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Supreme Court Sets Aside Calcutta HC's Total Ban Of Firecrackers In West Bengal; State To Ensure No Import Of Banned Firecrackers

Aaratrika Bhaumik
1 Nov 2021 10:22 AM GMT
Supreme Court Sets Aside Calcutta HCs Total Ban Of Firecrackers In West Bengal; State To Ensure No Import Of Banned Firecrackers
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The Supreme Court on Monday set aside the order of the Calcutta High Court which imposed a complete ban of use of firecrackers in the State of West Bengal."...we are convinced that Calcutta High Court should have called upon parties to give explanation before passing such an extreme order", the Court observed in the order. The Court observed that the High Court ought to have given...

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The Supreme Court on Monday set aside the order of the Calcutta High Court which imposed a complete ban of use of firecrackers in the State of West Bengal.

"...we are convinced that Calcutta High Court should have called upon parties to give explanation before passing such an extreme order", the Court observed in the order.

The Court observed that the High Court ought to have given opportunities to the authorities to place on record if any mechanism was in place to ensure that only "green crackers", as permitted by the Supreme Court, are being used.

While setting aside the High Court's order, the Supreme Court also gave liberty to any party to approach the High Court with adequate materials.

"For the time being we only reiterate the position recorded in the order of the Supreme Court on 29th October 2021. Additionally the State of WB will explore the possibility of ensuing that no banned materials are imported. The mechanism may be strengthened", the Supreme Court added in the order.

A Supreme Court vacation Bench comprising Justices AM Khanwilkar and Ajay Rastogi was hearing the challenge to the the order dated October 29, 2021 of the Calcutta High Court banning the use of firecrackers in West Bengal during upcoming festivities of Kali Puja, Diwali, Chatt Puja, Jagadhatri Puja, Guru Nanak's Birthday, Christmas Eve and New Year's Eve this year.

"There cannot be a complete ban of firecrackers. Strengthen the mechanism to stop misuse", orally observed the bench during the course of hearing.

In the order, the Supreme Court noted that the High Court proceeded to impose by the blanket ban on being influenced by the lack of mechanism to ensure that only green crackers are being used. This aspect was never debated during the course of the arguments. Senior Advocate Anand Grover, appearing for the State of West Bengal, submitted that had the High Court given opportunity to the State, the authorities would have placed on record the details about the enforcement mechanism. The vacation bench further noted that the Supreme Court is considering the issue of firecrackers and has clarified in the order passed on October 29 that there is no complete ban on firecrackers.

Court room exchange

Senior Advocate Siddharth Bhatnagar, appearing for the dealers challenging the HC order, submitted at the outset that despite the fact that there are 3 orders of SC regarding green crackers and 2 orders of the NGT, the Calcutta HC has banned green crackers. He referred to the order passed by the Supreme Court on July 23, 2020, which upheld a complete ban of firecrackers only in areas where the air quality is "poor". In other areas, the authorities may permit the use of green crackers, the Court had ordered, submitted Bhatnagar.

He also referred to the latest order passed by the Supreme Court on October 29, which stated that there is no "total ban of firecrackers" and only those crackers which use the chemicals prohibited by the Court earlier are banned.

He argued that despite the Supreme Court allowing the use of green crackers, the Calcutta High Court imposed a blanket ban.

He also referred to last year's order of the Supreme Court which modified the blanket ban imposed by the Telangana High Court on firecrackers.

Senior Advocate Malvika Trivedi, appearing for the Siliguri Firecrackers Association, reiterated the submissions made by Bhatnagar. She highlighted that the Supreme Court allowed the use of green crackers after taking note of the practical difficulties.

"What are the practical difficulties? It is for the executive to decide", Justice Ajay Rastogi observed.

"And the High Court has not defined which are the practical difficulties", Justice Khanwilkar added.

Senior Advocate Gopal Shankaranarayan, who is representing the petitioner in the Arjun Gopal case (in which the order dated October 29 was passed), pointed out that in that order, the Supreme Court bench had taken note of the issue of banned crackers being sold under the false label of green crackers and fake QR codes.  He also highlighted that there is a CBI preliminary enquiry report which shows that even banned chemicals are being used in firecrackers, and the other bench has observed that the authorities lack the will and desire to strictly enforce the orders of the Court.

"In this background, the Calcutta High Court says, the State Government has not shown how they are going to implement. PESO has only cleared 4 firecrackers. The rockets, they are not cleared, but we find them everywhere. To me, the High Court's order appears to be reasonable restrictions, leaning in favour of protection of right to health, and is in line with the spirit of the Supreme Court order", Shankaranarayan added.

Senior Advocate Anand Grover, appearing for the State of West Bengal, submitted that the High Court's order was influenced by an impression that there is no scheme devised to ensure that only green crackers are being sold. He asserted that there is a mechanism in place and added that the State Government and the West Bengal police have been following the orders of the Supreme Court.

"We said we are going by the earlier orders....it is an unfounded apprehension on the part of the learned Calcutta High Court", he said.

"There is a mechanism. From 2018, we have been monitoring. There are a number of FIRs registered. In 2018, 24 FIRs were registered and 46 were arrested. 2019, 22 FIRs were registered and 26 persons were arrested. In 2020 190 FIRs, 243 FIRs. In 2021, till October 31, 7 FIRs were registered and 10 persons were arrested", he pointed out.

He said that the High Court passed the order in a PIL without giving an opportunity to the State to place on record these facts.

To a query by the bench, the West Bengal Pollution Control Board replied that there are no manufactures in West Bengal, and firecrackers are imported from other states. The bench asked if it is not possible for the police to verify if only green crackers are imported.

Senior Advocate Trivedi submitted that the green crackers have already been imported by the retailers and dealers and there is a QR code mechanism to verify them.

"It can easily be done by scanning which has happened in the past. By scanning you know which are the green crackers and fake crackers", she added.

Advocate Rachit Lakhmani, appearing for the petitioners before the High Court, adopted the submissions made by Mr.Shankaranarayanan. He added that fake crackers have already come into the state, and it was not possible to track them, and it was in this background that the High Court order was passed.

He submitted that there should be demarcated zones for bursting of firecrackers, whether green or not, away from hospitals and residential zones. He said that crackers are going to be burst in streets and terraces.

"You are imagining many things..people are also conscious these days", Justice Khanwilkar said. "There cannot be complete ban..strengthen the mechanism to ensure misuse is stopped...implement orders of the court", he added.

Advocate Lakhmani further pointed out that recently the Orissa High Court had also imposed a complete ban on the use and sale of firecrackers. To this, the Bench underscored that there has to be consistency in the directions of the High Court and that if required someone could challenge the order of the Orissa High Court as well. 

Senior Advocate Siddharth Bhatnagar appeared for the petitioner and was assisted by Advocates Rahul Arya and Easha Manchanda. Senior Advocate Malvika Trivedi represented the Siliguri Firecrackers Association and was assisted by Advocates Ashish Choudhury and Madhav Bhatia.  The petitions were filed through AORs  Rohit Amit Sthalekar and Alok Tripathi.

Background

A Division Bench comprising Justices Sabyasachi Bhattacharya and Aniruddha Roy of the Calcutta High Court had ordered a a complete ban on the usage and sale of all kinds of firecrackers including green crackers throughout the State of West Bengal during the upcoming festivities.

"The State should ensure that there is no use or display or bursting of firecrackers of any type at all during the oncoming Kali Puja, Diwali celebration as well as the following Chatt Puja, Jagadhatri Puja, Guru Nanak's Birthday and/or Christmas/New Year's Eve this year. For such purpose, only wax or oil-based diyas might be used", the High Court had ruled.

The High Court had further observed that there is no existing mechanism in place to ascertain whether only "green crackers" as permitted by the Supreme Court are being used and hence had proceeded to ban the use of such green crackers as well.

"It would be an impossible task for the police and/or law enforcement agencies to ascertain the veracity of the certificates of the crackers which are being used by the general public at the time of these festivals, irrespective of the classification under which they are sold. Leaving the window open for green crackers to be used, would positively entail abundant abuse of such window and there is no mechanism in place, as mentioned earlier, to screen such abuse at this juncture, when the festive season is on the anvil", the High Court had further opined.

Case Title: Goutom Roy and Anr v. State of West Bengal Diary No.26640-2021, Sudipta Bhowmick v. State of West Bengal SLP(C) No.17991/2021

Citation : LL 2021 SC 629

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