem'antika Wahi, Rashesh SanjanwaJa, Biridi.J K. Nair, Shamik
Sanjanwala and K.R Sasiprabhu for the appearing parties.
F
The Judgment ofthe Court was delivered by. >-

DR. ARIJIT PASA VAT, J. 1. Challenge in this appeal is 1
to the judgment of a learned Single Judge of the Gujarat High
Court allowing the Revision Petition filed by the respondents 1 •
)
G and 2. ~L-

2. A complaint under Sections 24, 25, 43, 44 and.47 of
the Water (Prevention and Control of Pollution) Act, 1974 (in
.Y
...
short the 'Actfwas filed by the Assistant Envfronmental ~-

H Engineer on behalf of the Gujarat Pollution Control Board (in .
.f
,____
- --1
GUJARAT POLL. CONT. BOARD v. MIS NICOSULF INDUS.
& EXPORT PVT. LTD. AND ORS. [DR. ARIJIT PASAYAT, J.]

short the 'Board') against a private limited company i.e. M/s
Nicosulf Industries & Exports Private Limited-respondent no.1
29

A

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 8
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 c
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
D
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 E
to the prescribed standards. The report of the analyst was given
~
on 8-7-1989. Thereafter, show-cause notice was issued to the
accused persons. A complaint was accor~ingly filed.

.,.. 3. The learned Magistrate convicted all the four accused F
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 G
no authority to file the complaint. Hence, the entire prosecution
-I! ., 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 H

- '
e
30 SUPREME COURT REPORTS [2008] 17 S.C.R.

A 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
B polluted water was collected in breach of the provisions of
Section 21 of the Act.

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
c 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
D that Shri Dalauti had ng 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(1)(a) of the Act, the High Court held that the complaint had
E 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.
F 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,
G the Board delegated to the Chairman the power of sanctioning
prosecution vide Resolution dated 27.3.1984. In exercise of this
power the Chairman sanctioned as well as authorized r
•
H
complainant to file the complaint in the present case by his order
dated 18.8.1989. -
GUJARAT POLL. CONT. BOARD v. MIS NICOSULF INDUS. 31
& EXPORT PVT. LTD. AND ORS. [DR ARIJIT PASAYAT, J.]

9. It is submitted that while considering the validity and/or A
,J 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. B
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
i-
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 c
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
D
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 the matters aforesaid except as provided in
Articles 249 and 250 of the Constitution". It is, therefore, E
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 F
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 G
under that provision and also to such States which have
'<I
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 H
32 SUPREME COURT REPORTS [2oos1 11 s,c.R.
e
A sanction prosecution by the Board was valid and effective. Even
otherwise resolution dated 27.3.1984 clearly establishes that i..
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
B 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 prosecution in favour of the
Chairman can always be read as the power of authorizing
~
prosecution after Section 49 was amended.
c 10. i'he 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
D which deals with power to take samples of effluents and
procedure to be followed in connection therewith.
;J.
l 11. In response, learned counsel for the respondents 1 and
2 submitted that the High Court·h~d clearly recorded that the
E conditions required compliance with the water standards if
water over-flowed from the solar evaporation pans and the
sample taker) 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
F the Water Act. The submission of the prosecution that the water
flows fro~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. '

G 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 .......
H flown and the over flown effluent did not conform to the tolerance

'·-
\--
--.-

GUJARAT POLL. CONT. BOARD v. M/S NICOSULF INDUS. 33
& EXPORT PVT. LTD. AND ORS. [DR. ARIJIT PASAYAT, J.]

limits prescribed. The documents on record clearly establish A
. .t that the company was discharging its effluent into the drain
leading to the solar eva·poration pan i.e. into the solar
evaporation pan. There was nothing to show that any sample
of any over flown effluent ha~ been taken. It is pointed out that
the sample taken on 22.6.1989 is not of over flown effluent, but B
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 c
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 Court proceeded on D
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 lo 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 E
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 yiew is clearly unsustainable for F
-;
the re~son 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 G
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 9ver-
flown effluent. The evidence on record clearly shows that the H
"\
..
34 SUPREME COURT REPORTS [2008] 17 S.C.R.

A - 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. On that ground alone
the appeal deserves to be dismissed. In view of this conclusion
B 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
c deserves to be dismissed which we direct.

N.J. Appeal dismissed.