GUJARAT POLLUTION CONTROL BOARD,THRO'DY.ENVIRONMENT ENGINEER vs STATE OF GUJARAT
- Court
- Gujarat High Court
- Case type
- CRIMINAL APPEAL
- Decided on
- 17-03-2026
R/CR.A/2974/2008 JUDGMENT DATED: 17/03/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2974 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
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Approved for Reporting Yes No
==========================================================
GUJARAT POLLUTION CONTROL BOARD,THRO'DY.ENVIRONMENT
ENGINEER
Versus
STATE OF GUJARAT & ORS.
==========================================================
Appearance:
MS DHARMISHTA RAVAL(707) for the Appellant(s) No. 1
MR JAL UNWALA, SENIOR ADVOCATE WITH NIYATI D CHAUHAN(9082)
WITH MS VALERIE PEREIRA for the Opponent(s)/Respondent(s) No. 2,3,4,5
MS SHRUTI PATHAK, APP for the Opponent(s)/Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 17/03/2026
JUDGMENT
Table of Contents
INTRODUCTION...............................................................................................1
ARGUMENTS OF THE APPELLANT................................................................3
ARGUMENTS OF THE RESPONDENT...........................................................8
ANALYSIS AND FINDINGS............................................................................11
CONCLUSION.................................................................................................22
INTRODUCTION
1. The present Appeal has been filed challenging the Order passed by
the learned Presiding Officer, Fast Track Court No.7, Surat (“ Ld.
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Appellate Court ”) on 30.03.2007 in Criminal Appeal No. 14 of
2003 (“ Impugned Order ”)
2. Originally, the Appellant had filed Criminal Complaint against the
Respondent No. 2 in the Court of Chief Judicial Magistrate, Surat
being Criminal Case No. 3642 of 1987 for violation of Sections 24
and 25 of The Water (Prevention and Control of Pollution) Act,
1974 (“ Water Act ”) which was punishable under Sections 43 and
44 read with Section 47 of the Water Act.
3. The learned Chief Judicial Magistrate, Surat (“ Ld. Trial Court ”) by
Judgment and Order dated 31.3.2003, convicted the Respondent
Nos. 2 to 4 for one year and six months and also imposed fine of Rs.
50,000/- upon each of the accused for breach of Sections 23 and 24
of the Water Act.
4. By way of the Impugned Order, the Ld. Appellate Court allowed the
Appeal filed by the Respondent under Section 394 of the Code of
Criminal Procedure, 1973 (“ the Code ”) challenging the order of
sentence and fine imposed by the Ld. Chief Judicial Magistrate,
Surat in Criminal Case No. 3642 of 1987.
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5. Hence the present Appeal by the Appellant challenging the
Impugned Order.
6. Heard learned advocates for the parties.
ARGUMENTS OF THE APPELLANT
7. The learned Advocate appearing for the Appellant has principally
contended that the Ld. Appellate Court has not properly considered
the legal position arising from Section 49 of the Water Act read in
conjunction with Section 11A of the Water Act. It is submitted that
the statutory scheme empowers the Pollution Control Board to
accord sanction for prosecution under the Water Act. In the present
case, such sanction was granted by the Chairman of the Board
pursuant to the resolution dated 27.11.1984, and the sanction order
issued on that basis is fully in conformity with the requirements of
Section 49 read with Section 11A of the Water Act.
8. It was also argued that on a careful examination of the entire matter,
it transpires that the Complaint [Exhibit 1] specifically states that the
Accused has committed offence which contravenes the provisions of
Section 25 and Section 26 of the Water Act and such an offence
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shall be punishable with imprisonment for a term which shall not be
less than one year and six months, which may extend to six years
and with fine.
9. Ld. Advocate for the Appellant has submitted that the Complaint in
the present case is dated 21.12.1987. It is an admitted position that,
by way of a sanction Order, the Deputy Environment Engineer of
the Regional Office at Surat was authorised to file the necessary
Complaint and to make an appropriate Application before the Court.
The said sanction Order has been produced on record at Exh.17.
10. It has been further submitted that the Respondents had filed an
Application seeking consent under the Water Act for discharge of
effluents. The said consent was initially granted on 31.01.1986.
However, the same was thereafter rejected by the Appellant on
18.03.1986. The rejection was on the ground that the Respondents
had created an outlet without obtaining prior consent of the
Appellant. The said fact was communicated to the Respondents
through Registered Post A.D., and the acknowledgment thereof has
been produced on record at Exh.19.
11. Ld. Advocate has further pointed out that the Appellant had issued a
notice of entry and inspection dated 01.08.1986, which is produced
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at Exh.20. Thereafter, a notice of intention for collection and
analysis of samples was also issued to the Respondents, which is
produced at Exh.21. The inspection report prepared under Section 23
of the Water Act has been produced at Exh.22.
12. It has been submitted that the samples collected under Section 21(3)
of the Water Act were forwarded to the Board Analyst on
01.08.1986, and the said communication has been produced at
Exh.23. The Respondents were thereafter informed about the same
through a communication dated 19.11.1986, which has been
produced at Exh.24.
13. Ld. Advocate has further submitted that the State Board Analyst,
GPCB, Surat, by communication dated 01.10.1986 produced at
Exh.25, certified that the samples were received on 01.08.1986 in
three sealed containers. The analysis report prepared by the State
Board Analyst has been produced at Exh.26. Thereafter, upon filing
of the Complaint, the charge came to be framed against the
Respondents, which is produced at Exh.27.
14. The Appellant has also placed on record the evidence of Dr.
Rajnikant Jethalal Dalwadi, examined as P.W.2 at Exh.45, who was
serving as the Senior Scientific Officer. In his deposition, he has
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stated that he had received three containers containing samples,
namely one container of 2½ litres, the second container of one litre
and the third container of 300 ml.
15. In his cross-examination, the said witness has also stated that he is
not aware of the time at which the said samples were received. He
has further stated that he is not aware as to on which particular date
the tests were conducted by him. The witness has reiterated that he
had received three containers, one of 2½ litres, the second of one
litre and the third of 300 ml in glass bottles. He has further stated
that the containers containing one litre and 300 ml did not together
contain 3 litres of water.
16. The witness has also stated in his cross-examination that, at the time
of collection of samples, he had not stated that three containers of 3
litres each were required.
17. The prosecution has also examined Vijay Rambhai Gadge as P.W.1
at Exh.14. In his deposition, he has admitted that the Application
seeking consent for discharge of effluents was rejected on
18.03.1986.
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18. Ld. Advocate for the Appellant has lastly submitted that the samples
in the present case were collected in accordance with Section 21 of
the Act and, therefore, there was no requirement to collect the
samples in the manner prescribed under Rule 27 of the Rules. It has
been further contended that the accused had not obtained any No
Objection Certificate from the Pollution Control Board. It is also
submitted that the water outlet of the factory belonging to the
accused was illegal and, at the time of inspection, no primary or
secondary treatment facility was found in the factory.
19. It has been argued that due to such discharge of pollutants, the
surrounding land near the factory had been adversely affected,
thereby constituting an offence. In such circumstances, the Ld. First
Appellate Court ought not to have quashed and set aside the Order
passed by the Ld. Chief Judicial Magistrate, as the same was just,
proper and did not warrant any interference.
20. It has therefore been submitted that the present Appeal deserves to
be allowed and the impugned judgment and Order passed by the Ld.
First Appellate Court is required to be quashed and set aside by
upholding the judgment and Order passed by the Ld. Chief Judicial
Magistrate.
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ARGUMENTS OF THE RESPONDENT
21. Per contra, Ld. Senior Advocate Mr. Jal Unwala, appearing for and
on behalf of Ld. Advocate Ms. Niyati Chauhan for Respondent Nos.
2 to 4, has mainly submitted that the samples in the present case
were not collected in accordance with the provisions of Section 21
of the Water Act. Ld. Senior Advocate has argued that the samples
were required to be collected in the presence of the employer or his
agent and thereafter the same were required to be divided into two
parts. From the evidence placed on record by the Appellant, it is
evident that the said samples were not divided into two parts.
22. It has been further argued that as per Section 21(d) of the Water Act,
one container of the sample is required to be sent to a laboratory
established or recognised by the Central Board under Section 16 of
the Water Act. Further, upon a request made by the occupier or his
agent, the second container is required to be sent to the laboratory
established or specified under sub-section (1) of Section 52 of the
Water Act. However, in the present case, the samples were not taken
in two containers. Consequently, the question of seeking any request
from the occupier or his agent for sending the second container to
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the laboratory established or specified under Section 52(1) of the
Water Act did not arise. It is therefore submitted that the procedure
adopted by the Appellant is contrary to the provisions of the Water
Act.
23. Ld. Senior Counsel has further relied upon the Rules framed under
The Gujarat Water (Prevention and Control of Pollution) Rules,
1976 (hereinafter referred to as the “Water Rules”). Particular
reliance has been placed upon Rule 27, which prescribes the manner
in which samples are required to be submitted for analysis to the
State Water Laboratory. As per the said Rule, the samples are
required to be collected preferably in a polythene container and must
be properly labelled indicating the date and time of collection as
well as the method of preservation used.
24. It has also been specified in sub-rule (b) of Rule 27 that at least 2.5
litres of the material required for analysis must be sent in a container
having a capacity of not less than 3 litres and not more than 5 litres.
In the present case, as per the oral evidence of the Analyst examined
at Exh.45, it has been categorically stated that he had received three
containers, namely one containing 2½ litres, the second containing
one litre and the third containing 300 ml in glass bottles. It has
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therefore been submitted that even on this count, the samples were
not collected in accordance with the provisions of law.
25. Moreover, Ld. Senior Advocate has further submitted that the
Complainant, in paragraph 5 of the Complaint, has specifically
alleged commission of an offence under Section 44 of the Water Act
by the Respondents. It has been argued that even as per the case put
forth by the Appellant, no offence under Section 47 of the Water Act
has been attributed to the Respondents. It has been further contended
that the Complainant has not provided any particulars regarding the
liability of Respondent Nos. 2 to 4, who are stated to be the
Directors of Respondent No. 1 Company.
26. Ld. Senior Advocate has therefore submitted that no specific
allegation has been made in the Complaint and the Appellant has
also failed to establish that the said Directors had personally acted in
a manner so as to directly connect their conduct with the alleged
liability of the Company. In absence of any such averments or
material, the Directors cannot be held liable. It has therefore been
contended that the present Appeal deserves to be dismissed as no
liability can be fastened upon the Directors of Respondent No. 1.
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27. Ld. Senior Advocate has placed reliance upon the judgment in
Sanjay Dutt and Others v. State of Haryana and Another , reported in
2025 SCC Online SC 32. By referring to the said decision, it has
been argued that where the Complaint does not contain sufficient
averments regarding the direct involvement of the Directors of the
Company, the proceedings cannot be sustained. It has been
submitted that in the said case, the Complaint came to be quashed on
the ground that no specific role or involvement of the Directors was
alleged
ANALYSIS AND FINDINGS
28. Heard the Ld. Advocates for the respective parties.
29. Before dealing with the respective contentions on merits, a perusal
of the relevant statutory provisions governing the present issue is
required.
30. Section 21 of the Water Act reads as follows:
“21. Power to take samples of effluents and procedure to be
followed in connection therewith - (1) 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
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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.
(2) 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.
(3) Subject to the provisions of sub-sections (4) and (5), when
a sample (composite or otherwise as may be warranted by
the process used) of any sewage or trade effluent is taken for
analysis under sub-section (1), the person taking the sample
shall -
(a) serve on the person in charge of, or having control
over, the plant or vessel or in occupation of the place
(which person is hereinafter referred to as the occupier)
or any agent of such occupier, a notice, then and there
in such form as may be prescribed of his intention to
have it so analyzed;
(b) in the presence of the occupier or his agent, divide
the sample into two parts;
(c) cause each part to be placed in a container which
shall be marked and sealed and shall also be signed
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both by the person taking the sample and the occupier
or his agent;
(d) send one container forthwith, -
(i) in a case where such sample is taken from
any area situated in a Union territory, to the
laboratory established or recognized by the
Central Board under section 16; and
(ii) in any other case, to the laboratory
established or recognized by the State Board
under section 17;
(e) on the request of the occupier or his agent, send the
second container, -
(i) in a case where such sample is taken from
any area situated in a Union territory, to the
laboratory established or specified under
sub- section (1) of section 51; and
(ii) in any other case, to the laboratory
established or specified under sub-section
(1) of section 52.
(4) When a sample of any sewage or trade affluent is taken
for analysis under sub-section (1) and the person taking the
sample serves on the occupier or his agent, a notice under
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clause (a) of sub-section (3) and the occupier or his agent
wilfully absents himself, then, -
(a) the sample so taken shall be placed in a container
which shall be marked and sealed and shall also be
signed by the person taking the sample and the same
shall be sent forthwith by such person for analysis to the
laboratory referred to in sub-clause (i) or sub-clause
(ii), as the case may be, of clause (e) of sub-section (3)
and such person shall inform the Government analyst
appointed under sub-section (1) or sub-section (2), as
the case may be, of section 53, in writing about the
wilful absence of the occupier or his agent; and
(b) the cost incurred in getting such sample analyzed
shall be payable by the occupier or his agent and in
case of default of such payment, the same shall be
recoverable from the occupier or his agent, as the case
may be, as an arrear of land revenue or of public
demand: Provided that no such recovery shall be made
unless the occupier or, as the case may be, his agent has
been given a reasonable opportunity of being heard in
the matter.
(5) When a sample of any sewage or trade effluent is taken
for analysis under sub-section (1) and the person taking the
sample serves on the occupier or his agent a notice under
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clause (a) of sub-section (3) and the occupier or his agent
who is present at the time of taking the sample does not make
a request for dividing the sample into two parts as provided
in clause (b) of sub-section (3), then, the sample so taken
shall be placed in a container which shall be marked and
sealed and shall also be signed by the person taking the
sample and the same shall be sent forthwith by such person
for analysis to the laboratory referred to in sub- clause (i) or
sub-clause (ii), as the case may be, of clause (d) of sub-
section (3)."
31. Rule 27 of the Water Rules reads as under:
“Rule 27 : Procedure for submitting samples to State Water
Laboratory
While submitting samples for analysis to the State Water
Laboratory, the following procedure shall be followed:
(a) The sample shall be collected preferably in polythene
container and shall be labelled giving the following details,
namely :-
(i) the source, and nature of sample,
(ii) the date and time of collection.
(iii) the method of preservation used.
(b) At least 2.5 litres of the materials required to be analysed
shall be sent in a container, the capacity of which shall not
be less than 3 litres and not be more than 5 litres.
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(c) The sample shall accompany with the letter from the
concerned authority and shall give the number of parameters
to be analysed.
(d) The sample shall be preferably transported to the
laboratory by a messenger.
(e) The messenger shall take receipt of sample from the
laboratory.
(f) Fees for analyses shall be paid either in advance or at the
time of submission of sample.
(g) The samples shall be preserved as per the instructions
given in IS-2488-1966 and 1968 (Part I, II and III) and IS-
4733-1968.”
32. In the present case, as borne from the record, the samples were
collected in the presence of the agent of the occupier and were
required to be divided into two parts. It is further required that one
container be sent to the laboratory established or recognised by the
State Board under Section 17 of the Water Act. Upon a request made
by the employer or his agent, the second container is required to be
sent to the laboratory established or specified under sub-section (1)
of Section 51 of the Water Act. However, in the present case, the
fact remains that the samples were not taken in two containers.
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33. Moreover, Ld. Advocate for the Appellant has sought to draw the
attention of this Court to Exh.21, wherein the agent of the
Respondents has stated that the trade effluents were not analysed
through a Government Analyst. However, the fact remains that in
the present case the samples were not divided into two parts.
Therefore, the question of sending the second container to the
laboratory established or specified under sub-section (1) of Section
51 of the Water Act could not have arisen.
34. It is also pertinent to note that the Analyst himself has admitted in
his evidence that he had received three containers, namely one
containing 2½ litres, the second containing one litre and the third
containing 300 ml in glass bottles. He has further admitted that the
containers containing one litre and 300 ml together did not contain 3
litres of water. In such circumstances, the prosecution has failed to
establish that the samples were collected in accordance with the
requirements of Section 21 of the Water Act and Rule 27 of the
Water Rules.
35. In matters as the present one, these procedures laid down by the
statute are sacrosanct. They cannot be altered or amended by whim
of any person. The resultant consequence of any such investigation
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can be penal. Therefore, all the more, such procedures are required
to be complied with in full letter and spirit.
36. While highlighting the importance of sanctity of sample collection,
Hon’ble Supreme Court in Gujarat Pollution Control Board v.
Nicosulf Industries & Exports (P) Ltd. , (2009) 2 SCC 171 held as
follows:
18. The appeal can be disposed of on the ground that
factually there is nothing to show that the sample collected
was from the overflown 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 4 has not
been proved. 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 authorisation by the Chairman was on
18.8.1989. In view of the factual aspects highlighted, the
appeal deserves to be dismissed which we direct.”
37. It is well settled that where the statute prescribes a particular
procedure for collection and analysis of samples, the said procedure
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is required to be strictly followed. The safeguards incorporated
under Section 21 of the Water (Prevention and Control of Pollution)
Act are not merely procedural formalities but are intended to ensure
fairness and reliability in the process of sampling and analysis. Any
material deviation from the prescribed procedure would render the
evidentiary value of such samples doubtful. In the present case, as
discussed hereinabove, the prosecution has failed to establish that
the samples were divided into two parts and handled in the manner
contemplated under Section 21 of the Water Act and Rule 27 of the
Water Rules. Consequently, the evidentiary value of the analysis
report becomes doubtful and cannot be accepted.
38. Moreover, if the entire Complaint is taken into consideration, it
appears that except for the statement that Respondent Nos. 2 to 4 are
Directors of Respondent No. 1, no specific allegations have been
made by the Appellant in the Complaint to show that Respondent
Nos. 2 to 4 were directly responsible for the offence in question.
39. In Sanjay Dutt and Ors. (supra) the Hon’ble Apex Court has held as
follows:
11. It appears that the Courts below proceeded on the
erroneous assumption that the three Appellants herein
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being responsible officers of the company are liable for the
alleged offence. While a company may be held liable for
the wrongful acts of its employees, the liability of its
directors is not automatic. It depends on specific
circumstances, particularly the interplay between the
director's personal actions and the company's
responsibilities. A director may be vicariously liable only
if the company itself is liable in the first place and if such
director personally acted in a manner that directly
connects their conduct to the company's liability. Mere
authorization of an act at the behest of the company or the
exercise of a supervisory role over certain actions or
activities of the company is not enough to render a
director vicariously liable. There must exist something to
show that such actions of the director stemmed from their
personal involvement and arose from actions or conduct
falling outside the scope of its routine corporate duties.
Thus, where the company is the offender, vicarious
liability of the Directors cannot be imputed automatically,
in the absence of any statutory provision to this effect.
There has to be a specific act attributed to the director or
any other person allegedly in control and management of
the company, to the effect that such a person was
responsible for the acts committed by or on behalf of the
company.
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40. At the same time, wherever the principle of vicarious liability is
attracted by way of a legal fiction and a person, who is otherwise not
personally involved in the commission of an offence, is sought to be
made liable, the same must be specifically provided for in the
concerned statute. In matters relating to penal provisions, vicarious
liability of a Managing Director or Director would arise only where
the statute expressly provides for such liability.
41. Even where such a provision exists for fastening vicarious liability,
it does not follow that every Director of the Company would
automatically become liable for any contravention of the statute.
Vicarious liability would arise only where there are specific and
substantiated allegations attributing a definite role or conduct to such
Director, sufficient to attract the statutory provisions relating to
vicarious liability and, by extension, the alleged offence itself.
42. It is a cardinal principle of criminal jurisprudence that there can be
no vicarious liability unless the statute specifically provides for the
same. Thus, an individual who has committed an offence on behalf
of a Company may be made an accused only where the statute
provides for such liability and where there is sufficient evidence of
his active role coupled with the requisite criminal intent. The
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primary responsibility lies upon the Complainant to make specific
averments in the Complaint, as required under law, so as to render
the accused vicariously liable. For fastening criminal liability upon
an officer of a Company, there can be no presumption that every
officer of the Company is aware of the transaction in question.
43. In view of the aforesaid position, it was incumbent upon the
Complainant to make specific averments in the Complaint so as to
render Respondent Nos. 2 to 4 vicariously liable. However, the
Appellant Complainant has failed to establish that there was any
personal involvement of Respondent Nos. 2 to 4 in the alleged
offence. The vicarious liability of Respondent Nos. 2 to 4 cannot be
automatically inferred under Section 47 of the Water Act when the
Complaint itself does not contain any allegations regarding their
personal knowledge or involvement.
CONCLUSION
44. In view of the above discussion and for the reasons recorded
hereinabove, the present Criminal Appeal fails and deserves to be
dismissed.
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R/CR.A/2974/2008 JUDGMENT DATED: 17/03/2026
45. Accordingly, the same is dismissed .
46. The Record and Proceedings shall be remitted to the concerned Ld.
Trial Court forthwith.
(SANJEEV J.THAKER,J)
SRILATHA
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