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Improper Hazardous Waste Disposal: The Gujarat High Court Grants Bail To The Director Of A Chemical Company, Stating That The Transporter Is Responsible For Ensuring That The Waste Reaches The Treatment Plant

By Komal Kinger      Mar 22, 2022      0 Comments      1,729 Views

The Hon'ble Gujarat High Court recently granted bail to a chemical company director in relation with the company's hazardous waste material being dumped in a creek, injuring two people.

The company had entered into an arrangement with M/S Sangam in 2016 and 2017 for shipping waste material to the treatment plant in accordance with CPCB Co-processing standards, according to the bench led by Justice Gita Gopi. 

“Sangam was authorised to provide the work of collection, transportation of hazardous waste material to Dalmia Cement Bharat Limited plants at Odisha, Karnataka and Bihar, and the authorisation for transportation of hazardous waste materials was in accordance to CPCB Co-processing guidelines 2016 and 2017, and therefore, it would be the responsibility of the transporter to take waste by-products to its destination. The petitioner company or the petitioner himself would have no knowledge of any misdeed of the transporter. The liability would lie on the company who engages the transporter and it is the duty of the transporter to see that the said waste product reaches plant or to its destination”

The Petitioner, the director of Chemie Organic Chemicals Private Limited ('COCPL'), was thus granted regular bail for alleged offences under Sections 284[1], 120-B[2], 34[3], 277[4] ,336,[5]337,[6]342, [7]465[8], 467,[9] 468,[10] and 471 [11] of the Indian Penal Code , 1860 and Section 15 of the Environment Protection Act , 1986.[12]

FACTS OF THE CASE  

The present petitioner is a director of one company named Chemie Organic Chemicals Private Limited (for short “COCPL”) since 03.11.2003. After sometime in the month of January 2021, M/s. Sangam Enviro Pvt. Ltd. (for short “Sangam”) approached COCPL and informed that it is into business of lifting of co-process material on behalf of cement industries for co-processing purposes. It was also represented that Sangam was lifting 

co-process material with a transboundary manifest process in accordance with Hazardous and other Wastes (Management and Transboundary Movement) Rules, 2016. 

After that COCPL dispatched garbage through Sangam from time to time based on this representation by Sangam. Sangam also stated that, in accordance with CPCB co-processing norms of 2016 and 2017, it has been sending waste material to Dalmia Cement Company from various chemical companies at units in Odisha, Karnataka, and Bihar.

Following that, the Petitioners claimed that on December 23, 2021, the co-processing waste was delivered by tanker and dumped in a creek.

As a result, a FIR was filed, and in February 2022, the Petitioner was arrested.

CONTENTIONS OF PETITIONER 

Mr. Nanavati , Learned senior Counsel on the behalf of petitioner submitted that the petitioner would have no knowledge about the waste material when there was contract of Sangam with Dalmia and it was the responsibility of Dalmia Cement company to ensure that the material sent by the petitioner company reached at the destination, since Sangam was the authorised transporter. 

Also , learned Senior Advocate for the petitioner submitted that, after having knowledge of illegal activities by Sangam, the petitioner had terminated all the contract agreement with effect from 03.01.2022 with Sangam. Thus , In view of the aforesaid facts and circumstances of the case, learned Senior Advocate for the petitioner prayed that the present application may be allowed and the petitioner herein may be released on regular bail.

CONTENTIONS OF RESPONDENT

Learned Assistant Public Prosecutor  Mr.J.K. Shah submitted that, on the instructions of the petitioner, one sided agreement was executed, and false and forged signature of the witnesses  was taken. As per the respondents on January 16 , 2022 the petitioner called Deputy General Manager of Dalmia to inform that Sangam had earlier contacted the company for hazardous waste and for that there would be a police inquiry. Also , the present petitioner had tried to manipulate the investigating process and had instructed Dalmia that the payment was made to Sangam by its company and thereafter it was paid to Dalmia and instructed them to inform the police that there is no final agreement.

The manifest was also discovered on the Gujarat Pollution Control Board website, although it lacked specifics on the tanker and driver, and there was no mention of Sangam. Due to the injuries caused by the discharge of hazardous trash in the creek, bail could not be granted.

The Court stated that it was the responsibility of the transporter to take waste by-products, using the CPCB co-processing standards from 2016 and 2017. In order to address the issue of forgery, it was noted.

“The petitioner company or the petitioner himself would have no knowledge of any misdeed of the transporter. The liability would lie on the company who engages the transporter and it is the duty of the transporter to see that the said waste product reaches plant or to its destination. For the non-bailable offence punishable under Sections 467 and 468 of IPC are concerned, it is not clear on record that which of the document would be a valuable security where there is any allegation of forgery. The agreement which is stated to be forged do have signature of Dalmia which was found in custody of the petitioner company. It therefore does not become clear as to how any such delivery of waste product was done for the purpose of cheating where there are contractual transaction between Dalmia and present petitioner company through Sangam”

 

JUDGMENT  

The Hon’ble Court observed that 

“Thus, taking all these facts into consideration and also the fact that the trial will take its own time to conclude; this Court is of the opinion that the discretion could be exercised in favour of the petitioner to enlarge him on bail”.

“Hence, the present application is allowed. The petitioner  is ordered to be released on regular bail in connection, on executing a personal bond of Rs.15,000/- (Rupees Fifteen Thousand only)"

Case Title: Mayank Jayantbhai Shah S/O Jayant Manharlal Shah Versus State Of Gujarat 

Case No.: R/CR.MA/5267/2022


[1] Section 284 in The Indian Penal Code

284. Negligent conduct with respect to poisonous substance.—Whoever does, with any poisonous substance, any act in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any person, or knowingly or negligently omits to take such order with any poisonous substance in his possession as is sufficient to guard against any probable danger to human life from such poisonous substance, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

 

[2] Section 120B in The Indian Penal Code

1[120B. Punishment of criminal conspiracy.—

(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, 2[imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.]

 

[3] Section 34 in The Indian Penal Code

37 [34. Acts done by several persons in furtherance of common intention.—When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.]

 

[4] Section 277 in The Indian Penal Code

277. Fouling water of public spring or reservoir.—Whoever volun­tarily corrupts or fouls the water of any public spring or reser­voir, so as to render it less fit for the purpose for which it is ordinarily used, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.

 

[5] Section 336 in The Indian Penal Code

336. Act endangering life or personal safety of others.—Whoever does any act so rashly or negligently as to endanger human life or the personal safety of others, shall be punished with impris­onment of either description for a term which may extend to three months, or with fine which may extend to two hundred and fifty rupees, or with both

[6] Section 337 in The Indian Penal Code

37. Causing hurt by act endangering life or personal safety of others.—Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.

 

[7] Section 342 in The Indian Penal Code

342. Punishment for wrongful confinement.—Whoever wrongfully confines any person shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.

 

[8] Section 465 in The Indian Penal Code

465. Punishment for forgery.—Whoever commits forgery shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

 

[9] Section 467 in the Indian Penal Code 

467. Forgery of valuable security, will, etc.—Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

[10] Section 468 in The Indian Penal Code

468. Forgery for purpose of cheating.—Whoever commits forgery, intending that the 1[document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either de­scription for a term which may extend to seven years, and shall also be liable to fine.

 

[11] Section 471 in The Indian Penal Code

471. Using as genuine a forged 1[document or electronic record].—Whoever fraudulently or dishonestly uses as genuine any 1[document or electronic record] which he knows or has reason to believe to be a forged 1[document or electronic record], shall be punished in the same manner as if he had forged such 1[document or electronic record]

 

[12] Section 15 in The Environment (Protection) Act, 1986

15 Penalty for contravention of the provisions of the Act and the rules, orders and directions. —

(1) Whoever fails to comply with or contravenes any of the provisions of this Act, or the rules made or orders or directions issued thereunder, shall, in respect of each such failure or contravention, be punishable with imprisonment for a term which may extend to five years or with fine which may extend to one lakh rupees, or with both, and in case the failure or contravention continues, with additional fine which may extend to five thousand rupees for every day during which such failure or contravention continues after the conviction for the first such failure or contravention.

(2) If the failure or contravention referred to in sub-section (1) continues beyond a period of one year after the date of conviction, the offender shall be punishable with imprisonment for a term which may extend to seven years.

 



Tags:
Gujarat High CourtHazardousChemical CompanyCPCB Justice Gita Gopi Indian Penal Code 1860 Sections 284[1]Indian Penal Code Section 120-B[2]Environment Protection Act 1986[12)OdishaKarnataka Bihar
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