The decision to prosecute for contravening the provisions of the Act is the power of the State Board alone, and the non-production of the resolution and/or decision of the Board to prosecute the respondents was a material defect, rendering the complaint presented by the member-secretary invalid.

JUDGMENT

1. Heard learned Counsel for the parties.

2. Rule. Rule made returnable forthwith with the consent of the parties. Learned Counsel appearing for the Respondents, waive notice.

3. In a complaint instituted by the member-secretary, of Goa State Pollution Control Board (GSPCB) under Section 200 of Code of Criminal Procedure (Cr.P.C.) read with Section 43 of Air (Prevention and Control of Pollution) Act, 1981, (Act, for short) (complaint for short), learned Judicial Magistrate First Class 'A' Court, Vasco da Gama, 'issued process', against the respondents-accused under Section 21(5)(v) and 31 (A)(i). punishable under Section 37(1) read with Section 39 of the said Act.

4. In revision, the learned Sessions Judge South Goa, quashed and set aside the order 'issue process'. Thus, aggrieved, GSPCB has questioned the correctness of that order in this Petition.

BACKGROUND FACTS :

5. In the case at hand, subject complaint was filed by the member-secretary, consistent with powers delegated, to him by the GSPCB in its' meeting held on 29th June 2016. Complaint states, that the accused no.1 Company, had handled material coal at berth no. 5a and 6a for the year 2012-13 2013-14, 2014-15 and 2015-16, in excess of quantity material, thereby violating the terms and conditions of consent to operate and committed offences under Section 21(5)(v) and 31(A)(i) punishable under Section 37(1) read with Section 39 of the Act of 1981 on verification of complaint. The learned Magistrate issued process on 5th April 2018 against the accused-respondents therein.

6. The respondents-accused, questioned the correctness of the order 'issue process', in revision, wherein they raised two preliminary issues; (i) that, order 'issue process', does not reflect or show application of mind by the learned Magistrate. Much less, it was cryptic and for want of reasons, the order was not sustainable; and (ii) that the powers delegated by the State Board to the member-secretary purported to be under Section 15 read with Section 43 of the said Act, were limited to presenting the complaint. Submission of Respondents was that there is marked difference between, 'Power to Present complaint' and 'Power to file complaint'. Later, power includes power to prosecute or power to decide to prosecute. As against which power to present complaint, is a step to further the decision to prosecute. To put it in other words, according to the Respondents, power to prosecute or decision to prosecute for alleged contravention of the provisions of the Act, are exclusive powers of the board which were neither delegated to the member-secretary nor State Board could delegate such powers to the member-secretary. Therefore, in absence of the decision of the board to prosecute the Companies and its officers, Magistrate could not have issued the process.

7. Insofar as the cognizance of offences committed under the said Act is concerned, Section 43 mandates that no Court shall take cognizance of any offence under this Act except on a complaint made by -

(a) a Board or any officer authorized in this behalf by it; or

(b) any person who has given notice of not less than sixty days, in the manner prescribed, of the alleged offence and of his intention to make a complaint to the Board or officer autorised as aforesaid.

8. Mr. S. S. Kantak, learned Senior Counsel appearing for the Respondents, submitted that the State Board alone, is empowered to take decision, whether to prosecute the company or not, for contravention of provisions of the said Act, and who, at the time of offence, was directly in charge of and was responsible to the company for the conduct of business, as to proceed against him. Mr. Kantak, learned Senior Counsel submitted, that this power of the Board could be read in to clause (f) read with (j) of sub-section (1) of Section 17 of the Act which, empowers the Board to do such things and to perform such other acts as it may think necessary for discharge of its function and generally for the purpose