#Gujarathighcourt Archives - Page 18 of 19

30 May

The purpose of the Right to Information Act of 2005 is to facilitate the free flow of information: Gujarat High Court orders the commissioner of police to make the rules established by Section 33 of the Gujarat Police Act, 1951, public.

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Swati Rajiv Goswami vs Commissioner Of Police, … on 17 January, 2023

Bench: Honourable Justice Biren Vaishnav

R/SPECIAL CIVIL APPLICATION NO. 11826 of 2020

Facts

The petitioner asked for permission to peacefully protest the Citizenship Amendment Act of 2019, but the police inspector turned it down. The petitioner requested information from the Commissioner of Police (the “Respondent”) regarding the rules established under Section 33(1)(o) of the Gujarat Police Act, 1951 (the “Act”), which were used to process the petitioner’s permission. The information request was turned down. Later, the petitioner filed this Article 226 of the Indian Constitution petition in an effort to have the respondent’s rules made public under Section 33 of the Act.

The counsel of the petitioner contended that not publishing the rules and orders framed under Section 33(1) of the Act are in violation of Section 33(6) of the Act as well as Section 4 of the Right to Information Act, 2005 (“RTI Act”). Section 4 imposes an obligation on a public authority to maintain all its records duly catalogued and indexed in a manner and the form which facilitates the right to information under this Act

Rules made in accordance with Section 33(1) of the Act must be published in the local gazette and in the affected locality, according to Section 33(6) of the Act. The public authority is required by Section 4(1)(b) of the RTI Act to proactively publish 17 types of information, including the decision-making process it used, the standards it set for performing its duties, and the rules and regulations it controls or that its employees used to perform their duties.

Judgement

The Court noted that “Reading the preamble of the RTI Act, indicates that the Constitution of India has established a democratic republic. Democracy requires an informed citizenry and transparency of information which are vital to its functioning and to contain corruption and to hold Government and their instrumentalities accountable to the governed. There must be a harmonization of conflicting interest while preserving the paramountcy of the democratic ideal, in as much as, when revelation of information in actual practice is likely to conflict with other public interest including efficient operations of the government, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information certain information sought for by the citizen who desire to have it must be provided.”

The petitioner is entitled to know the rules established under Section 33 of the Act and to know the grounds upon which the petitioner was denied permission, the Court found, and the respondent is legally required to publish the information provided in Section 4 of the RTI Act. Since the petitioner will be unable to challenge the permit without this knowledge, it would be a blatant violation of his fundamental right and a statutory right to know and access the law of the land that she infringed.

The Court also stated that the petitioner is entitled to a writ of mandamus for a directive to seek such information, particularly the rules framed under Section 33 of the Act, especially when doing so will help what is obviously the purpose of the RTI Act, i.e., to receive information so as to know what is the procedure followed in the decision-making process and the rules and regulations empowering such decision-making process.

Hence, the Court allowed the petition and directed respondent to publish all the rules and orders framed under Section 33 of the Act on the website.

JUDGEMENT REVIEWED BY AMIT ARAVIND

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30 May

When the crime of murder is committed, an amicable solution between the parties is unwarranted-Gujarat High Court denies bail

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Blog #Gujarathighcourt, bail

Naransinh Amarsinh Bihola v. State of Gujarat…
Bench: Honourable Justice Samir J. Dave

R/CRIMINAL MISC.APPLICATION NO. 21006 of 2022

Date-23/12/2022

Facts

The bench of Justice Samir J. Dave, J decided that when such a serious crime as murder is committed, amicable settlement is unwarranted as it equates to impeding or tampering with the witnesses or the evidence. In the current case, the accused had submitted a request for bail after being charged with crimes punishable by Sections 302(murder) 307(attempt to murder) and section114 of the Penal Code, 1860. As per section 114,

“Whenever any person who if absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence”

Although the ability to grant bail under Section 439 of the Criminal Procedure Code, 1973 is discretionary, the Court noted that this authority must be used wisely.

Judgement

According to the Court, it has long been understood that being held in custody while a trial is ongoing can result in significant hardship. Sometimes it is necessary to hold certain innocent people in custody until trial in order to ensure their appearance at the trial. In these situations, the necessity standard is used. The Court further ruled that punishing someone for an offence for which they have not been found guilty or depriving them of their liberty under any circumstances based solely on the suspicion that they will tamper with the justice system would be quite at odds with the concept of personal liberty guaranteed by the Constitution in this country.

The Court noted that the complainant has filed an affidavit stating that the matter is amicably settled between the parties and if the accused is released on bail, he has no objection. The Court said that such practice is unwarranted, and it amounts to tempering with the evidence or witnesses, when such a serious offence of murder is committed. Thus, the Court held that such an affidavit on oath filed by the complainant cannot be considered, looking to the gravity and severity of the offence committed by the accused person. Hence, the Court rejected the bail application.

JUDGEMENT REVIEWED BY AMIT ARAVIND

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29 May

Under Article 21, the right to food includes the right to food that is hygienic: Gujarat High Court rejects an application to reopen the meat markets in Surat.

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Patel Dharmeshbhai Naranbhai v. Dharmendrabhai Pravinbhai Fofani.

Date : 11/04/2023

CIVIL APPLICATION NO. 10 of 2023 In R/WRIT PETITION (PIL) NO. 133 of 2021

Presided by: HONOURABLE MR. JUSTICE N.V.ANJARIA and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA

Facts

In light of various writ petitions filed before the Supreme Court relating to illegal slaughter houses, their impact on the animals, public health and environment and for enforcement of various laws including food safety and standards laws, closure of illegal slaughter houses operating in contravention of the statutory provisions, the animal transport norms and for formation of State Level Committees to oversee the implementation of these and related laws, the Supreme Court passed various orders in the public interest litigation, and issued directions to Central Pollution Control Board to initiate action against all slaughter houses which are not meeting with the norms and complying with the abattoir rules.

According to the Supreme Court’s directives, unstamped meat stores and establishments that sold or slaughtered it without a licence were subject to closure by the authorities on the grounds that they were run in violation of numerous legal requirements. In light of the aforementioned facts, applications were submitted to the court asking for a ruling authorising the reopening of chicken meat markets in Surat.

Issue

Whether the closing of meat markets violates Article 19(1)(g) of the Constitution and amounts to a restriction on the freedom to free trade?

Judgement

The Court cited the provisions of the Food Safety & Standards Act, 2006, and the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011 (the “Food Act”), stating that meat is one of the foods covered by the Act and that “Meat and Meat Products” are the subject of Regulation 2.5 of the Food Safety and Standards Regulations, 2011. The rules stipulate that food business owners who manufacture, process, store, and sell meat and meat products must adhere to particular hygienic and sanitary procedures. Before being granted a licence to operate, the abattoir must first get a No Objection Certificate (‘NOC’) from the local authority.

According to the court, the applicants’ shops were shut down because they didn’t follow the rules of the applicable legislation, and permission to reopen the meat shops couldn’t be given because the shop owners continued to break the rules. The Court further stated that any basic right under Article 19(1) is subject to the reasonable limitations set forth in Subparagraphs (2) through (6). According to the statement, the provisions of the Food Act apply to the meat industry and meat shops. The regulatory and hygienic measures included in the said act for meat shops and slaughterhouses shall function as reasonable limitations on the freedom of the vendors of meat and slaughterhouse owners to conduct business.

The Court said that the freedom to trade or right to do business have to yield the public health norms and the restrictive compulsions needed to be enforced in larger public good. The right to free trade in food items like meat, or any such food must be sub-serving to public health and food safety requirements….

The Court also made reference to the consumer’s right to food safety, stating that this right is compatible with Article 21 of the Constitution just as the right to food is. The Court further declared that the State authorities must fulfil their commitment to assure such safe food by putting the food safety standards and other regulatory measures outlined in the various statutes into practise and enforcement. Therefore, it would be difficult to allow all the meat markets and slaughterhouses that have been shut down by the authorities due to their failure to adhere to the licencing and regulatory standards, food and safety requirements, and pollution control requirements to reopen on large grounds.

Thus, the Court dismissed the applications and observed that meat shop owners, meat vendors or slaughter house owners ensuring the compliance of regulatory norms should be permitted to reopen their shops and establishments and run their business….

JUDGEMENT REVIEWED BY AMIT ARAVIND

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29 May

The Gujarat High Court affirms the judgement of the examination committee to cancel the final test of a law student at Nirma University for using unfair techniques

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Karthik Deepak Sharma Vs Director General, Nirma University

Date : 28/03/2023

R/Special Civil Application No. 3752 Of 2023

Presided by: HONOURABLE MS. JUSTICE SANGEETA K. VISHE

The Single-Judge Bench of Sangeeta K. Vishen, J., rejected the petitioner’s request to be permitted to appear in the examination and held that using unfair means in examination is a misconduct while hearing an application in which the petitioner was penalised and the result of all the examinations of semester VII of B.Com. LL.B. (Hons.) December 2022 was cancelled by Examination Reforms Committee for using unfair means in Taxation Law examination.

Facts

The petitioner had appeared in the semester VII examination of Law of Taxation and was found with 19 printed materials, as an outcome, the result of all the examinations attended by the petitioner were declared cancelled by the Examinations Reforms Committee.

The Court noted that Section 2 of the Rules and Regulations booklet issued by Nirma University/respondent is pertinent for application to the matter at hand; it addresses academic dishonesty at examinations, tests, and assignments and sanctions in cases of using unfair means; the nature of the sanctions is the cancellation of the results of all examinations for the relevant courses. It was also observed that the petitioner was caught using a mobile device in the exam room, which is expressly forbidden by the academic regulations, while taking the Family Law II end-of-semester exam for Semester VI. He said that he accidentally left his phone in his pocket but realised it right away and handed it over to the security guard.

Judgement

The Court said that the petitioner’s act of possessing 19 printed materials in the semester end examination of Law of Taxation, was a second-time misconduct. The Court further stated that the petitioner overlooked that simply owning a mobile phone constitutes misbehaviour, for which the punishment specified is the cancellation of all examination results in accordance with the rules and regulations of the educational institution.

As a result, the Court ruled that the petitioner had engaged in misconduct by possessing an electronic device, regardless of whether it was being used or not. Hence, Nirma University had every right to rely on Regulation 5(iv), and all of the examination results for the relevant courses were voided. Therefore, there is no justification for any type of temporary protection that would let the petitioner to take the exam.

The Court interpreted Regulation 3 and suggested that if the student is found possessing any kind of electronic devices, during the examination irrespective of whether it was used or not used, the same was termed to be a misconduct and,thus, one is not to go only by the penalty imposed but the nature of the malpractices committed by the petitioner as well….

Thus, the Court rejected the petitioner’s application to allow him to appear in the examination.

JUDGEMENT REVIEWED BY AMIT ARAVIND

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26 May

A person’s right to life and liberty cannot be invoked if they are not physically present in India: Gujarat High Court

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Dhanraj Rajendra Patel vs Union Of India on 6 January, 2023

Bench: Honourable Justice Biren Vaishnav

R/SPECIAL CIVIL APPLICATION NO. 26810 of 2022

Facts

The petitioner, a citizen of the United States, submitted this petition in accordance with Article 226 of the Indian Constitution in order to reverse and annul the notice that the Indian Bureau of Immigration issued to him denying him entry. The petitioner’s advocate argued that the Civil Authority has the authority to deny a foreigner entry into India if, among other things, it is satisfied that the foreigner has been found guilty of an extradition offence under the terms of the Extradition Act, 1903.

Judgement

The Law on Extradition and the Foreigners Act, according to the Court, are two separate Acts. According to extradition laws, the goal is to handover individuals who are suspected of committing specific crimes on the territories or who have already been found guilty of those crimes by their Courts for prosecution or punishment. The Foreigners Act of 1946, on the other hand, grants the authority to deport a foreign national.

The petitioner has been found guilty of being a sex offender, according to the court, and this is also noted on his passport. Guidelines stating that foreigners who are morally depraved are not permitted to enter Indian territory have been issued in the exercise of a statutory power derived from Section 3 of the Foreigners Act, 1946. Section 3 confers powers on the Central Government to make orders. As per Section 3(1)

“The Central Government may by order make provision, either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner, for prohibiting, regulating or restricting the entry of foreigners into 2[India] or, their departure therefrom or their presence or continued presence therein.”

Hence, the Central Government has the power to impose laws that are upheld to bar such individuals from entering Indian territory. Before he could do so, the petitioner was deported to Dubai by the agency ie the airline, under section 6 of the Foreigners Order 1948. As per section 6, if a foreigner who has been refused permission to enter India is on board an aircraft which has arrived in India, a civil authority may require the pilot of the aircraft to deboard him.

The Court also cited Akil Valibhai Piplodwala (Lokhandwala) v. District Superintendent of Police, SCA No. 13566/2022 dated 18-07-2022, and held that the petitioner, an American passport holder, was ineligible to invoke Articles 14 and 19 of the Indian Constitution because she had deplaned and was in Dubai.

The petitioner’s father initiated and signed the current petition. The Court ruled that when a person is not physically present in India, his or her life or freedom cannot be asserted on his or her behalf.

Hence, the Court dismissed the petition.

JUDGEMENT REVIEWED BY AMIT ARAVIND

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