Uncategorized Archives - Page 2 of 72

5 Mar

The Accused cannot be held guilty under the NDPS Act if the evidence collected by the Police Officers is full of contradictions: Supreme Court

Uncategorized # Supreme Court, #Ganja, #Justice Sandeep Mehta, #Narcotics substances, #NDPS Act, #Section 52 of NDPS Act, justice B.R. Gavai

Case Title – Mohammed Khalid and Another vs The State of Telangana

Case No. – Criminal Appeal No(s). 1610 of 2023 with Criminal Appeal no(s). 1611 of 2023

Decided On – March 01, 2024

Quoram – Justice B.R. Gavai and Justice Sandeep Mehta

The issue in this case was regarding the conviction of appellants under Section 8(c) read with Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentencing each of them to a rigorous imprisonment for a period of ten years with a fine of Rs.1,00,000/-

In the case of Mohammed Khalid and Another vs The State of Telangana, the appellants challenged the decision of The High Court of Telangana on various grounds. They further, contested that the Learned Trial court had committed an error in wrongly prosecuting them under the Narcotic Drugs and Psychotropic Substances Act, 1985

Facts of the Case

The Inspector of Police, Mr. M. Srinivasa Rao upon receiving intercepted the vehicle and found A1 (Mohd. Ishaq Ansari) and A-2 (S.A. Shafiullah) in the vehicle. The inspectors are alleged to have seized three bundles of ganja weighing around 80 kgs in the vehicle. Further, three samples weighing about 50 grams were drawn from each bundle of contraband and remaining muddamal ganja was seized. Notably, one part of this sample was handed over to A-1 and A-2. Based on these proceedings, a complaint came to be lodged and a Criminal case was registered and investigation on the same was commenced.

Out of the three samples that were collected, one part of sample was forwarded to the Forensic Science Laboratory to determine the type of narcotic substance. The reports from FSL confirmed that the collected sample was of ‘Ganja’ as defined under Section 2(b) of the NDPS Act.

The Investigating Officer, upon the interrogation of A1 and A2, apprehended the accused A-3 (Mohd. Khalid) and A-4 (Md. Afsar). Subsequently, a charge-sheet was filed against the four accused in the trial Court.

The trial Court upon examination of witness and documents on record proceeded to convict and sentence the accused under Section 8 read with Section 20(b)(ii)(c) of the NDPS Act

Being aggrieved by their conviction, the accused preferred an appeal before the High Court of Telangana. The HC upheld the judgment of trial court and rejected their appeal. The A-1 (Mohd. Ishaq Ansari) expired during the pendency of appeal before the High Court and hence the charges against him were abated.

The other three accused challenged this decision of High Court. The A-3 and A-4 have preferred Criminal Appeal No. 1610 of 2023 and A-2 has preferred Criminal appeal No. 1611 of 2023 before the Supreme Court.

Legal provisions

Section 2(b) of the NDPS Act – Defines ‘Cannabis Ganja’

Section 8(c) of NDPS Act – Prohibition of certain operations

Section 20(b)(ii)(c) of NDPS Act – Person found in possession of cannabis in a commercial quantity

Section 43 of the NDPS Act – Power of seizure and arrest in public place

Section 49 of the NDPS Act – Power to stop and search conveyance

Section 52A of the NDPS Act – Disposal of seized narcotic drugs and psychotropic substances.

Section 313 of Code of Criminal Procedure, 1973 – Power to examine the accused

Section 374(2) CrPC, 1973 – Appeal from convictions.

Section 25 of the Evidence Act – Confession to police officer not to be proved.

Submissions on behalf of the accused appellants

Learned counsel representing A-2(S.A. Shafiullah) submitted that the two independent panch witnesses i.e. Shareef Shah and Mithun Jana who were associated in the recovery proceedings, were not examined in the evidence. The Seizure Officer made no effort to segregate the chillies from the alleged contraband and contended that the recovered contraband ganja did not fall within the category of commercial quantity.

The facts reveal that the Seizure Officer who collected a total of three samples, handed over one part of the sample to the accused. But, three distinct sample packages were found at the FSL for testing. The counsel hence raised doubt regarding the sanctity of the samples collected by the Seizure Officer.

The Counsel also highlighted the loopholes in the investigation and unveiled the misappropriation of evidence by the Police Inspectors in the course of trial.

The Learned counsel representing A-3 (Mohd Khalid) and A-4 (Md. Afsar) urged that these accused were not found present at the spot at the time of seizure. They were arrested merely on the basis of the confessional statements of A-1 and A-2. Thus, he submitted that their conviction is illegal and unsustainable on the face of the record.

Submissions on behalf of State

The Learned counsel representing the State opposed the submissions advanced by learned counsel for the appellants. He urged that two Courts, i.e., the trial Court as well as the High Court were right in convicting the appellants. He thus implored the Court to dismiss the appeals.

Courts Observation and Analysis

The court considering the submissions advanced and analyzing the evidence on record made the following observations. The court pointed out that the contraband recovered from three bags collected as evidence contained the ganja as well as green chillies. Thus, the court concluded that there is no certainty in adducing that the recovered ganja weighed 80 kgs in actuality.

The bench observed that the two independent panch witnesses, were not examined in evidence and also no explanation was given by the prosecution for the same. The prosecution failed to satisfy the court regarding the safe custody of the sample packets from the time of the seizure till the same reached the FSL.

The court also pointed out that the very possibility of three samples being sent to FSL is negated by the fact that the Seizure Officer handed over one of the three collected samples to the accused. This discrepancy completely shatters the prosecution case. The court further noted that the mandate under Section 52A of the NDPS Act was not satisfied.

The court with regard to the case against the accused A-3 and A-4 observed that the entire case of prosecution against them was merely based on the interrogation notes of A-1 and A-2, which is hit by Section 25 of the Evidence Act.

Judgement

The Court opined that the prosecution has miserably failed to prove the charges against the accused. The evidence of the police witnesses was full of contradictions and unconvincing. The conviction of the accused appellants as recorded by the trial Court and affirmed by the High Court is illegal on the face of record and suffers from highest degree of perversity. Therefore, the court acquitted the appellants of all the charges.

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Judgement Reviewed by – Keerthi K

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2 Mar

DISPLAY OF NAME AND NATURE OF BUSINESS DOES NOT AMOUNT TO ADVERTISEMENT: SUPREME COURT

Prime Legal

Uncategorized # Supreme Court, #advertisement, #advertisement tax, #Article 226, #civil appeal, #high court of madhya pradesh, #indore municipal corporation, #justice aravind kumar, #sign boards

In precedence of the case Bharti Airtel Vs. State of Madhya Pradesh the High Court of Madhya Pradesh declared the demand notices sent to the appellant for the payment of advertisement tax to be valid. This was challenged in the Hon’ble Supreme Court.

The appellant is a dealer of Hyundai passenger cars in Indore. He had a sign board outside the premise of the showroom displaying the business name and address of the place. Respondent number 2 issued a notice demanding Rs. 2,03,850 as advertisement tax under Section 189-A of the Municipal Act, 1965. The appellant contested that a sign board merely displaying the name of the business does not amount to “advertisement”. The objective behind putting up the sign board was only to inform the public about the business and what it deals in. The appellant filed a writ petition under article 226 of the Constitution of India but the High Court referred to the verdict given in the Bharti Airtel case and dismissed the petition. The appellant received notices to pay advertisement tax not only for the shop located within the jurisdiction of the Indore municipal corporation but also for the one located outside its jurisdiction.

The counsel for appellant contends that the facts in the Bharati Airtel case are not analogous to this case. This case deals with the issue whether a third party or a tax agency collect advertisement tax. Whereas in the present case, the issue is whether displaying the name and nature of the business amounts to advertisement. The counsel for appellant further contends that if tax is levied for the same it would be violative of article 19(1)(A) and 19(1)(G) of the Constitution.

The Indore municipal authority under sec 132(6)(1) of the municipal corporation act contends that it has rightfully demanded the advertisement tax from the appellant. The particular section states that the corporation can levy any tax contingent upon any special or general order taken by the state government, namely, ‘a tax on advertisement other than advertisements published in newspapers’ (Sub-clause (l)).

The court referred to the case of ICICI Bank and Another Vs. Municipal Corporation of Greater Bombay (2005) 6 SCC 404 which held that ‘advertisement’ must have a commercial aspect to it. It must attract the attention of the people in order to persuade them to engage in the activity of buying. Advertisement aims at providing information and is of a good or service. However, only displaying the name of the company does not amount to advertising unless it is a trade mark or trade name.

The hon’ble supreme court states that the sign board entailed the name of the business which itself is indicative of the kind of product the appellant deals with. Solely displaying the name of the enterprise or the business would not amount to advertising unless the enterprise in question in some way persuades the customer to purchase. Display boards and name boards are essential for the purposes of identification. If they are counted as advertisements, it would be impossible for customers to even identify such businesses. The context and circumstances must be taken into account.

In this case, the legislative provisions do not permit the municipal corporation to levy tax on sign boards. The objective of sign board is just to convey information about the kind of products dealt with by a business enterprise. The name of the business enterprise of the appellant shows what car he deals in and nothing more. It does not cause the public to purchase the products.

The Hon’ble court further stated that both the parties had objections to the demands made and they hastily rushed to the High Court under its extra ordinary jurisdiction. However, the court does not support the dismissal of the petition by the High Court. The outcome of the case remains unchanged and the first respondent was asked to review the objections filed by the appellant within eight weeks. In case, they decide against the appellant they cannot enforce the demands for another eight weeks. The appellants have the liberty to challenge any decision given by the Commissioner.

Judgement Analysis written by- Rashi Hora.

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20 Feb

The selection process taken up by army officials in promoting women officers is arbitrary: Supreme Court

Prime Legal

Uncategorized #army, #permenantcommssion, #selectionprocess, #womenpromotion

Case title: Nitisha and Others Vs Union of India and Others

Case no.: Writ Petition (Civil) No 1109 of 2020

Decided on: 03.11.2023

Quorum: Hon’ble Chief Justice Dhananjaya Y Chandrachud, Hon’ble Justice Manoj Misra, Hon’ble Justice J B Pardiwala.

Hon’ble Justices observed that “the attitude has been to find some way to defeat the just entitlement of the women officers. Such an approach does disservice to the need to provide justice to the women officers who have fought a long and hard battle before this Court to receive their just entitlement under the law. Even after the judgment in Nitisha case, the women officers have been compelled to move this Court repeatedly for the realization of their rights.”

BRIEF FACTS:

The issue was the promotion of female Indian Army officers who had been granted Permanent Commissions in accordance with the Court’s decision in Nitisha case. They were not considered for promotion to Colonel by selection since their CRs were not taken into account. The CRs of the female officers were not evaluated because the cut-off date for CRs was the same as that of the male batches when they were considered by the No 3 Selection Board. As a result, all women officers’ CRs from the 1992 batch onwards till 2005 were not evaluated, and more recent CRs were removed. Women officers in the Indian Army, aggrieved, approached the Court.

COURT ANALYSIS AND JUDGEMENT:

The court has categorically said that the way in which the candidates were refused empanelment for the position of Colonel on a selection basis is arbitrary. Aside from violating the fundamental principles of fairness enshrined in Article 14 of the Constitution, the entire approach has been inconsistent with both this Court’s decision in Nitisha and the applicable policy framework established by Army authorities.

The court also directed army officers to take the actions specified by the court. Therefore, the court disposed the application.

Written by – Surya Venkata Sujith

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20 Feb

Presumption, Proof, and Property: Supreme Court Sheds Light on Adoption and Will Dispute

Prime Legal

Uncategorized #supremecourt #judgement #adoption #willdispute #JUSTICEC.T.RAVIKUMAR #JUSTICESANJAYKUMAR

TITLE: MOTURU NALINI KANTH V. GAINEDI KALIPRASAD (DEAD, THROUGH LRS.)

CITATION: CIVIL APPEAL NO. 2435 OF 2010

DECIDED ON: 20 NOVEMBER 2023

CORAM: JUSTICE C.T. RAVIKUMAR AND JUSTICE SANJAY KUMAR

Hon’ble Justices C.T. Ravikumar and Sanjay Kumar state that T “the statute allowed some amount of flexibility, lest it turns out to be solely dependent on a registered adoption deed. The reason for inclusion of the words ‘unless and until it is disproved’, per this Court, have to be ascertained in proper perspective and as such, the presumption cannot but be said to be a rebuttable presumption. This Court further noted the mandate of Section 11 (vi) of the Act of 1956 and held that the ‘give and take in adoption’ is a requirement which stands as a sine qua non for a valid adoption”.

Brief Facts:

In the dispute over Venkubayamma’s properties, Nalini Kanth claims through adoption and a Will, contested by her grandson. Witnesses provide conflicting testimonies, one coerced into signing an affidavit. Legal analysis emphasizes proper attestation for Wills and prioritizes evidence in adoption cases. Suspicious circumstances surround the documents, demanding strong, unsuspicious proof. The court highlights compliance with adoption laws and challenges to registered deeds. Evidence fails to conclusively prove Nalini Kanth’s adoption, with discrepancies and doubts, leading to the denial of her claim to the properties.

Court’s Observation and Analysis:

The Trial Court and High Court scrutinize the evidence, emphasizing the legal requirements for proving a Will. The discussion underscores the importance of proper attestation by witnesses, citing Sections 63, 68, and 71 of relevant Acts. Various court cases are cited to highlight the significance of proving the authenticity of a Will following legal procedures.

The Evidence Act is invoked, stressing the need for more than just a random witness to prove a Will. The suspicious circumstances surrounding the Will and Adoption Deed raise doubts about their validity, leading the court to demand strong evidence free of suspicion. The court prioritizes evidence over rigid rules in adoption cases, emphasizing the importance of proving adoption through traditional ceremonies.

Registered adoption deeds are presumed valid but can be challenged with evidence. Compliance with adoption laws is deemed mandatory, and challenges necessitate disproving the registered deed with substantial evidence. Doubt is cast on a specific adoption case due to secretive circumstances and inconsistencies in testimonies and photographs.

The court concludes that the evidence does not conclusively prove Nalini Kanth’s adoption, highlighting discrepancies, inconsistencies, and doubts about the validity of the adoption. Consequently, Nalini Kanth is not considered an heir by adoption and is not entitled to claim rights to Venkubayamma’s properties.

Written by- Komal Goswami

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16 Feb

Electoral bond scheme no more valid : Supreme court

Prime Legal

Uncategorized

Electoral Bond scheme

The Supreme Court has found India’s Electoral Bond Scheme illegal, marking a watershed moment. This ruling, heralded as a landmark step toward electoral transparency and accountability, has far-reaching consequences for the country’s political financing system. a five-judge constitution bench ruled that electoral bonds violate citizens’ right to access information held by the government. Chief Justice of India DY Chandrachud said the Right to Information (RTI) law is “not confined to state affairs but also includes information necessary for participatory democracy”. “Political parties are relevant units in the electoral process and information about funding of political parties is essential for electoral choices,” he added. The court directed the government-run State Bank of India (SBI) not to issue any more such bonds, to provide identity details of those who bought them, and to give information about bonds redeemed by each political party to the Election Commission within a week. It also observed that electoral bonds were not the only scheme to curb the use of cash or “black money” and asked the government to explore other alternatives. “Citizens have a duty to hold the government accountable for their actions and inactions, and this can only happen if the government is open and not clothed in secrecy,” the court said.

Electoral Bond:

The electoral bonds system enabled corporations and individuals to make anonymous donations to political parties by acquiring electoral bonds from the State Bank of India (SBI). The SBI had sole access to the information of persons who had purchased electoral bonds. Encashed bond proceeds were to be deposited in the Prime Minister Relief Fund. The system was created in 2017 by the then Finance Minister Mr. Arun Jaitly to address the issue of secrecy in political party fundraising and to bring in transparency in political parties funding.

Voters right of information

The scheme was deemed to infringe the basic right to information under Article 19(1). Citizens have the right to know about candidates, and they should be able to learn about political party that comes into power and the finance supporting them as well. Anonymous donations through electoral bonds impede openness and accountability. Any corporation or company could be flooding in crores of amount to a political party and yet so far, the party had no obligation to disclose information about any funding received and their sources.

Restriction to RTI

The right to information u/s 19 can be restricted through art 19(2) which provides limitation to freedom of speech and expression. One of the fundamental purposes of imposing such restriction was to curd the flow of black money i.e. The funds earned through illegal activity. Even if the goal of combating black money is justified, even if the goal of combating black money is justified, it is insufficient in light of the constraints imposed by this plan. Additionally, it stated that this system is not the only way to combat dark money in electoral finance. Other solutions are less limited and also serve this purpose. To be regarded lawful, the government scheme must fundamentally meet three criteria. This was based on the proportionality test established by the court in its 2017 decision in the KS Puttaswamy case, which concerned the right to privacy. For instance, there must be a law. The electoral bond key was created by the Finance Act, which included a number of revisions to the Income Tax Act and the Representation of the People Act.

Removed restrictions

The original Section 29C required political parties to publicly disclose contributions in excess of ₹20,000, received even through cheques and the electronic clearing system. The amendment, however, allowed a complete exemption for political parties to publish contributions received through electoral bonds. The amended Section 13A freed parties from the obligation of keeping a detailed record of contributions received through electoral bonds. Before the amendment, Section 182 had mandated that companies could donate only up to 7.5% of three years of their net aggregate income. The amendment lifted this cap and made room for unlimited and anonymous corporate donations to political parties.[1]

Doner Protection

The court addressed whether the right to donor privacy encompasses information regarding a citizen’s political affiliation. If so, would the financial gift to a political party considered political information In the Puttaswamy decision, the court stated that the right to informational privacy includes political affiliation. Political expression begins with the formation of political convictions, and it cannot be freely articulated without the secrecy of political allegiance. The state can utilize information to repress dissent and discriminate against individuals by denying them jobs. The lack of privacy regarding political affiliation would disproportionately affect people whose political opinions differ from those of the mainstream. Not granting privacy in this case might be devastating, since it could be used to deprive parties by voter. The court noted that the funding given to parties would essential be due to a reason being their support to the political party and further reiterated that the purpose behind their funding.

Way forward

With the Electoral Bond Scheme declared unlawful, there is an urgent need to review India’s political finance environment and develop robust measures to promote openness and accountability. To restore public trust in the democratic process, political parties must adopt stricter disclosure standards and engage in ethical fundraising activities. The government, in conjunction with all stakeholders, should investigate alternative arrangements for political fundraising that adhere to the ideals of transparency, justice, and accountability.

Conclusion

The Electoral Bond Scheme is a watershed point in India’s quest for electoral reform. Its implementation has prompted a heated discussion regarding the boundaries of political funding and the ideals that support democratic governance. As stakeholders debate the future of the program, the importance of transparency, accountability, and justice in political fundraising remains vital. Finally, the destiny of the Electoral Bond Scheme will affect the course of India’s democratic progress in the years ahead.

[1] THE HINDU https://www.thehindu.com/news/national/electoral-bonds-scheme-unconstitutional-sbi-should-reveal-the-details-of-donors-rules-sc/article67848211.ece

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