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Bail Refused to Defendant Charged Under UAPA for Supporting ISIS Ideology and Organizing Illegal Weapons: Delhi High Court

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Case title: Jamsheed Zahoor Paul v. State of NCT of Delhi

Case no: CRL.A. 51/2024

Dated on: 24th April, 2024

Quorum: Hon’ble Mr Justice Suresh Kumar Kait and Hon’ble Mr. Justice Manoj Jain

Facts of the case:

Special Cell (New Delhi Range), Lodhi Colony received information that two persons i.e. Parvaiz Rashid Lone and Jamsheed Zahoor Paul (appellant herein) were radicalized youths of Jammu & Kashmir, having allegiance to banned terrorist organization ISIS/SI/DAESH. As per intelligence inputs, they had procured arms and ammunition from UP for their cadres for executing some terrorist act in Jammu & Kashmir and would come at Netaji Subhash Park, near Lal Quila (Red Fort), Delhi on 07.09.2018 to proceed to Kashmir. Both the aforesaid named suspects were found moving towards Lal Qila. Search of the appellant yielded recovery of one pistol, containing five live cartridges in its magazine. From the possession of Parvaiz Rashid Lone (A-1) also, one pistol was recovered. These were seized. The police tracked them. They were found to be juvenile in conflict with law (JCL) and, therefore, separate report was prepared against them, which was filed before concerned Juvenile Justice Board (JJB). During investigation, both the accused divulged that they were propagating ideology of terrorist outfit ISIS in India and were in touch with another ISIS militant, namely, Abdullah Basith. Though, initially, FIR had been registered for commission of offence under Section 25 Arms Act, after detailed investigation and on the basis of the incriminating material collected during investigation, penal provisions of Section 18 & 20 of Unlawful Activities (Prevention) Act (UAPA) were added. Both the accused were accordingly charge-sheeted for commission of offences under Section 25 Arms Act and for Sections 18 & 20 of UAPA. Main charge-sheet was submitted on 28.02.2019. Appellant had earlier also moved one application seeking bail which was dismissed and it was withdrawn on 06.06.2019. He moved another bail application which, too, was dismissed on 01.05.2020, feeling aggrieved, he preferred Criminal Appeal 345/2021 which was, however, not pressed and resultantly, the same was dismissed by this court on 31.01.2022 charges were framed on 25.04.2022. It was thereafter only that the appellant moved another bail application which also did not find favour and was dismissed by the learned trial court. When Appellant was interrogated, he revealed names of various cadres of ISIS (J&KModule) with whom he was in touch through social media, Black Berry Messenger (BBM) and Facebook etc. Some of such cadres of ISIS had already been shot dead in encounter. The mobile phones, recovered from both the accused, were sent to CERT-In for retrieval of data and its forensic analysis. Such analysis indicated that they both were not only involved in procuring sophisticated weapons for banned terrorist organization but also shared information about the movement of Army to other terrorists in Kashmir. Role, involvement and complicity of the appellant also stood exposed whose profile picture on BBM contained four terrorists, two of whom carrying AK-47 Rifles.

Contentions of the appellant:

According, to the learned counsel for appellant, allegations on record, even if those are taken on their face value, do not show commission of any offence under Section 18 & 20 of UAPA and at best, without admitting anything, it can be said to be a case of recovery of arms. It is contended that though the charges have been ascertained by the learned Trial Court and these have not been assailed so far, it is still legally permissible for the appellant to seek bail and to demonstrate that the bar provided under Section 43D (5) of UAPA does not stand attracted. There is no material to show that appellant had indulged into any unlawful or terrorist act, much less attribution of any overt act on his part. The entire case of prosecution is dependent upon the disclosure statements of the accused persons and these statements have no evidentiary value, being inadmissible in law. There is nothing to indicate that any message or BBM chat retrieved from the electronic device of the appellant had any potential to indicate that he was in contact with any terrorist. Appellant could not be branded as “terrorist‟ or a “person involved in terrorist act” merely on the basis of the recovery of a pistol and, therefore, invocation of draconian provision of UAPA is totally mis-founded and unwarranted. There is nothing to indicate that the appellant was a member of ISIS or their purported fronts. There is nothing to suggest that he was radicalized and was associated or was otherwise furthering the activities of ISIS. Merely because there was some BBM Chat retrieved from the electronic devise of his co-accused, appellant could not have been held to be a co-conspirator. Mere framing of charge does not create any embargo against grant of bail as the consideration for framing the charge is different from the one required for grant of bail. At the stage of consideration of bail, Court is merely required to undertake surface-level analysis of probative value of the evidence in order to satisfy test of “prima facie true” and if such analysis is carried out, it would clearly go on to show that there is no admissible evidence on record indicating commission of offences under Section 18 & 20 of UAPA. Appellant has undergone incarceration for more than five and half years and the trial is not likely to conclude any time soon and, therefore, his fundamental right as enshrined under Article 21 of the Constitution of India has been seriously jeopardized, entitling him to be released on bail on that count alone.

Contention of the respondent:

There are serious allegations against the appellant and the learned Trial Court has already come to a definite conclusion that there is a prima facie case against him for offences under Section 18 & 20 UAPA. According to the respondents, there are following clearcut allegations and if all these allegations are read conjunctively, it would clearly reveal his complicity qua offences under Section 18 & 20 UAPA. One loaded pistol was recovered from his possession and he disclosed that he had purchased the same from four juveniles. Such fact was found to be correct as the police was able to reach those juveniles and they were apprehended and admitted that weapons in question had been sold by them to the accused persons, in lieu of money. Appellant was found in possession of two electronic devices and when the data was retrieved, it was found that he was found using Black Berry Messenger for communicating with his associates. His BBM ID was deciphered and the profile picture of Black Berry Messenger depicted four terrorists holding AK47 rifles and pistols in their hands. Appellant and his co-accused had procured illicit arms and had come to Delhi together and were to leave for Kashmir together in furtherance of their conspiracy. BBM chats retrieved from the electronic devices from his co-accused clearly suggested that there was incriminating communication of precarious nature between him and Adil Thokar. Appellant had, on the directions of Omar @ Umar Iban Nazir, met one Abdullah Basith. Such Abdullah Basith was later arrested by NIA and the fact of there being a meeting between them was confirmed and substantiated by NIA. Motive of such meeting was to procure weapons for terrorist activity and the record of Shaka Guest House confirmed his such visit. appellant with his co-accused not only conspired to commit terrorist act but also procured weapons and in pursuit of their abominable objective for perpetuating terror, they both, on the direction of Adil Thokar and Umar Iban Nazir, arranged weapons through JCLs and came to Delhi via flight and even sent the images of recovered pistol to their handlers through BBM. The BBM chats from the electronic device of his coaccused clearly indicated that he was even discussing about the movement of Army in Kashmir which clearly exposes their nefarious design.

Legal Provisions:

Section 18 & 20 of UAPA- Punishment for Organizing Terrorist Camps-Anyone who engages in conspiracies, preparations, or attempts to organize a terrorist camp or provides encouragement, advice, or instigation for such activities shall be subject to imprisonment. The term of imprisonment shall not be less than five years, but it may extend to life imprisonment. Additionally, a fine may also be imposed. Punishment for Being a Member of a Terrorist Gang or Organization If an individual knowingly becomes a member of a terrorist gang, organization, or supports such entities, they shall be liable for punishment. The imprisonment term shall not be less than five years, but it may extend to life imprisonment. Furthermore, they may also be fined. Section 43D(5) of UAPA- makes it virtually hard to grant a bail.Section 10 of Evidence Act- pertains to the admissibility of evidence in cases involving conspiracy.

Issue:

  1. Whether in view of the fact that charges have already been framed and such charges have not been challenged by the appellant, whether bail plea can be considered and whether the court can go on to opine that there are no reasonable grounds for believing the accusation to be prima facie true?
  2. What should be the level of scrutiny for believing the same? Whether the appellant has been able to show that there is no prima facie case against him? Whether despite such statutory bar being in place and when prima facie is found to be made out, bail can still be granted in order to safeguard his fundamental rights.

Court analysis and Judgement:

The Hon’ble Supreme Court in Gurwinder Singh vs. State of Punjab & Anr. 2024 SCC On-Line SC 109, the impact of Section 43D (5) of UAPA was delineated and it was observed that the conventional idea in bail jurisprudence – bail is the rule and jail is the exception – does not find any place in UAPA. It further observed that exercise of general power to grant bail under UAPA is severely restrictive in scope. It went on to hold that in view of said statutory bar contained under Section 43D (5) of UAPA, if the
offences fall under Chapter IV and/or Chapter VI of UAPA and there are reasonable grounds for believing that the accusation is prima facie true, bail must be rejected as a rule. Gurwinder Singh (supra) also discussed National Investigation Agency v. Zahoor Ahmad Shah Watali: 2019 SCC On-Line SC 461 which lays down elaborate guidelines about the approach that the Courts must partake in, while considering bail application under UAPA. In context of the meaning attributable to “prima facie true‟, it observed that material collected by the investigating agency, on the face of it, must show the complicity of the accused in relation to the offence and must be good and sufficient to establish a given fact or chain of facts constituting the stated offence, unless rebutted or contradicted by other evidence. It also observed that at the stage of giving reasons for grant or rejection of bail, the elaborate examination or dissection of evidence was not required and the Court is merely expected to record a finding on the basis of broad probabilities. Thus, once charges are framed, it can be easily assumed that there is a very strong suspicion against the accused. Therefore, in such a situation, the task of any such accused becomes much more onerous and challenging as it is never going to be easy for anyone to satisfy that the same set of material, which compelled the court to frame charges on the basis of strong prima facie case, would persuade it to hold to the contrary, by declaring that such accusation was not prima facie true. Be that as it may, there can never be any restriction or embargo on moving application seeking bail. Such unfettered right remains available as long as the proceedings are alive. Moreover, in view of specific observations made in National Investigation Agency v. Zahoor Ahmad Shah Watali (supra) as elaborated in Gurwinder Singh (supra), Court can always consider such bail application, even after framing of charges, the rider being the onus on accused would be much more rigorous in such a situation. The first two facets stand answered accordingly. As per allegations appearing on record and facts and circumstances placed before the court, the appellant was continuously in touch with his co-accused, travelling with him and arranging weapons. He was in touch with militants as well and met one of them in Delhi. Conspiracy, as the cliché goes, is hatched in secrecy and very rarely, there would be any visible evidence suggesting clear-cut conspiracy. On most of the occasions, conspiracy has to be inferred by connecting dots from bunch of circumstances. Moreover, Section 10 of Evidence Act cannot be kept aside which visualizes such type of situation and makes the actions and the statements of coconspirator to be relevant as against the others. Such action or statement can even be used for proving the existence of conspiracy. Thus, at this stage, appellant does not seem to be in any position to wriggle out of the statutory bar contained in proviso of Section 43D (5) of UAPA as there are clear-cut allegations which go on to indicate that accusation against him is prima facie true. This observation is based on broad probabilities and surface analysis of material collected by respondent. Each case has to be evaluated in the backdrop of its factual background. Moreover, in view of our forgoing discussion and material on record, the appellant seems part of conspiracy and when a full-fledged trial is already underway, we would refrain from embarking upon a mini-trial to dissect each circumstance, threadbare. The appellant was in touch with cadres of ISIS which is sufficient to give insight of his culpable mind. In Arup Bhuyan v. State of Assam, (2023) 8 SCC 745, it has been observed that mere membership of banned organization is also sufficient to incriminate, without there being any overt act. Moreover, the factum of connection and association with any banned outfit has to be inferred from the attendant circumstances and the activities of the person concerned. There will never be a tangible piece of evidence or any kind of documentary proof in this regard, particularly once any such organization is banned. Learned counsel for the appellant has prayed that accused has already undergone incarceration for more than 5 ½ years and trial is not likely to conclude in near future. It is argued that he was just 19 years of age when he was arrested and at that time, he was at an important threshold of his educational and professional career. It is argued that though case is already at the stage of trial and the prosecution has examined nine out of cited twenty-seven witnesses, there is no likelihood of case getting disposed of in near future and, therefore, on the strength of Union of India v. K.A. Najeeb, (2021) 3 SCC 713, it is prayed that despite the aforesaid statutory bar, Constitution Court can always grant bail so that the right of speedy trial and that of life and liberty do not stand defeated.
Thus, as per K.A. Najeeb (supra), despite the above statutory restriction contained in UAPA, the Constitutional Courts can consider grant of bail on the ground of violation of Part-III of the Constitution. However, in the case in hand, the maximum sentence provided under Section 18 & 20 UAPA is imprisonment for life and there is nothing which may indicate that prosecution is acting in a manner which is detrimental to his fundamental rights as provided under Part-III of the Constitution of India. Trial Court Record does not suggest any deliberate attempt on the part of prosecution to slow down the trial and, therefore, at this juncture, merely because of the above incarceration period, the accused does not become entitled to bail. The learned trial court has already observed that it, being already conscious about such fundamental right of the accused, was taking up the matter diligently by giving shortest possible dates. Therefore, there is no further requirement of passing any further direction in this regard. 

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Accused presumed to be innocent unless proved to be guilty- burden lies on the prosecution: SC

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Case title: C. Bala Malleshwar Rao, G Chandrashekhar, Syed Anwar Hussain, G. Damodar, K.L. Rama
Rao, V. Satyanarayana.
Case No: Criminal appeal No.729 of 2007, Criminal Appeal No.737 OF 2007, Criminal Appeal No.793 OF
2007, Criminal Appeal No.828 OF 2007, Criminal Appeal No.850 OF 2007.
Dated on: 16th April,2024.
Quorum: Hon’ble Sri Justice K. Surender.
Facts of the case:
The Registrar of Osmania University addressed a letter dated 03.12.1993 in the form of complaint to the Director General, Anti -Corruption Bureau alleging that: there was large scale embezzlement in payment of over time allowances contrary to the financial rules and procedure; Printing material purchased by Director-A1 along with other employees resulted in misappropriation of funds; Purchase of press equipment by A1 along with other employees deliberately without usage to gain illegally. Accordingly, the case was registered on 01.01.1994 and investigation was taken up. During 1990-91 to 1992-93, A1 issued self-cheques amounting to Rs.28,99,343.43ps. The said cheques were encashed by A2 and A4. The said amount meant for overtime allowances to the employees were disbursed to an extent of Rs.11,13,339.59 ps and misappropriated the balance of Rs.17,86,003.84 ps punishable under Section 13(1) (c ) and 13(2) of Prevention of Corruption Act. A1, for the very same orders issued self-cheques and third-party cheques to an extent of Rs.54,71,964.18ps to A2, A3, A7 to A11, who have encashed the cheques. It was shown that printing material worth Rs.36,55,560/- was purchased. However, the remaining amount of Rs.18,16,404-18 ps was not accounted, punishable under Section 13(1)(c)and Section 34 of IPC. A1 has issued self-cheques amounting to Rs.5,08,502.50ps and A2, A5 and A6 encashed the said cheques. An amount of Rs.25,470/- was given for private orders and the remaining amount of Rs.4,83,032.50 ps was misappropriated, punishable under Section 13(1)(c) of Section 34 of IPC. A1, A3 to A5 and A7 to A11 have entered into criminal conspiracy while discharging their duties and misappropriated the amounts to an extent of Rs,17,86,003.84 PS, Rs.18,16,404.18 PS, Rs.1,18,10,000.26ps and Rs.4,83,032.50 PS for purchase of printing material, punishable under Section 409 A1, A3 to A5 and A7 to A11 have falsified accounts willfully with an intention to defraud the institution and caused wrongful loss to the printing press, Osmania University, Hyderabad to an extent of Rs,17,86,003.84 PS, Rs.18,16,404.18 PS, Rs.1,18,10,000.26ps and Rs.4,83,032.50 PS, punishable under Section 477-A 120-B The ACB, during the course of investigation, having collected documents and examining witnesses filed charge sheet for the offences under Sections 13(1)(c ) r/w 13(2) Section 13(1)(d)(1) & (ii) r/w 13 (2) of the Prevention of Corruption Act, under Section 409 r/w 120-B IPC and Section 477A r/w Section 120-B IPC. Learned Special Judge convicted A3 to A5 and A7 to A11 and sentenced to undergo rigorous imprisonment for a period of one year each under Sections 13(1) (c), 13(1)(d) (1) & (ii) r/w 13(2) of the Prevention of Corruption Act, 1988 r/w 34 IPC, Section 409 r/w 120-B IPC, Section 277-A r/w 120-B IPC. Aggrieved by the conviction recorded by the Principal Special Judge, City Civil Court at Hyderabad vide judgment in C.C.No.17 of 2000 dated 15.06.2007 for the offences punishable under Sections 13(1)(c ) r/w 13(2) Section 13(1)(d)(i) & (ii) r/w 13 (2) of the Prevention of Corruption Act, under Section 409 r/w 120-B IPC and Section 477A r/w Section 120-B IPC, these Criminal Appeals are filed.
Contentions of the appellant:
The learned Special Judge has relied heavily on the enquiry conducted by P.W.2 against A1, A3 and A4 and the enquiry report Exs.P15, 16 and 17 respectively. The findings in the enquiry report were made without examining the witnesses. The documents Exs.P1 to P14, P22 to P247 which are overtime bills, cash books, bank statements, cheques and registers were all marked through P.W.1, who was Assistant Registrar, Osmania University. Merely marking the said documents cannot form basis for the Court to rely upon the gist of all the documents. The prosecution ought to have exhibited before the Court as to how the misappropriation was done by the appellants herein. Enquiry was conducted only against A1 to A4 and there is no enquiry against any of the other accused. Merely on the basis of conclusions drawn in the enquiry, all the accused were convicted. It was A1 who had the cheque power, drawing and disbursing power and responsible for the accounts of the Osmania University press. It was A1 who had informed and acknowledged that the amounts received were in fact paid to the persons who had executed job work which are the outside agencies. Learned counsel for A5 and A7 submits that enquiry was not conducted against A5 and A7. That itself reflects that even the department did not have any doubt about the alleged involvement of A5 and A7. It was specifically stated by investigating officer that A3 to A11 were not concerned with purchase of printing material. Learned counsel appearing for A4 argued that A4 was not entrusted with any amounts and whatever amounts were asked to be disbursed by A1, was disbursed. The allegation that A4 was maintaining overtime allowance register and other record were not proved by the prosecution. The Learned Special Judge had relied on the alleged confession of A4 before the enquiry officer/P.W.2 that he had withdrawn amount and was also maintaining the records pertaining to overtime allowances, which formed basis for conviction, which is incorrect.
Contentions of the respondent:
It is not in dispute that amounts were entrusted to A1 as the Director for the purpose of disbursing overtime allowances and also purchase of stationery and other material. The amounts that were withdrawn by A1, who had the power to disburse amounts and make payments for purchase of stationery, has to account for the same. In the absence of giving details of payments made after withdrawing the amounts, would clearly reflect that A1 along with other accused have misappropriated the amounts that were entrusted to them. The entire documents that were collected during the course of investigation and examined by PWs.1
to 4 during enquiry that was conducted against A1 to A4 can be looked into by the criminal Court for the purpose of adjudicating upon the criminal acts committed by these public servants. In the said circumstances, learned Special Judge was right in convicting the accused.
Legal provisions:
Sections 13(1) (c) of the Prevention of Corruption Act: states that a public servant is guilty of an offence if he dishonestly converts property for his public use. Section 13(2) of the Prevention of Corruption Act: any public servant who commits a misconduct will be sent for a rigorous punishment for a year. Section 13(1)(d) (1) & (ii) of the Prevention of Corruption Act: obtaining pecuniary advantage by corrupt means. Section 409 IPC: criminal breach by a servant or the banker. Section 120-B IPC: being a part of a criminal offence with death penalty or imprisonment. Section 477A IPC: falsification of accounts. 
Issue:
Whether the statements that were prepared on the basis of the documents available in the department can form basis to infer misappropriation and falsification of accounts, without there being any independent witnesses examined to support the allegation of drawing or
disbursing amounts in the names of individuals and Firms, or that such persons have not received amounts; Whether such statements prepared on the basis of enormous documents that were examined by witnesses can form basis to conclude guilt in the absence of proving each and every document before the Court below; Whether the learned Special Judge was right in invoking Section 106 of Indian Evidence Act on the basis of statements prepared by P.Ws.1 to 7 to convict the accused on the ground that the accused failed to discharge burden shifted on to them.
Courts judgement and analysis:
Appellants have totally denied the allegations leveled against them regarding any kind of misappropriation. Not a single witness is examined by the investigating agency to show that amounts were drawn, or cheques issued in favor of an individual or a firm and such amounts were not paid. Learned Special Judge believed the version of the prosecution witnesses regarding statements that were prepared and concluded that under Section 106 of Indian Evidence Act, the burden is on the accused to explain regarding the amounts that were withdrawn as such withdrawals and usage was to the exclusive knowledge of the accused. It is not in dispute and admitted that. The entire basis of P.W.2 finding A1, A3 and A4 guilty of the charges of misappropriation are the statements that were prepared under Exs.P1 and P35. The Court and the Investigating 30 Officer/P. W 8 heavily relied on Exs.P15 to P19 enquiry reports of P.W.2. The accused denied execution of any of the documents that were placed by the prosecution to show entrustment of the funds to them by A1.
Departmental enquiry conducted by any enquiry officer, who is appointed will conduct enquiry on the basis of preponderance of probabilities and inferences or conclusions will be drawn on the basis of the evidence that is placed before him and/or collected. However, in criminal cases, the principle of proof is beyond reasonable doubt, contrary to the procedure followed in the departmental enquiry. The Hon’ble Supreme Court in the case of Balvir Singh v. State of Uttarakhand held that when the prosecution has offered evidence which can be believed by the Court and convincing regarding the accused guilt beyond reasonable doubt, then the burden shifts on to the accused to present evidence regarding the facts peculiarly which are within the knowledge of the accused. The approach of the learned Special Judge in shifting the burden on to the accused to explain the opinion and inferences drawn during departmental enquiry is incorrect and it does not fall within the purview of Section 106 of Indian Evidence Act to draw adverse inference against accused and convict the accused. In view of above discussion, in the absence of any proof and direct evidence against the accused apart from the inferences drawn by P.Ws.1 to 3 and P.W.38, on the basis of the record found in the office, there cannot be any conviction for the offences alleged. The factum of entrustment to the appellants herein are assumptions on the basis of the withdrawals from Banks and payments made by A1 through cheques. Admittedly, self cheques were drawn and signed by A1. Not a single bank
witness is examined to show that at any point of time, self-cheques or the cheques of others were encased in the bank by any of these appellants.
The prosecution ought to have produced witnesses from the Bank to prove that cheques signed by A1 were withdrawn by the appellants herein. In the absence of any such proof, the question of these appellants abetting A1 in committing alleged misappropriation of the funds entrusted to A1 would not arise. The Hon’ble Supreme Court in the case of R. Sai Bharathi v. J. Jayalalitha held that entrustment has to be proved for establishing an offence of criminal misappropriation. The case is one of circumstantial evidence. The burden is on the prosecution to prove the circumstances of the case by admissible and legal evidence. All such circumstances cumulatively should form a complete chain pointing unerringly towards the guilt of the accused. The Hon’ble Supreme Court in the case of State of Uttar Pradesh v.  Suhasi, Haricharan v. State of Rajasthan held that where if there are missing links in the chain of evidence adduced by the prosecution, benefit of doubt should go to the accused.
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Interim relief cannot be seeked for an International Arbitration Case: SC

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Case title: Ilwohnibrand Co. Ltd. V. Mahakali Food Pvt.Ltd and Ors.

Case no: Arbitration case No.of 2023

Dated on: 3rd April, 2024

Quorum: Hon’ble Justice Sushrut Arvind Dharmadikhari  and Hon’ble Shri Justice Devnarayan Mishra

Facts of the Case:

The petitioner had business relationship with the respondent no.1 to 3. A sale contract was entered into between the petitioner and the respondents on 18.09.2019 for supply of 2014 MT ‘ Full-Fat Soya Grits’. However, respondents committed a breach of contract wherein there was neither the quantity supplied according to the contract nor the quality. Even for the sub-standard material supplied by the respondent, the authorities conducted raid and sealed the premises of the petitioner. Petitioner notified the respondent about the breach. Respondent though admitted the supply of substandard quality under the contract and promised to compensate the petitioner but no such compensation was ever paid. Another contract was entered into between the petitioner and the respondent wherein respondent insisted for enhanced rate and issued proforma invoice and payment was duly made by the petitioner. However, respondent again committed breach of contract by not supplying the material as per the timeline mandated in the contract and in fact only supplied goods worth $1,42,500 despite receiving advance payment of $375,000 and thereafter respondent did not make any supply and stopped answering the calls. Again, with malicious intent, respondents communicated that it shall pay the balance amount to the petitioner, but no heed has been paid. Efforts to resolve the dispute failed since the respondent did not want to and stopped making communication with the petitioner. Since, the contract between parties provides for resolution of dispute by way of arbitration to be conducted in India, the petitioner filed petition under the Section 9 (1)(i) of the Conciliation Act of 1996 before the Commercial Court which was dismissed for want of jurisdiction with liberty to the petitioner to approach appropriate forum. Hence, the present petition had been filed. Shri Aniket Naik, appointed as Amicus Curiae submitted that petitioner has already approached the Commercial Court under Section 9 of the Act of 1996 seeking interim protection. However, learned Commercial Court dismissed the application filed by the petitioner holding the same as not maintainable for want of jurisdiction as the matter pertains to international commercial arbitration and not domestic arbitration.

Contentions of the Appellant:

Learned counsel for the petitioner submitted that evidence of breach committed by the respondent are available and, therefore, an order of interim protection securing the amount involved in the arbitration is required to be passed since despite sending several reminders, respondent kept making false promises, but neither exported the balance shipment nor compensate for the delivery of sub-standard quality of products thereby putting the petitioner to suffer irreparable loss. In terms of section 2(e) and (f) of the act of 1996, the petition can by heard by this court being the jurisdictional court and the present arbitration being an international commercial arbitration. In an identical situation the apex court , in S.D. Containers V. Mold Tek Packaging Ltd., had remanded the case to the court to be tried under its original civil jurisdiction where the court held that while invoking its powers under clause (9) of the letter patent read with rule 1(8) of chapter IV of the rules of the exercise its extra ordinary civil jurisdiction. Hence, the petition which is made under Section9 of the Act 1996 is exclusively triable by this court, therefore, the present petition to be deleted from the category of  the arbitration case and be listed under  the relevant category before appropriate single bench.

Contentions of the Amicus Curiae:

Petitioner has already approached the commercial court under Section 9 of the Act of 1996 seeking interim protection. But the court dismissed saying that the same is not maintainable as it pertains to international arbitration. Thereafter,

Petitioner has preferred the present application under section 9 (2)(1)(f) of the act of 1996 which is not maintainable in the view the fact that as per the Chapter 2 Rule 3 of Rules, 2008 an application under section 11 of the act of 1996 shall be registered as arbitration case which deals with the appointment of the arbitrator.  Court to sub-rule 8 Rule 10 Chapter 2, of the High Court rules 2008 which says that these cases can be considered as a  Miscellaneous Civil Case and also to be registered as a Miscellaneous Civil Case if they do not fall under the ambit of the first seven clauses which is not interlocutory to any proceedings. It is submitted that petitioner can very well file Miscellaneous Civil Case in terms of sub-rule 8 of Rule 10 of Chapter 2 of Rules of 2008, which can be entertained and appropriate orders can be passed.

Legal Provisions:

Section 9 of the Arbitration and Conciliation Act-  Seeking interim reliefs before, or during the arbitral proceedings, or at any time after the passing of the award but before it is enforced.

Section 11 of the Arbitration and Conciliation Act- Appointment of the arbitrator.

Sub-rule 8 of Rule 10 of Chapter 2 of the High Court of Madhya Pradesh rules of 2008- Filing miscellaneous civil cases.

Issues:

Whether the petitioner is entitled to seek interim measure of protection and securing the amount involved in the arbitration   under section 9 of Arbitration act 1996 and section 10 of the commercial courts act,2015?

Courts Judgement and Analysis:-

The present petition itself is not maintainable on twin grounds:

(i) Firstly , the petitioner resorting to the liberty granted by the Commercial Court has filed present petition under Section 9 r/W Section 2(1)(f) of the Act of 1996 seeking interim protection before this Court which cannot be entertained by this Court.

(ii) Secondly, as rightly pointed out by Amicus Curiae, in terms of Chapter 2 Rule 3 of the Rules of 2008, an application Section 11 of the Act of 1996 shall be registered as an arbitration case which deals with appointment of Arbitrator which is not the case herein.

In the considered opinion of this Court, looking to the nature of case and the relief as sought for by the petitioner, the same does not fall within the category of an Arbitration Case. Rather the same ought to have been filed as a Miscellaneous Civil case falling within the ambit and scope of any other application of civil nature, not falling under any of the specified categories in terms of sub-rule 8 of Rule 10 of Chapter 2 of Rules of 2008. In view of the above   discussion, its hereby rejected. Accordingly, the present petition is hereby dismissed with liberty to the petitioner to file miscellaneous civil case in terms of sub-rule 8 of Rules of 2008.

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Supreme Court: Moving the High Court’s jurisdiction to seek release of seized vehicles without engaging the magistrate deemed inappropriate.

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Case title: Khengarbhai Lakhabhai Dambhala v. The State of Gujarat

Case no.: Criminal Appeal No.1547 Of 2024

Order on: 8th April 2024

Quorum: Justice Bela M. Trivedi and Justice Pankaj Mithal

FACTS OF THE CASE

In this case, the appellant claimed ownership of a vehicle, an Eicher 10.80 (Blue) bearing no. GJ 05-BT-0899, which was seized by police as Muddamal Article in connection with FIR no. 11200038231465/2023. The FIR was lodged under various sections of the Gujarat Prohibition Act and IPC at the Pardi Police Station, District Valasad. The police intercepted the vehicle based on secret information and alleged that it was carrying English Liquor (1240.200 Liters) worth rupees 7 lakhs without any pass or permit. The appellant, claiming to be the owner, filed a Special Criminal Application No.6465 of 2023 before the High Court of Gujarat at Ahmedabad seeking release of the seized vehicle. However, the High Court dismissed the application through an order dated 08.06.2023, leading to the present appeal.

CONTENTIONS OF THE APPELLANT

The appellant contended that the vehicle should be released, claiming ownership, without approaching the concerned criminal court under Section 451 of the Cr.P.C. Instead, they filed a Special Criminal Application directly in the High Court under Article 226/227 of the Constitution of India.

CONTENTIONS OF THE RESPONDENTS

The State of Gujarat, represented as the respondent, contended that Section 98(2) of the Gujarat Prohibition Act 1949 forbids the release of the vehicle until the final judgment of the court if the quantity of seized liquor exceeds the prescribed limit.

In this case, the seized quantity of liquor was 1240 liters, far exceeding the prescribed quantity of 20 liters as per the relevant notification.

In case of Sunderbhai Ambalal Desai vs. State of Gujarat, it is of no use to keep the seized vehicles at the police stations for a long period and it is for the magistrate to pass appropriate orders for the proper custody of the said such vehicles during the pendency of the trial. However, as observed earlier, the appellant without approaching the concerned criminal court under Section 451 of the Cr.P.C seeking custody of the vehicle in question, directly approached the High Court by filing Special Criminal Application under Article 226/227 of the Constitution of India, which was not the proper course as adopted by the appellant.

LEGAL PROVISIONS

Section 65 of Gujarat Prohibition Act, Sub-Section:

(a) imports or exports any intoxicant 1 [ ( other than opium ) ] or hemp.

(e) sells or buys any intoxicant 1 [ (other than opium) ] or hemp.

Section 81 of Gujarat Prohibition Act – Whoever, attempts to commit or abets the commission of an offence be punished for such attempt or abetment.

Section 98(2) of Gujarat Prohibition Act – Any receptacle, package or covering in which any of the articles liable to confiscation by the order of the Court.

Section 132 of Gujarat Prohibition Act – Article seized – [When anything has been seized, under the provisions of this Act by a Prohibition Officer exercising powers under section 129 or by an Officer in-charge of a Police Station].

ISSUE –

  • Whether the vehicle seized in connection with the offense under the Gujarat Prohibition Act could be released pending trial.
  • Whether the appellant’s approach, directly filing a Special Criminal Application in the High Court, was appropriate.

COURT’S ANALYSIS AND JUDGEMENT

The court analyzed Section 451 of the Cr.P.C., which deals with the custody and disposal of property during an inquiry or trial. It emphasized that the criminal court has the jurisdiction to pass orders regarding custody or disposal of the property. The appellant’s direct approach to the High Court was deemed inappropriate, as there existed a specific statutory provision under Cr.P.C. for seeking custody of the seized property.

Regarding the prohibition against the release of the vehicle under Section 98(2) of the Gujarat Prohibition Act, the court noted the ambiguity in its wording. It observed that the provision lacked coherence in its construction and did not clearly establish a relationship between its parts. However, considering the broader context of the Act and Cr.P.C., the court concluded that the vehicle could not be released without proper legal procedure being followed.

The court dismissed the appeal, emphasizing that the appellant should approach the concerned criminal court for custody of the vehicle during the trial. It clarified that the dismissal didn’t bar the appellant from seeking relief through the appropriate legal channels.

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Judgement Reviewed by – Chiraag K A

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Appeals against the Contempt orders of Central Administrative Tribunal (CAT) available only before the Supreme Court and not High Court: Allahabad High Court

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Case title: Dr Brajendra Singh Chauhan & Ors. Vs Central Administrative Tribunal & Ors

Case no.: Writ Application No. – 602 of 2024

Order on: March 22nd, 2024

Quoram: Justice Vivek Kumar Birla and Justice Donadi Ramesh

Facts of the case

The petitioners who were initially appointed as Short Term Medical Officers had approached the Central Administrative Tribunal (CAT), Allahabad Bench and sought to issue an order to the respondents for their appointment as regular Assistant Medical Officers. The CAT ruled in favour of the petitioners. However, the petitioners alleging non-compliance of the order by the respondents again approached the CAT by filing a contempt petition under the provisions of the Contempt of Courts Act, 1971. The Tribunal noting a substantially compliance of the order by the respondents disposed of the application. Aggrieved by the same, the petitioners appealed before the Allahabad High Court under Article 226 of the Constitution.

The Respondent’s Counsel submitted that the writ petition is not maintainable under Article 226 by citing Section 17 of the Administrative Tribunal Act, 1985 (AT Act) in conjunction with Section 19 of the Contempt of Courts Act, 1971 (CC Act).

Legal Provisions

Article 323A – It empowers the Parliament to enact the law providing for adjudication or trial by Administrative Tribunals and specifies the jurisdiction and powers of such Tribunals including their power to punish for contempt.

Section 14 & Section 15 of the AT Act – It specifies the jurisdiction, powers and authority for the Central Administrative Tribunal and State Administrative Tribunal respectively.

Section 17 of the AT Act – It empowers the Tribunal to punish for contempt of court and exercise its power similar to the High Court with regard to provisions of the Contempt of Courts Act, 1971.

Section 12 of the CC Act – It provides Punishment for Contempt of Court.

Section 19 of the CC Act – It provides that the appeals against the orders of Tribunal shall lie as a matter of right to the Bench of at least two Judges of High Court, where the contempt order is passed by the Single Judge and it shall lie to the Supreme Court where the order is passed by the Bench.

Court’s Analysis and Judgement

The Court addressing the question of maintainability of writ petition filed before the High Court against the orders passed under the Contempt of Courts Act delved into Article 323 A, Sections 14 & 17 of the AT Act and Sections 11, 12 & 19 of the CC Act. It drew a distinction between the orders passed by the Tribunal under Section 14(1) of the AT Act and the order passed under Section 17 of the AT Act. The Bench noted that the while there is no statutory remedy of appeal available under the former, the latter provides the same by virtue of Section 19 of the CC Act. Further, it noted that since the contempt proceeding under Section 17 of the AT Act is dealt with by a bench of not less than two members, the orders passed would be appealable only before the Supreme Court. Hence, it ruled that any order or decision of the Tribunal under the Contempt of Courts Act shall be appealable only to the Supreme Court within 60 days from the date of the order.

The Court heavily relied on the precedence laid down in the cases of T. Sudhakar Prasad Vs Government of A.P. and L. Chandra Kumar Vs. Union of India and held that the orders of the Tribunal under the Contempt of Courts Act shall be appealable only before the Supreme Court and no writ petition against the same shall be maintainable before the High Court under Article 226 / 277 of the Constitution of India. Accordingly, it dismissed the present petition citing the lack of maintainability.  This judgement thus, throws light on the jurisdictional scope of appeals arising from contempt proceedings under Section 17 of the Administrative Tribunals Act and clears line on the exclusive appellate jurisdiction of the Supreme Court in matters regarding contempt orders issued by the Tribunal.

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Judgement Reviewed by – Keerthi K

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