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29 Dec

Drug which is manufactured through heavy processing of trees are not forest produce under the Forest Act, 1927 : Bombay HC

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Blog #bombayhc, #environmentallaw, #healthlaw, #law, #wildlifeact

TITLE : Fresenisu Kabi Oncology Ltd. V The State of Maharashtra

CORAM : Hon’ble Justice A.S Gadkari and Hon’ble Justice Shyam C. Chandak

DATE : 22^nd December, 2023

CITATION : CrWP. No 667 of 2010

FACTS

The petitions are filed under Article 226 of the Constitution along with Section 482 of CrPC to set aside the criminal accusations on the petitioner. The accusations is related to theft of forest produce by the petitioners. The tree involved is Narkya found in the western Ghats and the theft complaint was lodged against 490 offenders for the offences punishable under the Wildlife Protection Act, 1972, The Indian Forest Act, 1927 and the Bombay Forest Rules, 1942. The main offenders were caught making chips of the tree of 1110 Kgs and Camptothecin which is used in the manufacturing of anti-cancer drugs by the petitioners unit. The seized Camptothecin was worth 44 Lakhs for 22 kgs.

It was argued that Camptothecin being the final product does not come under the ambit of “forest produce” as per the Forest Act. The respondents argued that the Camptothecin in question was made through illegal means and was stolen from the forest areas.

LAWS INVOLVED

Forest Produce as per the Forest Act, 1927 is defined as :

Section 2(4) “Forest-produce” includes—

(a) the following whether found in, or brought from, a forest or not, that is to say— timber, charcoal, caoutchouc, catechu, wood-oil, resin, natural varnish, bark, lac, mahua flowers, mahua seeds, 3 [kuth] and myrabolams, and

(b) the following when found in, or brought from a forest, that is to say—

(i) trees and leaves, flowers and fruits, and all other parts or produce not hereinbefore mentioned, of trees,

(ii) plants not being trees (including grass, creepers, reeds and moss), and all parts or produce of such plants,

(iii) wild animals and skins, tusks, horns, bones, silk, cocoons, honey and wax, and all other parts or produce of animals, and

(iv) peat, surface soil, rock and minerals (including lime-stone, laterite, mineral oils, and all products of mines or quarries

ISSUES

Whether Camptothecin manufactured using stolen Narkya trees come under the ambit of forest produce as per the Forest Act, 1927

JUDGEMENT

The court analysed the factual procedure for manufacturing Camptothecin and stated that it is produce through various chemical process and during that process the chemical nature of the tree is permanently changed.

The court held that since the composition of camptothecin is completely changed and is not identifiable by the tree, it is not a forest produce. Further, it was held that There is no material against the Petitioners showing that before purchasing and till receiving said Camptothecin, they knew that it was derived/extracted from the chips of the stolen Narkya trees.

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Written by- Sanjana Ravichandran

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29 Dec

Investigating authority needs to seek permission with the magistrate to investigate non cognizable offences under Section 155(2) of CrPC : Bombay HC

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Blog #bombayhc, #CrPc, #IPC, #law, #legalnews

TITLE : Nitin Shivdas Satpute V The State of Maharashtra

CORAM : Hon’ble Justice Anil L Pansare

DATE : 22nd December, 2023

CITATION : CrWP. No 660 of 2022

FACTS

The petitioner is a librarian in a college and the 2nd respondent is the principal of the college. The allegation of the petitioner is that the respondent is a habitual user of abusive and filthy language against the staff of the college. The petitioner along with other staff had complained regarding the same to the vice chancellor. Being annoyed at such complaint, the respondent had called the petitioners to his chambers and abused him verbally and threatened him to murder the petitioner and passing derogatory comments against his wife. He then lodged a complaint against the respondent under Section 504 and 506 of IPC.

The petitioner before the magistrate pleaded that the offence in hand was put under the category of non-cognizable offence when the nature of the offence attracted cognizable offence under Section 200 of CrPC. The magistrate issued process against the respondent for offences under Section 294, 504 and 506 of IPC. The sessions judge set aside the order.

LAWS INVOLVED

Section 294 of IPC :

“294. Obscene acts and songs. – Whoever, to the annoyance of others –

(a) does any obscene act in any public place, or

(b) sings, recites or utters any obscene song, ballad or words, in or near any public place,

shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both

Section 155(2) of the Code of Criminal Procedure :

No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial

ISSUES

Whether the sessions judge erred in claiming principal’s office is not a public place?
Whether there is sufficient jurisdiction to seek for magistrate’s permission to investigate the offence.

JUDGEMENT

The court held that the principal’s chamber is a public place since it is situated in the campus building where the students, teachers and staff and other persons relating to the college have access to the building. Secondly, the derogatory remarks pertaining to the petitioners wife is regarded to be obscene in nature. The statement shames the dignity and modesty of the petitioner’s wife.

The court held that the sessions judge has erred in holding the position that no other person was present in the chambers when the incident occurred.

As far as the jurisdictional issue is concerned, the petitioner has two options to ensure an investigation is done under either Section 155(2) of CrPC or Section 200 of CrPC as the offence is non-cognizable nature. The court further held that in certain circumstances it is necessary to seek permission of the magistrate in investiagating non-cognizable offences under Section 155(2) of the code.

Written by- Sanjana Ravichandran

Click here to view judgement

28 Dec

The Bombay HC uphelds the decision of the tribunal in reducing the penalty for multiple funds to Jaipur IPL to 15 crores from 98 crores

Prime Legal

Blog #BOMBAY HIGH COURT, #FEMA, #judgement, #Report, Cricket

TITLE : The special director V Jaipur IPL Cricket Pvt. Ltd

CORAM : Hon’ble Justice K.R Shriram and Hon’ble Justice Dr. Neela Gokhale

DATE : 13th December, 2023

CITATION : FEMA Appeal no.1 of 2020

FACTS

These appeals are filed under Section 35 of the Foreign Exchange Management Act, 1999 under the order passed by the authority of FEMA. The quantum of total penalty imposed upon the appellants which was 98.35 crores was reduced to 15 crores only. After receiving certain information, it was observed that the there was large scale irregularities in the conduct and functioning of the IPL and its franchises. In the process of bidding a certain media house submitted a bid of Rs.268 crores for a team at Jaipur and subsequently only 20 crores of it was transferred. The rest was supposed to be paid by a bidder from Mauritius. 9 Cr were transferred through foreign investments by the bidder. On the other hand, RBI refused to transfer shares from to the bidder as the person was outside India. The respondents were held to be violating the provisions of Section 6(3)(b) of FEMA and Regulation 5(1) of the Foreign Exchange Management (Transfer or Issue of Security by a Person Resident Outside India) Regulations, 2000 and paragraph 8 of Schedule I further read with Regulation 5 of Foreign Exchange Management (Permissible Capital Account Transactions) Regulations, 2000.

LAWS INVOLVED

Section 6(3)(b) of FEMA states that the RBI Can restrict the transfer of certain securities and also regulate them.

Regulation 5(1) of the Foreign Exchange Management (Transfer or Issue of Security by a Person Resident Outside India) Regulations, 2000 provides for the permissions that is required to allow a person outside India to make investments.

“A person resident outside India may subscribe, purchase or sell capital instruments of an Indian company in the manner and subject to the terms and conditions specified in Schedule 1.”

ISSUES

Whether the reduction of money to 15 crores valid?

JUDGEMENT

The court dismissed the appeal on the ground that there is nothing perverse in the tribunal order to reduce the amount to Rs.15 cr. By applying the doctrine of proportionality, the court agreed with the order of reducing the penalty amount.

Under Section 35 of the FEMA, an Appeal will lie only in regard to a question of law arising out of such order as appealed against and in the present case the there is no question of law proved by the appellant.

Written by- Sanjana Ravichandran

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28 Dec

Delhi High Court Upholds Idea-Expression Dichotomy: Plaintiff Must Prove Substantial Copying for Copyright Victory

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Blog #ShamsheraMovie #Litigation #CopyrightAct #Delhihighcourt

Title: BIKRAMJEET SINGH BHULLAR versus YASH RAJ FILMS PRIVATE LIMITED & ORS.

+ CS(COMM) 483/2022

Decided on: 20th December, 2023

CORAM: HON’BLE MS. JUSTICE JYOTI SINGH

Facts of the Case:

The present application has been filed to request a temporary injunction against the Defendants and anyone acting on their behalf. The purpose of this injunction is to prevent the Defendants from engaging in various activities related to the film titled “Shamshera.” These activities include making, producing, distributing, broadcasting, communicating to the public, adapting, telecasting, exhibiting in theaters, and/or showcasing on television or online platforms, including any streaming platform.

The claimant alleges that the film “Shamshera” or any part of it, as well as any other similar work, infringes upon their copyright in a script titled “Kabu na chhadein Khet” (referred to as ‘KNCK’). By seeking this interim injunction, the applicant aims to stop the unauthorized use or reproduction of their copyrighted script by the Defendants until the legal dispute regarding copyright infringement is fully resolved in court.

The Plaintiff argues that the Defendants’ acts amount to infringement of Plaintiff’s copyright under Section 51 of the 1957 Act.

Laws Involved:

Section 51 in the Copyright Act, 1957

When copyright infringed. —Copyright in a work shall be deemed to be infringed—

(a) when any person, without a license granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a license so granted or of any condition imposed by a competent authority under this Act—

(i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or 1[(ii) permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright; or] 1[(ii) permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright; or]”

(b) when any person—

(i) makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or

(ii) distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or

(iii) by way of trade exhibits in public, or

(iv) imports into India,” any infringing copies of the work: 3[Provided that nothing in sub-clause (iv) shall apply to the import of one copy of any work, for the private and domestic use of the importer.] Explanation. —For the purposes of this section, the reproduction of a literary, dramatic, musical or artistic work in the form of a cinematograph film shall be deemed to be an “infringing copy”.

Issue framed by the Court:

Whether the Defendants’ film ‘Shamshera’ infringes Plaintiff’s copyright in the script ‘KNCK’?

Courts Judgement and Analysis:

The Court dismissed the Plaintiff’s application for injunction, as the Plaintiff failed to demonstrate substantial similarity between the two works. The Court held that mere access to the script does not justify a finding of copyright infringement.

The Court also noted that the theme and concept of Plaintiff’s work were not copyrightable, and the alleged similarities between the script and the film were outweighed by the dissimilarities.

Observations made in the judgment will not impact the trial or the final adjudication of the suit on merits.

The Court applied the principle of idea expression dichotomy, which states that common ideas and themes are not protected by copyright. The Court emphasized that the Plaintiff must prove substantial copying of its work in order to succeed in a claim of copyright infringement.

The Court compared the rival works as a whole and found that the dissimilarities between the script and the film outweighed the alleged similarities. The Court also rejected the Plaintiff’s argument that the Defendants’ film copied the basic plot and storyline of the script.

The Court further held that the Plaintiff’s claim of copyright infringement was not supported by clear and cogent evidence.

The Court dismissed the Plaintiff’s application for injunction, finding that the Plaintiff failed to establish a prima facie case of copyright infringement. The Defendants were permitted to continue the telecast of their film on the OTT Platforms.

The Defendants were ordered to file an affidavit disclosing their up-to date revenues earned from the telecast of the film within 6 weeks.

Written by- Aditi

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28 Dec

The Bombay HC Allows The Appeal Partially Regarding The Tribunal’s Order Of The Compensation Amount

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Blog #accident, #BOMBAY HIGH COURT, #compensation, #First Appeal, #tribunal

TITLE: National Insurance Co. Ltd. Vs Mrs. Lauretta Shashin Mogale And Ors.

CORAM: Hon’ble Justice Shivekumar Dige

DATE: 8th December, 2023.

CITATION: First Appeal No.1067 Of 2018

FACTS

On 26th July 2011, deceased Shashin Mogale was proceeding in his car bearing No. MH-14-CK-7387, he was on the way to his house. At that time, at about 1.55 am., a tanker bearing registration No.KA-01-C/2284 came from the opposite direction in rash and negligent manner and gave dash to the car of the deceased. Respondent No.4 was driving the said tanker. The deceased was admitted in the hospital but he succumbed to injuries. On the basis of evidence on record, the Tribunal has considered the salary of deceased at Rs.98700/- per month including arrears.

This appeal is preferred by the appellant-Insurance Company against the judgment and award passed by Motor Accident Claims Tribunal, Pune. The claimants have filed cross-objection for enhancement of compensation. It is the contention of learned counsel for the appellant that while calculating compensation, the Tribunal has considered arrears of salary of the deceased and, on that basis, compensation is awarded, which is not proper. Learned counsel further submitted that the accident occurred due to contributory negligence of the deceased. In the post- mortem report, it is mentioned that there was smell of alcohol. It shows that deceased was under the influence of liquor but this fact is not considered by the Tribunal.

It is the contention of learned counsel for respondent Nos.1 to 3/claimants that the Tribunal has deducted 30% future prospects as income tax, which is not proper. Learned counsel further submitted that consortium amount is not properly awarded, it be awarded. The Chemical Analysis Report is received after the conclusion of the trial. It is produced on record, it does not show that at the time of accident deceased was under the influence of liquor.

LAWS INVOLVED:

304A Of Indian Penal Code: Causing Death By Negligence.

Workmen’s Compensation Act 1923

ISSUES:

Whether there is a case of Contributary Negligence?
Whether the compensation amount decide by the Tribunal was valid or not?

JUDGEMENT:

The Appeal is partly allowed as the Court has deducted arrears amount from salary of deceased as well as some allowance amount from the salary. The cross-objection is partly allowed. The claimants are entitled for enhanced amount of Rs. 1671227/- @ 7.5% interest per annum from the date of filing of claim petition till realisation of the amount. Out of this amount, Rs.1,80,000/- is consortium amount, the claimants are entitled for interest on this amount at 7.5% from 1st November 2017 till realisation of the same.

The appellant-Insurance Company shall deposit the enhanced amount along with accrued interest thereon within 8 weeks after the receipt of this order.

Written by- Sanjana Ravichandran

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