TaxTMI 
TaxTMI 
2017 (5) TMI 1773
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....elhi Disaster Management team and the police staff swooped into action for finding out as to whether any victim was trapped in the school premises situated nearby. 3. It was then learnt through a CISF staff deployed near the exit gate of the CONCOR that some kind of poisonous gas/chemical had leaked from a truck. It was found that the chemical/gaseous substance which escaped from one of the containers kept in the truck was chloromethyl pyridine 60%, which was imported from China for Crystal Crop Protection Pvt. Ltd and the same was being transported in the truck No.HR-38T-8972 from the custom bound area of the CONCOR. As an emergency measure, the name of the chemical/gas was passed on to all hospitals in order to facilitate the diagnosis and the treatment of the victims accordingly. 4. The gas leak soon spread over a larger area and maximum number of persons who were adversely effected were the female students at Rani Jhansi Senior Secondary and Government Girls Senior Secondary School No.2, Railway Colony, Tuglakabad. 5. The Court of Sub Divisional Magistrate, District South East, Old Gargi College Building, Lajpat Nagar-IV, New Delhi on coming to know that about more tha....
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....to remove all the materials i.e. all obnoxious chemical/gas, any explosive material and any other material which could cause health hazard to the public in the vicinity; disaster Management plan be submitted immediately to mitigate any emergency/disaster and an undertaking from petitioner/CONCOR be filed in the Court of the Magistrate to the effect that no container having obnoxious chemical/gas/explosive be allowed at the site, which may lead to any disaster. 11. However, the directions in (b) i.e. to release all the containers from the site in a phased manner and (c) not to accept any container at the site, were stated to be unwarranted and harsh. It was submitted on behalf of the petitioner that CONCOR is a Government of India undertaking which is conscious of its responsibilities and in the past, had been exercising due diligence in the storage of containers. It was submitted that special care is always taken with respect to containers having chemicals, gases and explosives. 12. The CONCOR was incorporated in March, 1988 under the Companies Act, 1956, as a Public Sector Enterprise under the Ministry of Railways. It is, today, in the business of providing terminal services....
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....erest. The petitioner would be duty bound to store containers which have IMDG, Customs and DGFT clearance. 17. However, as an interim measure, this Court directed for the stay of the directions contained in (b) and (c) till further orders. 18. Thereafter, on hearing the parties and on realizing that the Customs Department would be a necessary party in the present case, directed the Customs Department to be arraigned as respondent No.2. In the meantime, because of petitioner and respondent No.2, demonstrating that even directions in (a) is uncalled for, this Court stayed the operation of direction in (a) as well. 19. It was also submitted on behalf of the petitioner that CONCOR, right from its inception has been carrying out its Exim activities strictly in terms of the Indian Customs Act and DGFT guidelines. The aforesaid guidelines have also been imposed on the importers through their shipping lines. In that view of the matter, closing down of ICD, Tuglakabad would not be the most appropriate solution. 20. Apart from this, what was argued was that the leakage actually happened outside the ICD premises when the containers were gated out after due process and the importer....
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.... learned advocate submitted that the commodity in question (Chloromethyl pyridine) is a freely importable item under the Exim policy and Foreign Trade policy. The direction contained in (a) is of such a wide range which includes phasing out of chemical gases and materials which may be even freely importable that it cannot be executed. Any direction for removing of such materials would not only gravely prejudice the export and import of freely importable goods but would also be prejudicial in national interest. 27. The directions to remove the containers from the ICD, Tuglakabad would only be in conflict with various provisions of the Customs Act. Removal of any container is only possible after normal assessment and duty payment in cases where Bills of Entry under Section 46 of the Customs Act has been filed. In other cases, where the Bills of Entry have not been filed, there cannot be any removal before the expiry of 30 days of the unloading which is mandated by Section 48 of the Customs Act. Containers which have been kept on hold because of pending investigations by different agencies such as DRI and SIIB, cannot be removed at the instance of the Customs Department as "no obje....
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.... (c) that the construction of any building, or, the disposal of any substance, as is likely to occasion configuration or explosion, should be prevented or stopped; or (d) that any building, tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, and that in consequence the removal, repair or support of such building, tent or structure, or the removal or support of such tree, is necessary; or (e) that any tank, well or excavation adjacent to any such way or public place should be fenced in such manner as to prevent danger arising to the public; or (f) that any dangerous animal should be destroyed, confined or otherwise disposed of, such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order- (i) to remov....
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.... Magistrate will hold preliminary enquiry and if he finds the contention good, the question will be left to be determined by a Civil Court. If there is no substance in the contention, the enquiry will proceed. When an order is made absolute under Section 136 or Section 138, the person will be called upon to carry it out within the specified time and if he fails to carry it out, he could be prosecuted under Section 188 of the Indian Penal Code. 32. From a reading of Sections 133 to 138, it would appear that the enquiry which is contemplated in the aforesaid sections is mandatory and any order for removal of public nuisance without following the mandatory provisions is unsustainable. 33. For a conditional order under Section 133(b), after the invocation of the Section either on the basis of a police officer‟s report or other information and on taking such evidence as it thinks fit, a conditional order could be passed. 34. From the order dated 06.05.2017 which is a conditional order of closing down the ICD, Tuglakabad and submitting the report along with the photographs before the learned Magistrate on 09.05.2017, it does not appear that any enquiry was held by the lear....
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....undertaken by the petitioner, would be delivered to the importers/shipping lines after clearance of the Customs within a period of three weeks. In case any container is unclaimed, abandoned or put on hold by the Customs Department, it would be dealt with as per the provisions of the Customs Act. 6 out of 99 containers belong to the aforesaid category. 27 containers, in which fire crackers have been stored, have been confiscated by Customs. They have been released to the ICD for destruction with a direction to dispose of through a custom approved agency namely M/s.Ramky Enviro Engineers Ltd under the supervision of the Customs authorities. It has been undertaken that the destruction of these containers would be completed within six weeks. 37. Out of 104 containers which were received in the ICD prior to 01.01.2017, the petitioner would require necessary clearance from the Customs and other agencies. In this connection, a request has been made by the petitioner that the Deputy Commissioner of Customs be directed to permit the petitioner to shift the undelivered containers in this category to any depot away from the ICD, Tuglakabad. During the course of arguments, Ms.Pinky Anand, l....
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....ons, has forgotten is that with the growing business and variety of cargo being transported in containers throughout the length and breadth of the country, some risk is always posed but handling such containers would, in any event, be an important aspect of the growth of the nation. 42. A comprehensive disaster management plan of the petitioner is already in place. A copy of the disaster management plan of the petitioner has been handed over in Court which has been taken on record. 43. Taking into account that handling of such containers with hazardous substances poses high risk not only in the premises but also while on transport, the disaster management plan of CONCOR includes technical and organizational measures to control and neutralize the unintentional escape of hazardous material at all places. The plan of the petitioner, it is urged, is aimed at preventing such mishaps and minimizing accidents and losses. 44. It appears that the plan contains guidelines for all types of possible disasters like fire, chemical leaks, spills, terrorist activities, earthquakes etc. Various standard operating procedures, instructions and guidelines have been issued for minimizing the c....
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....cor. 51. All these aspects, as has been stated earlier could have been brought to the notice of the learned Magistrate if he would have undertaken the enquiry as contemplated under Section 133 (b) of the Code of Criminal Procedure. 52. It, therefore, appears to be imperative, that the matter be referred to the learned Magistrate for a final determination regarding making of an absolute order for removal of nuisance. The Magistrate would definitely have to apply its mind as to whether the existence of ICD, Tuglakabad with the storage facilities and with the requirement of complying with the safety standards under the DGFT and IMDG Code, can at all be called nuisance. 53. In the meantime, the petitioner Corporation shall respect its undertaking and would ensure that no untoward incident takes place. 54. Thus, the matter is remitted to the Court of the learned Magistrate for holding an enquiry, hearing the petitioner and the respondent No.2 and if needed directing for local investigation by summoning and examining any expert under Sections 139 and 140 of the Code of Criminal Procedure, and thereafter passing necessary orders to remove nuisance if at all it exists and to en....