Sections 10 and 11: Entry, Inspection and Samples

In one line

A prosecution under this Act stands or falls on a sample, and the sample is worthless unless four steps were followed in order.

In the wording a student can write in an examination: section 10 of the Environment (Protection) Act 1986 empowers any person empowered by the Central Government to enter at all reasonable times with such assistance as he considers necessary any place for the purpose of performing any of the functions of the Central Government entrusted to him, for the purpose of determining whether any provision of the Act or any rule, order or direction is being complied with, and for the purpose of examining and testing equipment, industrial plant, record, register, document or any other material object or conducting a search of any building in which he has reason to believe that an offence under the Act has been or is about to be committed, and section 11 empowers such a person to take for the purpose of analysis samples of air, water, soil or other substance from any factory, premises or other place in such manner as may be prescribed, with the result of the analysis being admissible in evidence only if the procedure in sub-sections (3) and (4) is followed.

Section 10, the power of entry

Who. Any person empowered by the Central Government in that behalf. Not any inspector, not any employee of a Board, but a person empowered under section 4 or by a delegation under section 23.

When. At all reasonable times.

With what. Such assistance as he considers necessary.

For what purposes. Three: performing the functions entrusted to him; determining whether any provision of the Act, rule, order or direction is being complied with; and examining and testing equipment, plant, records and material objects, or conducting a search of any building in which he has reason to believe that an offence has been or is about to be committed.

The occupier's duty. Every person carrying on any industry, operation or process or handling any hazardous substance shall be bound to render all assistance to the person empowered, and if he wilfully delays or obstructs him he is guilty of an offence.

The search. The provisions of the criminal procedure law relating to search and seizure apply, so far as may be, to a search or seizure under this section.

Section 11, the taking of a sample

The four steps in sub-sections (3) and (4) are the heart of this chapter, and they are the commonest ground on which an environmental prosecution fails.

Step one, notice. The person taking the sample must serve on the occupier or his agent or person in charge of the place a notice, then and there, in the prescribed form, of his intention to have the sample analysed.