Samples, Laboratories and Proof Under the EPA

Section 10: entry, inspection, search and seizure

A person empowered by the Central Government may enter any place at all reasonable times, with such assistance as he considers necessary, for three purposes: to perform functions entrusted to him, to determine whether the Act or the rules or any notice, order, direction or authorisation is being complied with, and to examine and test equipment, plant, records and other material, including by searching a building where he has reason to believe an offence has been, is being or is about to be committed, and seizing anything that may furnish evidence or where seizure is necessary to prevent or mitigate pollution.

Sub-sections (2) and (3), as substituted in 2023. A person carrying on any industry, operation or process of handling any hazardous substance must render assistance, and if he fails without reasonable cause he is liable to penalty under section 14B. A person who wilfully delays or obstructs is likewise liable to penalty under section 14B. Before 1 April 2024 both were offences; they are now penalties, which is the change Module IV works through.

Sub-section (4). The Code of Criminal Procedure applies to searches and seizures under this section so far as may be, as it applies to those made under a warrant. Since 1 July 2024 the corresponding provisions are in the Bharatiya Nagarik Suraksha Sanhita 2023, and the reference to section 94 of the old Code is read accordingly.

Section 11: the sample, clause by clause

Sub-section (1). The power: the Central Government or an officer empowered by it may take samples of air, water, soil or other substance from any factory, premises or other place, in the manner prescribed.

Sub-section (2). The sanction: the result of any analysis shall not be admissible in evidence in any legal proceeding unless sub-sections (3) and (4) are complied with.

Sub-section (3), the four steps. The person taking the sample shall:

1. serve on the occupier, or his agent or the person in charge of the place, a notice then and there, in the prescribed form, of his intention to have the sample analysed;
2. collect the sample for analysis in the presence of the occupier or his agent or that person;
3. cause the sample to be placed in a container, marked and sealed, and signed both by the person taking the sample and by the occupier or his agent or that person;
4. send it without delay to a laboratory established or recognised under section 12.

Sub-section (4), what happens when the occupier will not cooperate. This is the provision students overlook and it is the answer to the obvious objection.

• If the occupier wilfully absents himself after the notice, the officer collects the sample, and the container is marked, sealed and signed by the officer alone.
• If the occupier is present but refuses to sign, the container is marked, sealed and signed by the officer alone.

In either case the container goes without delay to the laboratory, and the officer must inform the Government Analyst in writing of the wilful absence or the refusal.

So the scheme is: the occupier gets notice, gets to be present, and gets to countersign, and if he declines any of those the sample is still good provided the officer records what happened. The right is a right to participate, not a veto.

Sections 12, 13 and 14: laboratories, analysts and proof

Section 12. The Central Government may by notification establish environmental laboratories or recognise existing laboratories or institutes as such, and may make rules specifying their functions, the procedure for submitting samples, the form of the report and the fees.

Section 13. It may appoint or recognise persons with the prescribed qualifications as Government Analysts for the analysis of samples sent to such laboratories.

Section 14. Any document purporting to be a report signed by a Government Analyst may be used as evidence of the facts stated therein in any proceeding under the Act.

Section 14 is the reason the chain matters. It makes a piece of paper evidence of its contents without calling the analyst, which is a substantial evidentiary advantage. It attaches only to a report of a Government Analyst, on a sample sent to a laboratory established or recognised under section 12, and only where section 11 was complied with.

The rules fill in the detail: rule 6 of the Environment (Protection) Rules 1986 prescribes the procedure for taking samples, rule 7 the service of notice, rule 8 the procedure for submission of samples and the form of the laboratory report, rule 9 the functions of an environmental laboratory, rule 10 the qualifications of a Government Analyst and rule 11 the manner of giving notice.

A worked example

An officer visits a unit at eleven in the morning. The occupier is away. The officer takes a sample of effluent from the outlet, puts it in a bottle, labels it, seals it, signs it himself, and sends it to a recognised laboratory the same day. The report shows the discharge above the standard.

Is the report admissible? It depends entirely on what the officer did about the notice.

If he served the notice on the person in charge of the place then and there, took the sample in that person's presence, and had it countersigned, sub-section (3) is satisfied and the report is admissible.

If nobody was there to serve, the question is whether the occupier or his agent or the person in charge wilfully absented himself after notice. Sub-section (4)(a) covers wilful absence after the notice has been served. It does not cover a case where no notice was served at all because there was nobody to serve it on, and sub-section (2) then bites: the result is inadmissible.

What the officer should have done. Waited for the person in charge, or served the notice on whoever was in charge of the place, which the section expressly permits and which is wider than the occupier. There is almost always somebody in charge of a working plant.

And the practical lesson for the other side. Refusing to sign the container achieves nothing, because sub-section (4)(b) provides for it. What it does achieve is a written intimation to the Analyst that the occupier refused, which does not help the occupier's case at all.

Distinctions

What it does NOT mean

It does not mean the occupier can defeat a sample by refusing to cooperate. Sub-section (4) exists for exactly that and it works.

It does not mean any laboratory will do. Section 14 attaches to a report of a Government Analyst on a sample sent to a laboratory established or recognised under section 12.

It does not mean a defective sample makes the industry innocent. It makes the analysis inadmissible. The Board may sample again, and other evidence of the contravention is unaffected.

It does not mean section 9 requires an offence. The duty to report arises on an accident or unforeseen event, and reporting is the opposite of an admission of wrongdoing: failing to report is itself the breach.

Quick revision

• Section 9: duty on two persons, the one responsible and the one in charge of the place, to prevent or mitigate and forthwith intimate, on an actual or apprehended discharge; the authority's remedial expenses plus interest are recoverable as arrears of land revenue.
• Section 10: entry, inspection, search and seizure; failing to assist and wilfully obstructing are now penalties under section 14B.
• Section 11(2): the analysis is inadmissible unless (3) and (4) are complied with.
• Section 11(3): notice then and there, sample in his presence, container marked, sealed and signed by both, sent without delay.
• Section 11(4): wilful absence or refusal to sign, officer signs alone and informs the Analyst in writing.
• Sections 12 to 14: laboratories established or recognised, Government Analysts, and a report may be used as evidence of the facts stated in it.

Test yourself

1. What is the consequence of not following the procedure in section 11(3)? Section 11(2) makes the result of the analysis inadmissible in evidence in any legal proceeding. The Board is then left with no proof of the concentration and the case for contravention of section 7 fails, whatever the true state of the effluent, unless the Board takes a fresh sample properly.

2. An occupier refuses to countersign the sealed container. What follows? Nothing helpful to him. Under section 11(4)(b) the container is marked, sealed and signed by the officer alone and sent without delay to the laboratory, and the officer must inform the Government Analyst in writing of the refusal. The sample and the analysis remain admissible; the only result of the refusal is that it is recorded.

3. Who bears the cost of remedial measures taken by an authority after an accidental discharge? The person concerned. Under section 9(3) the expenses incurred by the authority, together with interest at a rate the Government fixes by order running from the date of demand until payment, may be recovered from him as arrears of land revenue or of public demand, which is an administrative recovery and does not require a suit.

4. What does section 14 achieve that would otherwise require a witness? It makes any document purporting to be a report signed by a Government Analyst usable as evidence of the facts stated in it in a proceeding under the Act, so the laboratory result proves itself without the analyst being called to prove it. That advantage depends on the whole chain: a proper sample under section 11, a laboratory established or recognised under section 12, and an analyst appointed or recognised under section 13.