( 1 ) GUJARAT Pollution Control Board at Gandhinagar has preferred the present appeal through its Law Officer under Sec. 378 (4) of the Code of Criminal procedure, 1973, against the judgment and order of acquittal rendered in Criminal case No. 1193 of 1989 whereby the learned Chief Metropolitan Magistrate, Ahmedabad, under his order dated March 17, 1993, acquitted the respondents-accused of the offences punishable under Secs. 43 and 44 of the Water (Prevention and Control of Pollution) act, 1974, hereinafter referred to as "the said Act".

( 2 ) THE respondent Nos. 2 to 4 are the partners of Divine Intermediates and chemicals, situated at Vatva in Ahmedabad. The respondent-firm has been manufacturing black chemicals in process of which different types of chemicals and water are being used. It is alleged that the respondent-Industry discharged trade effluent without purifying it, in the open gutter of G. I. D. C. , ultimately flowing in the River Khari at village Vinzol and thereby polluting the water of the said river. A complaint was, therefore, lodged against the respondents-accused for the offences under Secs. 43 and 44 of the said Act. It is also the prosecution case that the accused no. 1-firm had applied for the consent under the provisions of the said Act, for discharge of the effluent from its unit, which came to be rejected by the complainant- board under its letter dated February 16, 1987, a copy of which is produced at Exh. 7. On August 4, 1988, the authorised officers of the complainant-Board visited the factory-unit of the accused No. 1 and the accused No. 2, Ashok S. Maharaj, was present at that time. He was served with the notice of entry and inspection under sec. 23 of the said Act, as per Exh. 14. A notice dated August 4, 1988 (Exh. 15)was also served on the accused No. 1 expressing the intention of collection and analysis of the samples under Sec. 21 (3) (b) of the said Act. By Exh. 16 of even date, the accused No. 2 declared that they were not interested in getting samples analysed by Government Analyst.

( 3 ) THE learned Metropolitan Magistrate, having recorded the evidence of the complainant, Dahyabhai Kalubhai Solanki, and P. W. 2, Pradip Kishorsinh Gohil, and on appreciation of the other documentary evidence on record, came to the conclusion, by his imugned judgment, that the complainant had failed to prove its case beyond reasonable doubt and the respondents-accused were orderded to be discharged, for the offences under Secs. 43 and 44 of the said Act. It is against this acquittal order that the complainant has filed this appeal.

( 4 ) MR. B. R. Gupta, learned Advocate appearing for the appellant-Board, vehemently contended that the learned Magistrate has committed error of law in reading and applying Sec. 21 of the said Act. The learned Magistrate has observed that the sample of the said effluent was required to be divided in two parts, as contemplated in clause (b) of sub-sec. (3) of Sec. 21 of the said Act. According to the learned Magistrate, the accused No. 2 expressed his intention for not getting the sample examined by the Government Analyst as per Exh. 16 would not mean that he opted for not dividing the sample in two parts, as is required under Sec. 21 (3) (b) of the said Act. In this connection, Mr. Gupta submitted that sub-sec. (5) of Sec. 21 of the said Act is to be taken notice of, wherein it is provided that when a sample of any sewage or trade effluent is taken for analysis under sub-sec. (1) and the person taking the sample serves on the occupier or his agent a notice under clause (a) of sub-sec. (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-sec. (3), then the sample so taken shall be palced 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 fortwith by such person