M/s Delhi Bottling Co. Pvt. Ltd. v Central Board for the Prevention and Control of Water Pollution (1986)

Every other case in this set is about how far the law reaches. This one is about how easily an enforcement action is lost when the procedure for taking a sample is not followed — and it is therefore the most practically useful case in Module 3.

The point is short and absolute: the analysis of an effluent sample is inadmissible in any legal proceeding under the Water Act unless the sampling procedure in s. 21 has been complied with. A Board that skips the division of the sample loses its case, however polluting the effluent may in fact be.

Chapter 7 sets out s. 21 in detail. This case is the authority for reading it as mandatory and as generally applicable.

M/s Delhi Bottling Co. Pvt. Ltd. made soft drinks — the judgment names "Gold Spot, Limca, Thums Up, Rimzim and Soda Water" — at premises on Shivaji Marg, New Delhi. It discharged trade effluent "which ultimately fall in the stream i.e. river Yamuna". The second petitioner was the plant manager.

The Company "duly obtained consent order under the provisions of Ss. 25 and 26" of the Act, renewed on 26 November 1981.

The Central Board filed a complaint under s. 33(1), alleging that the Company "has neither put up the treatment plant nor has started any preliminary step in that regard", and that a sample of its trade effluent lifted by the Board's officials "in the presence of Mr. D.L. Khosla, a representative of the Company" was on analysis "found as not conforming to the parameters of the consent order". The Board asked that the Company be restrained from causing pollution until it set up the treatment plant and conformed to the consent parameters.

The Metropolitan Magistrate accepted the application and by order of 8 August 1984 restrained the petitioners "from causing pollution of the stream by discharging the trade effluents till the required treatment plant is set up" and until the effluent conformed to the standards in the consent order. The Company moved the High Court under s. 482 CrPC.

(The complaint recites the sample as lifted on 16 May 1984; the discussion of Form 12 refers to 6 May 1984. The discrepancy is in the report and is not material to the reasoning.)

Two questions, and the first is the important one.

1. Does s. 21 apply to a sample lifted for the purpose of an application under s. 33?
2. Was the Magistrate right to excuse the division of the sample on the footing that no representative of the Company was present?

The Board argued that "for passing an order under S. 33 of the Act there is no need that the samples of the effluents must be lifted from the factory premises and got analysed as per the provisions of S. 21 of the Act", so that it was not necessary to divide the sample into two parts or to have it analysed by the laboratory established by the Delhi Administration under s. 21(4). The reasoning offered was that s. 33 allows a sample on a ground other than actual or apprehended pollution, while s. 21 is confined to samples taken where the stream is or is likely to be polluted.

Held: no. "The Scheme of the Act shows that S. 21 is a" "provision of general application governing the matter of lifting of samples in all cases including the cases for the purpose of obtaining an order under S. 33 of the Act."

The reasoning has three steps, and they should be reproduced in that order:

1. The heading of s. 21 is "Powers to take samples of effluents and procedure to be followed in connection therewith." Section 21(1) confers power on the State Board and its officers to take samples of water from any stream or well, or of any sewage or trade effluent "which is passing from any plant or vessel or from or over any place into any such stream or well".
2. Section 21(2) provides that the result of any analysis of a sample taken under sub-section (1) "shall not be admissible in evidence in any legal proceedings unless the provisions of sub-ss. (3), (4) and (5) are complied with". And "The proceedings under S. 33 of the Act are obviously legal proceedings under the Act." Therefore "the sample must be lifted in accordance with the provisions of S. 21 of the Act when only its analysis could be admissible in evidence in the proceedings under S. 33".
3. The structure of the Act confirms it. "Ss. 32 and 33 are the only two provisions of the Act where under samples may be lifted by the Board. Whereas S. 32 provides for emergent cases, S. 33 is the normal provision empowering the Board to make applications to courts for restraining apprehended pollution of water in streams or wells." To say that s. 21 does not apply to the normal provision "is wholly fallacious".

The Magistrate had held that because no one appeared on the Company's behalf when the sample was taken, the question of dividing it did not arise. The High Court held that "this conclusion of the learned Magistrate is wholly erroneous", on two grounds.

First, the pleadings. The petitioners had stated in terms "that the sample was not divided by the officials of the Board into two parts and no part thereof was given to the Company's representative in spite of his request in that behalf". The Board's rejoinder "did not controvert these allegations" and did not reply parawise; no affidavits were filed. "In such a situation the aforesaid allegations of the petitioners had to be taken as not controverted and thus admitted."

Second, the document. The petitioners produced a copy of Form No. 12 bearing at its foot a receipt signed by D.L. Khosla on the date the sample was lifted, "given by Shri Khosla in token of the Board's having delivered a copy of Form 12 to him who was the agent of the petitioners present before the officials". So the representative was present, and on the pleadings it had to be taken "that a demand was also made by the said representative to the officials of the Board to divide the sample into two parts and to get the same analysed in accordance with S. 21(5) of the Act, but that request was not acceded to".

The holding: "the officials of the Board were not justified in getting the sample analysed from a laboratory only recognised by the Board instead of getting the same analysed from the laboratory of the Delhi Administration and without complying with the requirements of sub-s. (5) of S. 21 of the Act." Consequently "the conclusion that the petitioners were discharging effluents in the stream which were likely to cause pollution is not sustainable", and the impugned order was set aside.

The Magistrate had also relied on the Company's failure to erect a treatment plant under clause 5 of the consent order. The High Court refused to read the restraint order as a direction to build a plant:

"We cannot read in between the order that a direction has been given to the petitioners to erect a treatment plant. Such a direction is also perhaps not envisaged by the provisions of S. 33(1) of the Act. S. 33(1) only provides for the passing of a restraint order by the court against the Company for ensuring the stoppage of apprehended pollution of water in the stream in which the trade effluents of the Company are discharged."

But the failure is not without a remedy. "For the non-erection of the treatment plant the Board has the power to launch prosecution against the defaulting Company under the provisions of S. 41 of the Act."

This is the point examiners test: s. 33 gives an injunction, not a mandatory building order; the sanction for breach of a consent condition is prosecution, and, since 1988, the Board's own power of closure and disconnection under s. 33-A.

1. Section 21 is a provision of general application. Any sample taken by a Board, including one taken for an application under s. 33, must be taken in accordance with it.
2. By s. 21(2), the analysis of a sample is inadmissible in any legal proceeding unless sub-sections (3), (4) and (5) are complied with — notice of intention, division of the sample into two parts on the occupier's demand, and analysis by the recognised laboratory.
3. Where the occupier's representative is present and asks for the sample to be divided, refusal to divide it destroys the evidentiary value of the analysis.
4. An order under s. 33(1) is a restraint order only; it cannot direct the erection of a treatment plant. Non-erection is met by prosecution under s. 41.

The result is uncomfortable: a company whose effluent did not conform to its own consent order escaped a restraint order on a sampling irregularity. That is the price of the safeguard, and the judgment does not pretend otherwise.

The justification is that s. 21 exists precisely because an effluent sample is destroyed by testing. Unless the occupier gets his half and can have it independently analysed, he can never challenge the Board's figure, and a criminal conviction or a restraint order would rest on evidence he had no means of testing. Read that way the case is about fair procedure in a regulatory prosecution, not about indulgence to polluters.

The practical lesson for the Board is equally clear, and it is what makes the case worth teaching: the procedural half of the Water Act matters as much as the substantive half.