JUDGMENT

Narendra Kumar Johari, J.

Heard learned counsel for the appellant on the application for leave to appeal (Crl. Misc. Application No.4573 of 2001).

2. For the facts and reasons, as stated in the accompanying application/affidavit for leave to appeal as well as in the memo of appeal, the application for leave to appeal is allowed.

3. This Criminal Appeal under Section 378 Cr.P.C. has been filed by the appellants against the judgment and order dated 03.03.2001, passed by learned Judicial Magistrate (Pollution), Lucknow in Case No. 52 of 1993 (U.P. Pollution Control Board, Lucknow v. M/s P.V.K. Distillery, Nandganj, Ghazipur through its Managing Director Sri P.K. Tewari). By the impugned judgment and order, learned trial court has discharged the accused persons Maya Pati Tripathi, Prabodh Kumar Tiwari, Ambrish Pati Tripathi, Vijay Kumar Tewari, G.N. Tiwari and P.K. Srivastava under Section 245 Cr.P.C. for the offence under section 41 (2) of The Water (Prevention and Control of Pollution) Act, 1974.

4. The facts of the case, in short, are that U.P. Pollution Control Board had filed a complaint against opposite parties under section 41 (2) of the Water (Prevention and Control of Pollution) Act, 1974 (in short "the Act of 1974"). It has been stated in the complaint that opposite party No.1 M/s P.V.K. Distillery, Nandganj, Ghazipur has been discharging its polluted trade effluent in the holly river Ganga through Nala and thereby causing continuous pollution on the said stream. The complainant filed an application under Section 33 (1) of the Act, 1974 before the Chief Judicial Magistrate, Ghazipur to restrain the opposite party No.1 from discharging the noxious and polluted material in the river. The Court, after considering the facts and circumstances of the case had passed the order dated 11.04.1986, its operative portion is as under :-

5. In order to check as to whether the industry is complying the order dated 11.06.1986 or not, the site of opposite party No.1 was inspected by the officer of complainant on 04.01.1988. During the investigation, it was found that the industry is discharging its polluted trade effluent into the river Ganga through Nala, without providing adequate lagoons for collecting the effluent into it. The industry has not furnished any information about the deposit. Hence, it can be concluded that 10% of the profit also was not being deposited by the opposite party No.1. On 04.01.1988, the sample of effluent water was also collected by the complainant. According to the analysis report of the material, parameter of the trade effluent of opposite party No.1 are beyond the standard laid on by the complainant/Pollution Control Board and do not conform the standard prescribed. Hence, it was clear that the opposite parties had violated continuously the order of court, which was passed under Section 33 (2) of the Act, 1974, therefore, they are liable for punishment under Section 41 (2) of the Act of 1974. So far as the opposite parties Nos. 2 to 9 are concerned, it has been mentioned in the complaint that they were Incharge of the business of the Company and are responsible for its day to day business and were duty bound to comply the order of the Court.

6. It is pertinent to mention here that in complaint, it has been shown that opposite party No.1 is the Distillery/Company and the opposite parties Nos. 2 to 6 are shown as Directors of the Company, opposite parties No.7, 8 and 9 are the Technical Director, General Manager and Production Manager of the Company.

7. During the proceedings before the trial court, the opposite party Nos. 4, 7 and 8 did not appear despite all the attempt to summon them, therefore, vide order dated 12.07.1999, learned trial court had separated the record of the aforesaid accused persons. Rest of the opposite parties contested the case before the trial court.

8. Learned trial court, after considering the facts, circumstances and evidence on record, discharged the opposite parties Nos.