Respondent filed a private compliant under Section 200 of

the Cr.P.C. for the offence punishable under Section 37 of the Air

(Prevention and Control of Pollution) Act, 1981, (for short 8Air

Act9) alleging that, the petitioner without obtaining a consent

from the Board was carrying on the crushing operation and

thereby committed the offence punishable under Section 37 of

the Air Act.

2.

The

learned

Magistrate

after

perusal

of

the

complaint and documents produced along with the complaint,

took cognizance of the offence punishable under Section 37 of

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the Air Act against the petitioner-accused. Taking exception to

the same, this petition is filed.

3.

Learned counsel appearing for the petitioner-accused

submits that, in the absence of any material to form an opinion

that the complainant has made a prima facie case to proceed

against the petitioner, the taking of cognizance by the learned

Magistrate is contrary to Sections 190 and 204 of Cr.P.C.

4.

On the other hand, learned counsel appearing for the

respondent submits that the petitioner having continued with the

crushing operation in the absence of a consent by the Board has

committed an offence punishable under Section 37 of the Air Act

and the learned Magistrate has rightly taken cognizance of the

aforesaid offence against the petitioner-accused. He further

submits that the Illustration-B of 106 of Indian Evidence Act,

1872, specifies that the burden of proving that he was not

operating the business of crushing is on the petitioner-accused

and as such, the proceedings cannot be quashed.

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5.

I have considered the submissions made by the

learned counsel appearing for the parties.

6.

Allegation against the petitioner-accused is that he is

carrying on the crushing operation without obtaining a consent

from the Board as specified under Section 21 of the Air Act. The

complaint is filed on the basis of inspection alleged to have been

conducted on 07.01.2013, wherein, it is alleged that, upon

inspection the petitioner-accused was found to be carrying on the

crushing operation and on seeing the Officials, the labourers who

were carrying on the crushing operation ran away by stopping

the machineries.

7.

Section 24(4) of the Air Act specifies that the

provisions of Cr.P.C., so far as may be, apply to any search or

seizure under this Section as they apply to any search or seizure

or seizure made under the authority of a warrant issued under

Section 94 of the said Code.

8.

Section 100(4) of Cr.P.C Specifies that before

making a search, the officer or other person about to make it

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shall call upon two or more independent and respectable

inhabitants of the locality in which the place to be searched is

situate or of any other locality if no such inhabitant of the said

locality is available or is willing to be a witness to the search, to

attend and witness the search and may issue an order in writing

to them or any of them so to do.

9.

Section 100(5) of Cr.P.C. specifies that the search

shall be made in their presence, and a list of all things seized in

the course of such search and of the places in which they are

respectively found shall be prepared by such officer or other

person and signed by such witnesses; but no person witnessing a

search under this section shall be required to attend the Court as

a witness of the search unless specially summoned by it.

10.

In the present case, mahazar has been prepared

alleging that the petitioner was carrying on the crushing

operation in the absence of consent order from the Board and

the labourers who were carrying on the crushing operation on

seeing the officials ran away by stopping the machineries used

for crushing operation. The mahazar is signed by the

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official witnesses and not by independent witnesses as specified

under Section 100(4) of Cr.P.C.

11.

Though the mahazar drawn is contrary to Section

100(4) of Cr.P.C., the same cannot be said to be suffering from

any illegality but utmost can be said to be irregular if seizure