IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF JULY 2019 BEFORE THE HON'BLE Mr.JUSTICE P.S.DINESH KUMAR CRIMINAL PETITION NO.2856 OF 2019 BETWEEN:
1. SAVA HEALTHCARE LIMITED FORMERLY KNOWN AS:
SAVA PRIVATE LIMITED HAVING ITS REGISTERED OFFICE AT SHED NO.508 GIDC-2, WADHWAN CITY SURENDRA NAGAR DISTRICT – 363 035 GUJARAT REPRESENTED HEREIN BY ITS DIRECTOR MR.VISHAL JADHAV 2. SAVA HEALTHCARE LIMITED FORMERLY KNWN AS:
SAVA PRIVATE LIMITED HAVING ITS CORPORATE OFFICE AT SAVA HOUSE, OFF NEW AIRPORT ROAD VIMAN NAGAR, PUNE – 411014 MAHARASHTRA REPRESENTED HEREIN BY ITS DIRECTOR MR.VISHAL JADHAV 3. SAVA HEALTHCARE LIMITED FORMERLY KNOWN AS: SAVA PRIVATE LIMITED HAVING ITS FACTORY AT NO.107-109, 3RD PHASE KIADB INDUSTRIAL AREA MALUR TALUK, KOLAR DISTRICT – 563 130 KARNATAKA REPRESENTED HEREIN BY ITS DIRECTOR MR. VISHAL JADHAV …PETITIONERS (BY SHRI RAVI B.NAIK, SR.ADVOCATE FOR SHRI H.N.NARENDRA DEV, ADVOCATE) AND:
KARNATAKA BIODIVERSITY BOARD (CONSTITUTED BY THE GOVERNMENT OF KARNATAKA UNDER SECTION 22 OF THE BIOLOGICAL DIVERSITY ACT) DEPARTMENT OF FOREST, ECOLOGY AND ENVIRONMENT HAVING ITS OFFICE AT:
GROUND FLOOR, “VANA VIKAS” 18TH CROSS, MALLESHWARAM BANGALORE – 560003 REPRESENTED BY ITS AUHORIZED OFFICER SMT.DAKSHYANAMMA G ASSISTANT CONSERVATOR OF FORESTS KARNATAKA BIODIVERSITY BOARD DEPT. OF FOREST, ECOLOGY AND ENVIRONMENT … RESPONDENT (BY SHRI NASRULLA KHAN, HCGP A/W SHRI H.K.VASANTH, ADVOCATE) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C., PRAYING TO QUASH THE PRIVATE COMPLAINT DATED 22.02.2018 FILED BY THE RESPONDENT IN P.C.R.NO.102/2018 BEFORE THE II ADDITIONAL CIVIL JUDGE AND J.M.F.C., MALUR, U/S 61(a) OF THE BIOLOGICAL DIVERSITY ACT R/W SECTION 200 OF CR.P.C. 1973 (ANNEXURE-A) FOR THE OFFENCE P/U/S 55(2) OF THE ACT AND THEREBY SET ASIDE THE ORDER DATED 23.02.2018 IN P.C.R.NO.102/2018 PASSED BY THE II ADDITIONAL CIVIL JUDGE AND J.M.F.C MALUR, TAKING COGNIZANCE OF THE COMPLAINT AND REGISTERING THE SAME AS C.C.NO.328/2018 (ANNEXURE-J) AND ETC., THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER SAVA Healthcare Limited, a public limited company has presented this petition with a prayer to quash the private complaint dated 22.02.2018 and to set aside the order of learned Magistrate taking cognizance on 23.02.2018.
2. Heard Shri Ravi B.Naik, learned senior advocate for Shri H.N.Narendra, advocate for petitioners. He has urged following grounds in support of this petition:
that insofar as SAVA Healthcare Limited represented by its director Mr.Vishal Jadhav having the registered office at Wadhawan City, Surendar Nagar District, Gujarat and the Corporate office in Viman Nagar, Pune, Maharashtra are concerned, cognizance could not have been taken in view of Section 202 of Cr.P.C., because the said accused are beyond the territorial jurisdiction of the learned Magistrate;
that the respondent had called upon the petitioner by their notice dated 20.12.2017 to comply with provisions of Section 7 and 24 of the Biological Diversity Act, 2002 and Rule 15(1) of the Karnataka Biological Diversity Rules, 2005, ABS Guidelines 2014 and Notifications (for short ‘the Act’) within 15 days from the date of receipt of the said notice. It was also communicated that action would be initiated under Sections 58 and 55(2) of the Act if the petitioners failed to comply;
that the said notice was infact dispatched on 23.12.2017;
that the petitioners have complied with the directions contained in the show-cause notice by submitting Form No.1 on 06.01.2018. Therefore, no offences is said to have been committed sofar as Section 7 of the Act is concerned;
Learned Magistrate has recorded in the impugned order that there is violation of Section 7 and 24(2) of the Act and it entails punishment under Section 55(2) of the Act.
3. Learned senior advocate submitted that Section 24(2) of the Act is not a penal section. The vigor of Section 7 does not affect the petitioners as they have complied with the directions contained in communication dated 23.12.2017. Therefore, the impugned order issuing process is unsustainable in law. Accordingly, he prays for allowing this petition.
4. Learned HCGP argued opposing the petition.
5. I have carefully considered rival contentions and perused the records.
6. First ground is with regard to impleading the public limited company represented by its Director Shri Vishal Jadhav having its office at Gujarat and Maharashtra. Admittedly, the manufacturing unit of the public limited company is situated at Malur in Kolar district and as described in the cause title of the petition. Thus, the public limited company has been shown at three addresses and it is represented by its director Mr.Vishal Jadhav. Thus, it is not disputed by the petitioners that manufacturing unit is situated at Malur Taluk in Kolar district. SAVA Healthcare Limited represented by Mr.Vishal Jadhav situated at Malur is not beyond the territorial jurisdiction of the learned Magistrate. In the circumstances, Section 202 of Cr.P.C., pressed by the learned senior advocate contending that the learned Magistrate ought to have deferred issuance of process will not lead the case any further, inasmuch as, manufacturing unit is situated at Malur and the said unit is admittedly owned by public limited company. Therefore, the ground that issuance of process ought to have been postponed is untenable and hence fails.
7. Insofar as second contention is concerned, the learned Magistrate has taken cognizance of the offences under Sections 7 and 24(2) of the Act, which is punishable under Section 55(2) of the Act. According to the learned senior advocate, Section 7 shall not be attracted as petitioners’ company has complied with the instructions contained in communication dated 20.12.2017 and submitted Form No.1 as per Rule 15 of the Rules 2004 of the Act within 15 days as called upon by the Assistant Conservator of Forest and Administrative Officer, Karnataka Biodiversity Board. I am afraid this ground is also untenable because Section 7 of the Act, mandates a prior intimation to the State Biodiversity Board. Relevant portion of Rule 7 reads as follows:
“7. No person, who is a citizen of India or a body corporate, association or organization which is registered in India, shall obtain any biological resource for commercial utilization, or bio survey and bio utilization for commercial utilization except after giving prior intimation to the State Biodiversity Board concerned:
Provided that the provisions of this section shall not apply to the local people and communities of the area, including growers and cultivators of biodiversity, and vaids and hakims, who have been practicing indigenous medicine”
(Emphasis supplied) The provision is specific and places embargo upon any person seeking to obtain any biological resource for commercial utilization, or bio survey and bio utilization for commercial utilization except after giving prior intimation to the State Biodiversity Board.
Procedure for prior intimation is set out in Rule 15 of the Rules, 2005 which reads as follows:
“15. Procedure for prior intimation for obtaining biological resources:
(1) Any person intending to obtain any biological resources and associated knowledge for research or for commercial utilization, with the exception of those in the proviso to section 7 of the Act, shall give prior intimation to the Board by making an application in Form I.
(2) Every application under sub-rule (i) shall be accompanied by a fee of one thousand rupees in the form of cheque or demand draft drawn in favour of the Board.
(3) The Board shall, after consultation with the concerned local Biodiversity Management Committee and on collection of such additional information from the applicant and other resources, as it may deem necessary, dispose of the application, as far as possible, within a period of two months from the date of receipts.
(4) xxxx.
(5) xxxx (6) xxxx (7) xxxx”
(Emphasis supplied) 8. The contention that the Assistant Conservator of Forest had issued notice stating that petitioners had not submitted the prescribed Form No.1 for the years 2014-2015, 2016-2017 and 2017- 2018 and they were called upon to furnish the same within 15 days there from and compliance of instructions contained in the said communication should absolve petitioners of the offences is too fragile to be countenanced. When the Statute prohibits utilization of Biological resources except after giving prior intimation to the Biodiversity Board an officer on his own volition cannot grant amnesty by issuing a notice and granting 15 days time to submit the form. It is settled that there can be no estoppel against the Statute. To a query made by this Court, Shri Ravi B.Naik, learned senior advocate in his usual fairness submitted that there is no provision or clause for waiver of submission of Form No.1 or waiver of the statutory provision. Therefore the enforcement officer cannot grant concession contrary to statutory provisions.
9. Next ground urged is that Section 24(2) with regard to State Government passing the order prohibiting or restricting the activity. Learned Magistrate has recorded that he has perused the complaint and Biodiversity Act and more particularly Section 7, 24(2) and Section 55(2) of the Act. He has also recorded that the act requires the company to submit Form No.1 to State Biodiversity Board.
10. Section 55(2) of the Act is a penal Section and it reads as follows:
“55(2) Whoever contravenes or attempts to contravene or abets the contravention of the provisions of section 7 or any order made under sub section (2) of section 24 shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to five lakh rupees, or with both.”
11. Thus, contravention of Section 7 or any order made under Section 24(2) shall be punishable under the above provision. It is averred in paragraph No.10 of the private complaint that petitioners have contravened provision of the Biological Diversity Act, 2002 by failing to submit Form No.1 for the years 2014-2015, 2016-12017 and 2017-2018 within the stipulated time as per Sections 7 and 24(2) of the Act and Rule 15(1) of the Karnataka Biological Diversity Rules, 2005. Accordingly, complainant has prayed the learned Magistrate to take cognizance of offences under Section 55(2) of the Biological Diversity Act, 2002.
In view of the above discussions, the grounds urged in respect of the petition on behalf of the petitioners, in my considered view, are not tenable Hence no exception can be taken to the learned Magistrate’s order taking cognizance of the offence.
Resultantly, this petition must fail and it is accordingly, dismissed.
No costs.
Sd/- JUDGE HJ