JUDGMENT

Dr. Arijit Pasayat, J. —

1.Challenge in this appeal is to the judgment of a learned Single Judge of the Gujarat High Court allowing the Revision Petition filed by the respondents 1 and 2.

2.A complaint under Sections 24, 25, 43, 44 and 47 of the Water (Prevention and Control of Pollution) Act, 1974 (in short the ‘Act’) was filed by the Assistant Environmental Engineer on behalf of the Gujarat Pollution Control Board (in short the ‘Board’) against a private limited company i.e. M/s Nicosulf Industries & Exports Private Limited-respondent no.1 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 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 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 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 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 accordingly filed.

3.The learned Magistrate convicted all the four accused 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 no authority to file the complaint. Hence, the entire prosecution 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 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 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 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 that Shri Dalauti had no 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(i)(a) of the Act, the High Court held that the complaint had 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.

8.In support of the appeal, learned counsel for the appellant submitted that prior to amendment the expression used was “previous sanction of the