The respondent Qasim Ali is the proprietor of Hassan Ice Factory and is facing trial before this Tribunal.
2. Brief facts of the case are that Muhammad Aslam Inspector District Officer (Environment), PW-1, visited the unit 03.07.2013 and prepared the Site Inspection Report Ex-PA. During his visit he found the condition of the unit unsatisfactory, leakage of ammonia gas and water being used was untreated. It was his observation that these factors were causing adverse environmental impacts and it may damage to the health of the consumers and the leakage of NH3 gas may cause E&T diseases therefore necessary action may be taken against the accused/respondent under the law.
3. After giving notices of hearing EPO was issued by PW-2 on 13.11.2013 with following allegations; i. No water purification system has been installed. ii. No mitigation measures have been taken to control and detect Ammonia leakage and waste water. iii. Clean drinking water was not being used for ice making. iv. Sanitary conditions were not satisfactory. v. Machinery and pipes are rusted.
Accused was directed to ensure compliance of the following measures within 30 days; Take measures for use of clean drinking water for the formulation of ice. Install Ammonia leakage detectors to avoid the accidental leakage of ammonia. Replace old rusted pipes and other rusted equipment.
Improve overall sanitary conditions in and around the unit.
4. The Muhammad Aslam Inspector again visited the unit on 26.11.2014 and Compliance status report Ex-PB was prepared by him which is as under; Sr.No.Directions/Order Undertaken i. Take measures for use of clean drinking water for the formation of ice.No mitigation measures have been taken for use of clean water of formulation of ice and nor any analysis report has been provided ii. Install ammonia leakage detectors to avoid the accidental leakage of ammoniaThe ammonia gas leakage detector has been not installed so for. iii. Replace old rusted pipes and other rusted equipmentThe old rusted pipes and equipments have not been replaced. iv. Improve overall sanitary condition in and around the unit.Overall sanitary condition in and around the unit is satisfactory.
5. After this investigation the complaint Ex-PD was filed by PW-3 Mian Ijaz Majeed Deputy Director (L&E).
6. Copies were delivered to the respondent and charge was framed on 05.03.2018 to which the respondent pleaded not guilty and prosecution produced following witnesses; To prove the charge the prosecution has produced the following witnesses; PW-1 Muhammad Aslam Inspector, District Office (Environment) Jhang.
He prepared the SIR Ex-PA and he also visited the unit for checking compliance status report Ex-PB PW-2 Naseem-ur-Rehman Shah presently. Director (Environment) Lahore He issued EPO Ex-PC PW-3 Mian Ijaz Majeed Deputy Director (L&E) Lahore He filed the complaint Ex-PD.
7. The prosecution filed an application for examining Ubaid-urRehman, Field Assistant as his name was inadvertently omitted from the list of witnesses. The application was dismissed by this tribunal through a separate order. Prosecution gave up Muhammad Nawaz District Officer (Environment) Jhang and Miss Haseena Deputy Director (Environment) being un-necessary on 19.04.2018.
8. On 16.05.2018 statement of the accused was recorded under section 342, Cr.P.C. All the incriminating material was put to the accused/respondent and the same was denied. In answer to question No,6 as to why this complaint is filed against him and why PWs deposed against him his reply was under; "EPA in my District used to demand illegal gratification from me. I refused to give them the same and due to this grudge this false complaint is filed against my unit. The water used in unit was also tested from the Health Department Lab and was found fit for drinking. I place attested copies of two reports pertaining to the year 2010 to 2014 and are placed in the file as Ex-DA and Ex-DB."
9. Respondent/accused opted not to produce defence evidence or to appear on oath under section 340(2), Cr.P.C.
10. Tribunal heard the arguments of both sides. Prosecution argued that a proper S.I.R. is on record where the accused has been found using untreated water for making ice in his factory. Leakage of ammonia gas was also observed from his factory and on the basis of this SIR hearing notice was issued to the respondent/accused. After providing opportunity of the hearing he was issued a legitimate EPO on 13.11.2013. The directions given in the EPO are covered under section 6(r) of the PEP Act, 1997 (As amended in 2012). In the presence of SIR, EPO and Non Compliance Report the respondent/accused is guilty of violating section 16 of PEP Act therefore he may be convicted under section 17 of PEP Act, 1997 (As amended in 2012).
11.On the other hand Jamal Abbas Malik learned Defense counsel has submitted written arguments and argued that during site inspection or checking Non Compliance and even before passing of directions in the EPO i,e, take measures for use of clean drinking water for formation of ice, Department did not conduct any Lab Report to find out whether water is according to the standards i,e, PEQS for drinking water and this fact is admitted by PW-1 and PW-2 in their cross- examination. Argued that regarding second direction of EPO as to install Ammonia Leakage Detector there are no notified standards for emissions of ammonia gas and therefore the said direction of the Agency is also without any legal evidence. Submits that the gas is so costly that no one can afford its leakage and there are safety walls installed to avoid any incident and has pointed out certain contradiction in the statement of PWs. Submits that third direction of EPO is about rusted pipes but SIR is silent about this allegation and that the fourth direction as per compliance report has been complied with. Therefore the prosecution has failed to prove the case against the respondent beyond the .shadow of doubt and respondent deserve acquittal.
12.PW-1 Muhammad Aslam Inspector visited the site on 30.07.2013 and prepared the SIR Ex-PA.
On 26.11.2014 he again visited the site to check the compliance of EPO. These two reports are part of file as Ex-PA and Ex-PB respectively. During cross-examination Inspector admitted that he was not accompanied by Lab Analyst. He also submits that water purification system was not installed in the Ice Factory therefore he wrote in his SIR that the water used for formulation of ice was not pure.
The Tribunal asked the following 02 questions to him which are reproduced; Tribunal question Had you observed in SIR that unit was established without obtaining approval from the EPA?
Answer I had not mentioned in my SIR that the unit was established without environmental approval Tribunal Question Had you observed in your SIR that during the process ammonia NH3 leakage was taking place due to oil skipping from compressor and liquid waste was produced during the washing of tankers/bouzers and laboratory waste which contained milk residue, chemicals and acid etc. used in laboratory that is disposed of into the irrigation channel and was polluting the fresh water?
Answer I had not noted down these facts in my SIR however I observed the presence of some drums in the premises.
13 PW-2 Naseem-ur-Rehman Shah Director (Environment) who issued EPO dated 13.11.2013 admitted in cross-examination that there was no Lab Report with SIR and there must be some standards for ammonia gas. In order to ascertain section 11 the limit of hazardous substance must be exceeding the standards of NEQS/PEQS. He did not remember whether in SIR it was mentioned that unit is violating the provisions of section 11 of Punjab Environmental Protection Act, 1997 (as amended in 2012). PW-3 Mian Ijaz Majeed who drafted and filed complaint. He admitted that in portion "A to A" and "B to B" is due to typing mistake.
14. When Inspector visited the unit he recommended that due to use of untreated water and leakage of Ammonia gas it may cause adverse environmental effects on public health as well as safety as defined in section 2(1) of Punjab Environmental Protection Act, 1997 (as amended in 2012).
Pictorial diagram annexed with SIR reveals presence of drums in courtyard. SIR is not supported by any Lab report. Inspector Muhammad Aslam only presumed that water purification is not installed therefore water is not pure. He had mentioned the leakage of ammonia gas. He had not noted down in SIR that the pipes of factory are rusted. EPO issued on 13.11.2013 where it was mentioned that the unit was causing damage due to reasons mentioned above. As per Compliance Status Report forth directions to improve overall sanitary condition in and around unit stood complied with but as far as first direction of EPO i.e water purification system was not installed, no mitigating measures was taken for use of clean water for the formulation of ice and no analysis report was provided at the time. Respondent also had not denied the allegations of not installing ammonia detector. It is the case of respondent that ammonia gas is so costly that no one can afford its leakage. The case of the Agency is that they smell the leakage of ammonia in the factory. Tribunal note with concern that no immediate action was taken by the visiting inspector to control the leakage of the ammonia which has caused serious fatality to human life. It is further observed that such substance are covered under section 14 of the PEP Act, 1997 (as amended in 2012) which is reproduce as under.
"Handling of hazardous substances.---Subject to the provisions of this Act, no person shall generate, collect, consign, transport, treat, dispose of, store, handle or import any hazardous substance except--
(a) under a licence issued by the Federal Agency and in such manner as may be prescribed;"
The EPA has not notified the "prescribed manners" for substance falling under section 14 and no measures have been taken to issue licenses under section 14 of the PEP Act, 1997 (as amended in 2012). In the absence of notified prescribe manners the consideration of the charge of not installing the ammonia detector is not possible therefore it cannot be said that the respondent has failed to comply with this direction of the EPO. Learned defense counsel also placed reliance on 2018 SCM R 772 and 2013 M LD 1 but the facts of those cases are entirely different and do not cover the facts of this case on its all four corners.
15. Learned defense counsel is unable to point out any material contradictions in the case of the prosecution about this violation, of the direction of the EPO through cross-examination. EPO directions of water purification system was not complied with. Therefore the prosecution has proved his case against the respondent for violation of section 16 punishable under section 17(1) of Punjab Environmental Protection Act, 1997 (as amended in 2012).
16.Respondent during his statement under section 342, Cr.P.C. placed on record two lab reports Ex-DA and Ex-DB dated 30.06.2014 and 01.09.2010 respectively issued by the Public Health Department. These two reports are not per se admissible and respondent had not produced defense evidence to produce author of these two reports and prosecution were not given any opportunity to cross examine authors of the reports to verify the authenticity. The defense of the respondent is not plausible and convincing from the documents available on the record.
Prosecution proved his case against the respondent regarding two allegations. Respondent had not even challenged the EPO.
17. In view of discussion above the prosecution has proved the case against the respondent beyond shadow of doubts for violating direction of the EPO regarding water purification system issued under section 16 of the Act punishable under section 17 of PEPA 2012. Respondent is found guilty and convicted as such. As far as quantum of fine is concerned Tribunal is of the view that unit is ice factory and respondent failed to install Water Purification System therefore keeping in view the unit and nature of gravity of offence he is sentenced to pay fine of Rs,200000/- (Two lac) which shall be deposited by him in the Government Treasury within 30 days from today. In case of failure proceedings under section 386 of Cr.P.C. may be initiated against the respondent and Registrar Tribunal will put separate file for recovery after expiry of 30 days. Challan be issued to the respondent. Copy of this order is provided to the convict free of cost.