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2024 (5) TMI 270
Challenged the impugned judgment of conviction and order of sentence - Power to seize and arrest of a person in a public place - Smuggling - transportation of Ganja from truck - non-availability of documents - Seizure - Offence punishable u/s 28 read with 20 (b)(ii) (C) and Section 29 read with 20 (b)(ii) (C) of the NDPS Act - conviction based solely on the purported confessional statement recorded u/s 67 of the NDPS Act - Whether Section 42(1) of the NDPS Act has been complied with in its letter and spirit or not? - HELD THAT:- Perusal of the notices shows that Central Government has empowered the Intelligence Officer of the Revenue Intelligence Directorate under the crime relating to Act in their regional jurisdiction. In the instant case, K.V.L Narasimham (PW-11) has conducted the proceeding of the case under his regional jurisdiction and it is accordingly established.
In any case, it is important that the drug seized in the case should be kept safe and secure and the process of extracting the sample from it should be done duly and the sample should also be sent to a competent laboratory under proper custody. In the present case, the process of sealing the seized drug and keeping it in a safe in godown and taking out the sample has also been found to be legal and the sample taken out has also been found to be sealed and sent for testing legally. At any stage of the case, no tampering has been found in the drug samples or the seized packets, hence, the entire case cannot be considered unbelievable merely on the basis of samples being taken at the CGST Bhawan. Therefore, this Court is of the view that there has been proper compliance of Section 43 of the NDPS Act and the Investigator on the information of the informant, intercepted the vehicle wherein 6545 Kgs Ganja was kept and appellants K. Dharmara, Surjeet Singh Randhawa and Avtar Singh were present in the said truck. Thus, in the opinion of this Court, the prosecution has proved its case in respect of appellants K. Dharmara, Surjeet Singh Randhawa and Avtar Singh. Thus, the trial Court has rightly convicted and sentenced them.
Statement recorded u/s 67 by the IO (PW-11) naming Appellants-Vishnu Bhadra and Premanand is not admissible because there is no corroborative evidence or other evidence on record, therefore, statement u/s 67 of the NDPS Act is a weak type of evidence in the instant case.
Whether Appellant Vishnu Bhadra and Premanand were involved in the said crime or not? - We are of the view that the case of the prosecution in respect of Appellant Vishnu Bhadra and Premanand is not proved beyond all reasonable doubts. In the result, Cr.A. on behalf of appellants K. Dharmara, Surjeet Singh Randhawa and Avtar Singh are devoid in merits and liable to be and are hereby dismissed. The said appellants are stated to be in jail. They shall serve out the sentenced awarded to them by the Trial Court.
So far as Cr.A. filed on behalf of Appellants-Vishnu Bhadra and Premanand is concerned, it is hereby allowed.
Accordingly, the conviction and sentence awarded to the Appellants-Vishnu Bhadra and Premanand by the trial Court is hereby set-aside. The Appellants-Vishnu Bhadra and Premanand are acquitted of the charges framed against them. The Appellants-Vishnu Bhadra and Premanand are in jail. They shall be set at liberty forthwith if no longer required in any other criminal case.
Keeping in view the provisions of Section 437-A of the CrPC, the Appellants-Vishnu Bhadra and Premanand, are directed to forthwith furnish a personal bond in terms of Form No. 45 prescribed in the Code of Criminal Procedure of sum of Rs. 25,000/- each with two reliable sureties in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court.
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2024 (5) TMI 187
Dishonour of Cheque - insufficient funds - discharge of legal liability - rebuttable presumption - conviction of accused u/s 138 of the N. I. Act - suspicious transaction - HELD THAT:- It has been held by the Hon’ble Supreme Court and the Jharkhand High Court on various occasions that payment of friendly loan without giving any specific date or dates to the accused petitioner in absence of any witness led to suspicious transaction.
It has been held by Hon’ble the Supreme Court in the case of Rajaram Through L.Rs. Versus Maruthachalam [2023 (1) TMI 794 - SUPREME COURT] that 'the standard of proof for rebutting the presumption is that of preponderance of probabilities. Applying this principle, the learned Trial Court had found that the accused had rebutted the presumption on the basis of the evidence of the defence witnesses and attending circumstances.'
The Supreme Court has also held that the issuance of blank cheque with signature only by the accused may not go in favour of the holder of the cheque, i.e. the complainant.
Thus, it is evident that opposite party no. 2 had rebutted the presumption in light of the Section 139 of the N. I. Act.
Therefore, this Court finds that no illegality has been committed by the learned Appellate Court below while coming to the conclusion that the petitioner had no financial capacity to pay loan amount to the opposite party no. 2 and thus, this Criminal Revision is devoid of merit - the criminal revision is dismissed.
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2024 (5) TMI 121
Dishonour of Cheque - vicarious liability of the petitioner in terms of Section 141 NI Act - Company Secretary of the company - The CS was never a Director of the Accused Company - In-charge of the day-to-day affairs of the company or not - exact role of the petitioner in the accused company and her consequent liability for the offence under Section 138 NI Act - HELD THAT:- The petitioner was employed in the company as a Company Secretary. Once the same is established, the question that arises for consideration is whether the petitioner can be made vicariously liable in terms of Section 141 NI Act. A perusal of the subject complaints would show that nowhere in the said complaints has the respondent averred that the petitioner was in-charge of, and responsible for the conduct of the business of the company. The word ‘in-charge of a business’ has been interpreted to mean a person having overall control of the day-to-day business of the company.
In the ordinary course of business, it cannot be said that the petitioner, who was acting as a Company Secretary, would be in-charge of the day-to-day affairs of the company, as required in terms of Section 141(1). Thus, the petitioner cannot be vicariously liable in terms of Section 141(1).
In view of the facts of the present case including the fact that the petitioner was employed as a Company Secretary in the accused company as well as the position of law w.r.t Section 141 NI Act and the application of the same to the subject complaints, it can be observed that the subject complaints are bereft of the adequate averments against the petitioner alleging the Petitioner’s involvement in the conduct of the business of the Company beyond her statutory role as a Company Secretary, more particularly, in relation to the transaction pursuant to which cheque in question was issued. Neither, is there any averment that the offence has been committed with the consent or connivance of is attributable to any neglect on the part of the Petitioner, so as to potentially make her liable under Sub-section (2) of Section 141.
There is no cavil with the proposition of law stated in the decisions cited by the respondent but in the absence of appropriate and adequate averments against the petitioner, and the fact that Petitioner’s impleadment can only be in her capacity as a Company Secretary, the continuation of proceedings against the petitioners would be nothing but an abuse of the process of law.
The present petitions are allowed and the criminal complaints filed under Section 138 read with Section 141 NI Act are quashed qua the petitioner.
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2024 (5) TMI 120
Maintainability of writ petition - time limitation - time limitation ought to have been dismissed on the ground of delay and latches itself or not - Whether the writ court was justified in entertaining the writ petition filed by the Respondent No. 1 herein challenging the approval dated 03.06.2014 granted in favour of the Appellant herein for starting LPG distributorship at Jamalpur, District Burdwan? - HELD THAT:- An applicant who approaches the court belatedly or in other words sleeps over his rights for a considerable period of time, wakes up from his deep slumber ought not to be granted the extraordinary relief by the writ courts. This Court time and again has held that delay defeats equity. Delay or latches is one of the factors which should be born in mind by the High Court while exercising discretionary powers Under Article 226 of the Constitution of India. In a given case, the High Court may refuse to invoke its extraordinary powers if laxity on the part of the applicant to assert his right has allowed the cause of action to drift away and attempts are made subsequently to rekindle the lapsed cause of action.
There being no stiff opposition or strong resistance to the alternate land offered by the Appellant herein not being as per the specifications indicated in the advertisement, there are no reason to substitute the court's view to that of the experts namely, the Corporation which has in its wisdom has exercised its discretion as is evident from the report filed in the form of affidavit by the territory manager (LPG)/ BPCL.
The order of the Learned Division Bench is liable to be set aside and accordingly, it is set aside - Appeal allowed.
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2024 (5) TMI 60
Smuggling - Non-Compliance with Mandatory Procedure under Section 42 of the NDPS Act - Violation of Section 50 - search and seizure proceedings by panch witness - delivering contraband/illicit substance - conviction of the accused as recorded by the trial Court and affirmed by the High Court - HELD THAT:- The contention of learned counsel for the appellants that the search and seizure was undertaken without associating an independent witness is untenable on the face of record. Manubhai(PW-1), the panch witness associated in the search and seizure proceedings was serving in the Income Tax Department and hence by no stretch of imagination, can it be accepted that the witness was a stock witness of the NCB or was an interested witness. Manubhai(PW- 1) in his sworn testimony proved the recovery panchnama(Exhibit P-30) and also fully supported the prosecution case regarding the search and seizure of contraband effected from Anwarkhan(A-1). Nothing significant could be elicited by the defence in the prolonged cross-examination undertaken from Manubhai(PW-1) and hence, there are no hesitation in holding that the evidence of Manubhai(PW-1) being the panch witness associated in the search and seizure effected from Anwarkhan(A-1) is reliable and trustworthy. Thus, it is well established that independent panch witness was associated in the search and seizure procedure.
Section 42 of the NDPS Act deals with search and seizure from a building, conveyance or enclosed place. When the search and seizure is effected from a public place, the provisions of Section 43 of the NDPS Act would apply and hence, there is no merit in the contention of learned counsel for the appellants that non-compliance of the requirement of Section 42(2) vitiates the search and seizure. Hence, the said contention is noted to be rejected.
The fact regarding the seizure of contraband narcotic drug, i.e., heroin/brown sugar weighing 2 kgs and 30 grams from the possession of Anwarkhan(A-1) has been duly established by the prosecution beyond all manner of doubt. The link evidence required to prove the sanctity of the sampling and transmission of the samples to the Chemical Analyst is also sacrosanct. The search and seizure procedure is free from all doubts.
The prosecution has duly proved the guilt of Anwarkhan(A-1) beyond all manner of doubt by leading convincing and satisfactory evidence. - There is no dispute that no contraband substance was recovered from the possession of appellant Firdoskhan(A-2).
The conviction of Firdoskhan(A-2) as recorded by the trial Court and affirmed by the High Court cannot be sustained and he deserves to be acquitted by giving him the benefit of doubt - Appeal filed by appellant Anwarkhan(A-1) lacks merit and is hereby dismissed - appeal preferred by appellant Firdoskhan(A-2) is allowed.
Appeal allowed in part.
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2024 (5) TMI 59
Permission to 1st and 2nd respondents (writ petitioners) to construct a compound wall under police protection - the senior district-level officials of the State had stated on oath that the construction of the compound wall, would affect the rights of several third parties.
HELD THAT:- The Court completely ignored the oath. Even in clause 6 (iii) of the “Minutes of Order”, there was enough indication that the compound wall, if not appropriately constructed, would affect the rights of owners of the other lands. Therefore, it was the duty of the Court to have called upon the 1st and 2nd respondents to implead the persons who were likely to be affected. The 1st and 2nd respondents could not have pleaded ignorance about the names of the concerned parties as they have referred to the owners of the other lands in the “Minutes of Order". However, the Division Bench of the High Court has failed to make even an elementary enquiry whether third parties will be affected by the construction of the compound wall under police protection. Hence, the order passed in the Writ Petition in terms of the “Minutes of Order” is entirely illegal and must be set aside. The Writ Petition will have to be remanded to the High Court to decide the same in accordance with the law.
Matter restored to the file of the High Court - the Registrar (Judicial) of the Bombay High Court is directed to list the restored Writ Petition before the roster Bench on the first day of re-opening of the Court after the ensuing summer vacation - appeal allowed in part,
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2024 (5) TMI 58
Direction to take down an article dated 21 February 2024 published on their online platform within a week - restraint from posting, circulating or publishing the article in respect of the respondent-plaintiff on any online or offline platform till the next date of hearing - Ex-parte ad-interim injunction against the appellants - Defamatory Article authored by Defendant Nos. 3-5 and published by Defendant Nos. 1 and 2 - HELD THAT:- Undoubtedly, the grant of an interim injunction is an exercise of discretionary power and the appellate court (in this case, the High Court) will usually not interfere with the grant of interim relief. However, in a line of precedent, this Court has held that appellate courts must interfere with the grant of interim relief if the discretion has been exercised “arbitrarily, capriciously, perversely, or where the court has ignored settled principles of law regulating the grant or refusal of interlocutory injunctions.” - The grant of an ex-parte interim injunction by way of an unreasoned order, definitely falls within the above formulation, necessitating interference by the High Court. This being a case of an injunction granted in defamation proceedings against a media platform, the impact of the injunction on the constitutionally protected right of free speech further warranted intervention.
The High Court ought to have also at least prima facie assessed whether the test for the grant of an injunction was duly established after an evaluation of facts. The same error which has been committed by the trial Judge has been perpetuated by the Single Judge of the High Court. Merely recording that a prima facie case exists, that the balance of convenience is in favour of the grant of injunction and that an irreparable injury would be caused, would not amount to an application of mind to the facts of the case. The three-fold test cannot merely be recorded as a mantra without looking into the facts on the basis of which an injunction has been sought. In the absence of such a consideration either by the trial Judge or by the High Court, there are no option but to set aside both the orders of the trial Judge dated 1 March 2024 and of the Single Judge of the High Court dated 14 March 2024.
Appeal disposed off.
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2024 (4) TMI 1192
Seeking grant of regular bail - carrying contraband item cannabis (ganja) - procedural defects in sampling under Section 52A of the NDPS Act - case of petitioner is that the drawing of representative samples from the recovered contraband under Section 52A of the Act is defective and this makes the entire recovery, as well as, the case of the prosecution doubtful - HELD THAT:- The Hon’ble Supreme Court in the case of State of Punjab v. Balbir Singh [1994 (3) TMI 173 - SUPREME COURT] in the context of an argument as to the defect in the sampling procedure so adopted observed that Sections 52 and 57 of the Act contain procedural compliances which are to be adhered to but if there is no strict compliance of the above noted provisions, that by itself cannot render the acts done by the officers of the respondent as null and void, if there is sufficient material against the accused. At the most, a flaw in the sampling procedure may affect the probative value of the evidence. At the same time, the Hon’ble Supreme Court also observed that the provisions are directory in nature, therefore, the Court is bound to examine the prejudice which shall be caused to the petitioner and consequent failure of justice due noncompliance.
The process of sampling has to be in accordance with Section 52A of the NDPS Act. Any deviation so made in the sampling procedure, shall not ipso facto lead to grant of bail to the accused. At the same time the officers of the respondent cannot completely violate or ignore the provisions of the Act, the Rules framed thereunder or the standing orders. However, any defect alleged to have occurred in the sampling procedure should be egregious and should prima facie cause an irreparable prejudice to the accused.
As far as the present case is concerned, it is to be noted that it is not the case of the petitioner that the samples which have been drawn, were drawn from any other pulandas. In fact, there is no dispute that the samples which have been drawn have been taken from the same pulandas which were recovered from the truck. The mere fact that the proceedings under Section 52A of the Act are silent in respect of the number of brown bundles which were there in each of the pulandas prima facie does not cause irreparable prejudice to the petitioner. Further, no objection in this regard has been raised by the petitioner during the process of sampling.
At this stage it cannot be said that there are reasonable grounds for believing that the petitioner is not guilty of the offence alleged. Accordingly, the present petitioner, along with pending applications, if any, is dismissed
Petition disposed off.
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2024 (4) TMI 1191
Seeking grant of regular bail - recovery of 143 kgs of Ganja from the applicant's car - no apprehension of the applicant evading trial or tampering with evidence/influencing witnesses - bail application is resisted on the ground that the said amount recovered from the car of the applicant, qualifies as commercial quantity and thus the rigorous of the Section 37 NDPS Act are applicable in the present case - HELD THAT:- It is clear that even in situations wherein commercial quantity has been recovered from the accused, the said individual has been granted the benefit of bail, while considering of the period of incarceration as well as the fact that the trial is likely to take some time in a case.
Considering the aforesaid factual and legal position especially the fact that the applicant has been in custody for about 3 and a half years as also the fact that only 2 witnesses have been examined so far, the applicant is directed to be released on regular bail subject to his furnishing a personal bond in the sum of Rs.50,000 with one surety of the like amount to the satisfaction of the concerned Jail Superintendent/concerned Court/Duty M.M. and subject to fulfilment of further conditions imposed - bail application allowed.
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2024 (4) TMI 1164
Dismissal of execution application preferred by the Plaintiff barred by limitation - period of limitation for filing the execution petition - suit for possession against the Respondents - period of limitation for filing the execution petition is 3 years or 12 years? - Whether the period (18.12.2000 to 29.01.2005) diligently pursuing execution petition before the Tehsildar, would be excluded for the purposes of computing the period of limitation or not?
HELD THAT:- On a perusal of Section 14(2) of the Limitation Act, which is also applicable to the State of Jammu and Kashmir, it is evident that it carves out an exception excluding the period of limitation when the proceedings are being pursued with due diligence and good faith in a Court “which from defect of jurisdiction or other cause of a like nature, is unable to entertain it”.
This Court in CONSOLIDATED ENGG. ENTERPRISES VERSUS PRINCIPAL SECY. IRRIGATION DEPTT. & ORS. [2008 (4) TMI 668 - SUPREME COURT] further expounded that the provisions of this Section, must be interpreted and applied in a manner that furthers the cause of justice, rather than aborts the proceedings at hand and the time taken diligently pursuing a remedy, in a wrong Court, should be excluded.
In M/S LAXMI SRINIVASA R AND P BOILED RICE MILL VERSUS STATE OF ANDHRA PRADESH & ANR. [2022 (12) TMI 822 - SUPREME COURT] (2-Judge Bench), this Court followed the dictum in Consolidated Engg. Enterprises to exclude the time period undertaken by the Plaintiff therein in pursuing remedy under Writ Jurisdiction, in the absence of challenge to the bona fides of the Plaintiff, in view of Section 14.
No substantial averment has come on record to substantiate the claim that the predecessor in interest of the Plaintiff approached the Tehsildar with any mala fide intention, in the absence of good faith or with the knowledge that it was not the Court having competent jurisdiction to execute the decree. The object to advance the cause of justice, as well must be kept in mind.
On a perusal of the record, it is apparent that the Plaintiff has pursued the matter bonafidely and diligently and in good faith before what it believed to be the appropriate forum and, therefore, such time period is bound to be excluded when computing limitation before the Court having competent jurisdiction. All conditions stipulated for invocation of Section 14 of the Limitation Act are fulfilled.
Thus, the period from 18.12.2000, when the execution application was filed to 29.01.2005, when the prior proceeding was dismissed, has to be excluded while computing period of limitation, which results in the execution application filed by the Plaintiff, being within the limitation period prescribed under Article 182 of the Limitation Act as well, which is 3 years.
The impugned order of the High Court dated 09.04.2018 and Munsiff Court, Hiranagar dated 28.11.2007 are set aside. The execution application of the Plaintiff is restored to the file of the Munsiff Court, Hiranagar for fresh consideration, in consonance with the view on limitation - appeal allowed.
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2024 (4) TMI 1162
Seeking quashing of proceedings in a criminal case based on a High Court judgment - offence under Section 120B and Section 409 of the Indian Penal Code, 1860 along with Section 13(2) read with Section 13(1)(c) and (d) of the Prevention of Corruption Act, 1988 - HELD THAT:- As far as the role played by the appellant is concerned, it is an admitted position that she is the allottee of a plot and the allotment was made on 5th June, 2009. At this stage, attention is invited to the judgment and order dated 29th August, 2023 passed by the High Court on a petition filed by the accused no.5 praying for quashing the proceedings in CC No.14/2019. By the said judgment, the High Court has quashed the same as against the accused no.5.
A perusal of the findings recorded in paragraph nos.10, 11 and 12 of the said judgment shows that the case of the present appellant is on par with the case of the accused no.5 and there is no material factual distinction between the allegations against these two accused. Therefore, even the case of the appellant will be governed by the said judgment of the High Court.
The proceedings against the appellant on the file of the Special Court for Trial of Criminal Cases related to Elected Members of Parliament and Members of Legislative Assembly at Chennai, is hereby quashed - Appeal allowed.
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2024 (4) TMI 1155
Scope/Power of review - Jurisdiction of the High Court in review - Mistake or error apparent on the face of record - Sub-clause (c) of Order XLVII Rule 1 of the CPC 1908 - HELD THAT:- There is a distinct lack of jurisdiction on two counts – one is with respect to an attempt made to circumvent the decree and, the second is in acting without jurisdiction. The land belongs to the Forest Department and therefore, Defendant No. 1 had absolutely no role in dealing with it in any manner. Proceeding under the A.P. Land Revenue Act, 1317 F. has got no relevancy or connection with a concluded proceeding under the A. P. Forest Act. The proceeding under the A. P. Forest Act was concluded on 11.11.1971. Thereafter, without any jurisdiction, an order was passed under Section 87 of the A.P. Land Revenue Act.
The High Court on the earlier occasion had given a clear finding that even at the time of declaration under the A.P. Land Revenue Act, 1317 F, these lands were not shown as private lands by the defendant, among other factual findings. It is indeed very strange that the High Court which is expected to act within the statutory limitation went beyond and graciously gifted the forest land to a private person who could not prove his title. While disposing of the first appeal, the High Court exercised its power under Order XLI Rule 22 of the CPC 1908 for partly reversing the trial court decree. Even otherwise, there were concurrent findings in so far as dismissal of the suit for injunction is concerned - the High Court showed utmost interest and benevolence in allowing the review by setting aside the well merited judgment in the appeal by replacing its views in all material aspects.
The suit filed is not maintainable as the plaintiff has not challenged the proceedings under Section 15 of A. P. Forest Act. These have become final and conclusive in view of the express declaration provided under the statute in Section 16 of A. P. Forest Act. Rather, the plaintiff filed an application for denotification before the Government which was rejected. Neither the State Government, which rejected the said application, nor the Forest Settlement Officer has been made as party defendants in the suit, with the State arrayed as respondent represented by the Principal Secretary, Forest Department, at a later stage in the appeal - there is no specific challenge to the concluded proceedings under the A. P. Forest Act. The Plaintiff has merely asked for declaration of title and permanent injunction restraining the Defendants from interfering with possession.
The impugned judgment stands set aside by restoring the judgement - it is considered appropriate to impose cost of Rs. 5,00,000/- each on appellants and respondents to be paid to the National Legal Services Authority (NALSA) within a period of two months from the date of this judgment - the appeal stands allowed.
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2024 (4) TMI 1147
Review Application filed by the ex-propriated land owners, eventually seeking further enhancement of compensation - dismissal of application invoking the `Doctrine of Merger’ - HELD THAT:- If the leave to appeal was granted and a consequential order was passed, such an order would then attract the ‘Doctrine of Merger’ and consequently, the decision of the High Court which is under challenge, shall stand merged with that of the order passed by this Court. Since the High Court’s judgment will stand subsumed in the order of this Court and in a way, will no longer be in existence, an application seeking review thereof shall not be maintainable. In this view of the matter, the impugned order to the extent it declined to entertain the Review Application on the premise that after the dismissal of the Special Leave Petition, no Review Petition was maintainable, is liable to be set aside.
The matter is remitted to the High Court to decide the Review Application on merits - Appeal disposed off.
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2024 (4) TMI 1144
Levy of penalty - dates wrongly mentioned at the time of generating e-way bills - HELD THAT:- This Court in M/s Hindustan Herbal Cosmetics v. State of U.P. and Others [2024 (1) TMI 282 - ALLAHABAD HIGH COURT] held that mens rea to evade tax is essential for imposition of penalty. The factual aspect in the present case clearly does not indicate any mens rea whatsoever for evasion of tax. The goods were accompanied by the relevant documents.
The finding of the authorities with regard to intention to evade tax is not supported by the factual matrix of the case, and accordingly, the impugned orders dated February 22, 2020 and March 19, 2020 are quashed and set aside.
Petition allowed.
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2024 (4) TMI 1085
Integrity of the electoral process - suspicion of infringement of a right - Seeking direction to return to the paper ballot system - in alternative it is sought that printed slip from the Voter Verifiable Paper Audit Trail machine be given to the voter to verify, and put in the ballot box, for counting - in alternative it is sought that there should be 100% counting of the VVPAT slips in addition to electronic counting by the control unit.
As held by SANJIV KHANNA, J.
HELD THAT:- In-detail review of the administrative and technical safeguards of the EVM mechanism conducted - The discussion aims to address the uncertainties and provide assurance regarding the integrity of the electoral process. A voting mechanism must uphold and adhere to the principles of security, accountability, and accuracy. An overcomplex voting system may engender doubt and uncertainty, thereby easing the chances of manipulation. In the considered opinion, the EVMs are simple, secure and user-friendly. The voters, candidates and their representatives, and the officials of the ECI are aware of the nitty-gritty of the EVM system. They also check and ensure righteousness and integrity. Moreover, the incorporation of the VVPAT system fortifies the principle of vote verifiability, thereby enhancing the overall accountability of the electoral process.
Thera are no doubt, but to only further strengthen the integrity of the election process, following directions are given:-
(a) On completion of the symbol loading process in the VVPATs undertaken on or after 01.05.2024, the symbol loading units shall be sealed and secured in a container. The candidates or their representatives shall sign the seal. The sealed containers, containing the symbol loading units, shall be kept in the strong room along with the EVMs at least for a period of 45 days post the declaration of results. They shall be opened, examined and dealt with as in the case of EVMs.
(b) The burnt memory/microcontroller in 5% of the EVMs, that is, the control unit, ballot unit and the VVPAT, per assembly constituency/assembly segment of a parliamentary constituency shall be checked and verified by the team of engineers from the manufacturers of the EVMs, post the announcement of the results, for any tampering or modification, on a written request made by candidates who are at SI. No. 2 or Sl. No. 3, behind the highest polled candidate. Such candidates or their representatives shall identify the EVMs by the polling station or serial number. All the candidates and their representatives shall have an option to remain present at the time of verification. Such a request should be made within a period of 7 days from the date of declaration of the result. The District Election Officer, in consultation with the team of engineers, shall certify the authenticity/intactness of the burnt memory/ microcontroller after the verification process is conducted. The actual cost or expenses for the said verification will be notified by the ECI, and the candidate making the said request will pay for such expenses. The expenses will be refunded, in case the EVM is found to be tampered.
As per Dipankar Datta, J.
HELD THAT:- A citizen's right 'to freedom of speech and expression' Under Article 19(1) is not absolute; the State by virtue of Article 19(2) can place reasonable restrictions on these rights. There can be no doubt that the electorate has a right to be informed if the votes, as cast, are accurately recorded. The dispute, in the present writ proceedings, centres around the modality of delivering the information. The Petitioners have characterised the present procedure, wherein the voter after pressing the 'blue button' and casting his/her vote can see his VVPAT slip for 7 seconds through an illuminated glass window, as inadequate for the voter to verify if his/her vote, as cast, is recorded.
To buttress their submission, the Petitioners have relied on the proviso to Rule 49M(3) of the Conduct of Election Rules, 1961. The Petitioners urge that the ECI is not following the statutory mandate provided in the Election Rules - as long as there is no allegation of statutory breach, there can be no substitution of the Court's view for the view of the ECI that the light in the VVPAT would be on for 7 (seven) seconds and not more.
Upon the conclusion of polling, there exists yet another remedy Under Rule 56-D, for a candidate to apply for a count of the VVPAT slips, should any discrepancy be suspected. Thus, it is manifest that there is in place a stringent system of checks and balances, to prevent any possibility of a miscount of votes, and for the voter to know that his/her vote has been counted. There can be no doubt that such a system, which is distinctly more satisfactory compared to the system of the yester-years, suitably satisfies the voter's right Under Article 19(1)(a) to know that his/her vote has been counted as recorded.
The Republic has prided itself in conducting free and fair elections for the past 70 years, the credit wherefor can largely be attributed to the ECI and the trust reposed in it by the public. While rational scepticism of the status quo is desirable in a healthy democracy, this Court cannot allow the entire process of the underway General Elections to be called into question and upended on mere apprehension and speculation of the Petitioners. The Petitioners have neither been able to demonstrate how the use of EVMs in elections violates the principle of free and fair elections; nor have they been able to establish a fundamental right to 100% VVPAT slips tallying with the votes cast.
The Petitioners' apprehensions are misplaced. Reverting to the paper ballot system, rejecting inevitable march of technological advancement, and burdening the ECI with the onerous task of 100% VVPAT slips tallying would be a folly when the challenges faced in conducting the elections are of such gargantuan scale.
The mere suspicion that there may be a mismatch in votes cast through EVMs, thereby giving rise to a demand for a 100% VVPAT slips verification, is not a sufficient ground for the present set of writ petitions to be considered maintainable. To maintain these writ petitions, it ought to have been shown that there exists a tangible threat of infringement; however, that has also not been substantiated. Thus, without any evidence of malice, arbitrariness, breach of law, or a genuine threat to invasion of rights, the writ petitions could have been dismissed as not maintainable. But, considering the seriousness of the concerns that the Court suo motu had expressed to which responses were received from the official of the ECI as well as its senior counsel, the necessity was felt to issue the twin directions in the greater public interest and to sub-serve the demands of justice.
While maintaining a balanced perspective is crucial in evaluating systems or institutions, blindly distrusting any aspect of the system can breed unwarranted scepticism and impede progress. Instead, a critical yet constructive approach, guided by evidence and reason, should be followed to make room for meaningful improvements and to ensure the system's credibility and effectiveness.
Be it the citizens, the judiciary, the elected representatives, or even the electoral machinery, democracy is all about striving to build harmony and trust between all its pillars through open dialogue, transparency in processes, and continuous improvement of the system by active participation in democratic practices. Our approach should be guided by evidence and reason to allow space for meaningful improvements. By nurturing a culture of trust and collaboration, we can strengthen the foundations of our democracy and ensure that the voices and choices of all citizens are valued and respected. With each pillar fortified, our democracy stands robust and resilient.
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2024 (4) TMI 1084
Abatement of suit claiming injunction - effect on suit when the plaintiff seeking injunction, dies - disheritance by deceased-plaintiff - whether cause of action in an injunction suit will survive to the legal heirs of deceased plaintiff and whether upon death of the plaintiff, the relief of injunction would be rendered nugatory?
HELD THAT:- There is a distinction between the death of the plaintiff and the death of the defendant. The injunction is operative against the defendants. Upon death of the defendant, the question of binding his legal representatives by injunction would not arise. But in a case where the plaintiff, who is seeking injunction dies, the same position will not hold good. The right of injunction does not die with the death of plaintiff.
In the instant case, the plaintiff i.e. deceased-Usha Tiwari had sought injunction that the petitioners herein should not interfere in her possession over the property in dispute. A suit claiming injunction of this nature does not abate on death of the plaintiff. The cause of action would survive to his/her legal representatives, who come in possession of the said property - One thing is clear that if the respondent and his son succeed in proving before the trial court that petitioner No. 1 has been disinherited from the suit property and that original plaintiff had executed a Will in favour of Yujure Tiwari, her grandson, they have a right to obtain an injunction against the petitioners. Therefore, it cannot be stated that right to suit does not survive in their favour.
The learned civil judge has not discussed the matter in detail and has simply noted that as per the plaintiff, cause of action does not survive and that no application has been moved for impleadment of legal representatives though period of 90 days is over. On this ground, the learned civil judge has concluded that the suit stands abated. The order passed by the civil court does not deal with the merits of the issue relating to abatement of the suit. The said observation of the learned civil judge could not have precluded the learned appellate court from considering the issue on its merits and for taking a different view.
Thus, it cannot be stated that the learned appellate court has, while passing the impugned order, either committed any illegality or it has acted with material irregularity - The revision petition is without merit and is dismissed as such.
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2024 (4) TMI 1007
Validity of Arbitral Award - Ordering the petitioner to repay advances for rejected testing kits with interest and legal costs - Grievance of the petitioner is that the petitioner could not reexport the testing kits as the seals of the testing kits had been tampered/broken - HELD THAT:- Scope of interference under Section 34 of the Arbitration and Conciliation Act, 1996 is very limited.
This Court can neither sit as a Court of appeal or re-appreciate the evidence placed before the Arbitral Tribunal or substitute the finding of the Arbitral Tribunal with its own conclusion on facts or evidence. In this connection, the decision of the Honourable Supreme Court in PROJECT DIRECTOR, NATIONAL HIGHWAYS NO. 45 E AND 220 NATIONAL HIGHWAYS AUTHORITY OF INDIA VERSUS M. HAKEEM & ANR. [2021 (7) TMI 1343 - SUPREME COURT] is invited wherein, it was held that the power to set aside an Arbitral Award under Section 34 of the Arbitration And Conciliation Act, 1996 does not include the authority to modify the award. It further held that an award can be 'set aside' only on limited grounds as specified in Section 34 of the Act and it is not an appellate provision. It further held that an application under Section 34 for setting aside an award does not entail any challenge on merits to an award.
The Honourable Supreme Court in Ssangyong Engineering and Construction Co Ltd versus National Highway Authority of India [2019 (5) TMI 1879 - SUPREME COURT] has held that an award can be set aside on the ground of patent illegality under Section 34 (2-A) of the Arbitration And Conciliation Act, 1996 only where the illegality in the award goes to the root of the matter. It further held that erroneous application of law by an Arbitral Tribunal or the re-appreciation of evidence by the Court under Section 34 (2-A) of the Arbitration and Conciliation Act, 1996 is not available - The Court held that the above ground is available only where the view taken by the Arbitral Tribunal is an impossible view while construing the contract between the parties or where the award of the Tribunal lacks any reasons.
The records also indicate that the petitioner had been promised to return the balance as and when payment were received from the buyer on the export made by the petitioner. Therefore, even on this count, theory put forward before this Court that the Impugned Award suffers from patent illegality is not acceptable. Therefore, the impugned Award does not call for any interference - There is nothing on record to show that there is a patent illegality in the impugned award or to infer a conclusion that the impugned award is in conflict with the public policy of India. The impugned award indicates that the evidence was examined and there was an admission by the petitioner to refund the amount on the returned 1,48,800 test kits.
The interpretation placed by the arbitral tribunal in so far as proviso to Section 16 (1) of the Sale of Goods Act, 1930, also does not call for any interference.
This original petition filed under Section 34 of the Arbitration and Conciliation Act, 1996 has to fail - Therefore, this original petition is liable to be dismissed and is accordingly dismissed.
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2024 (4) TMI 954
Food Safety and Standards - Inadequate labeling - Misbranding - Adulteration of foods or not - sugar boiled confectionaries - packets did not show the prescribed particulars such as complete address of the manufacturer and the date of manufacturing - violation of Rule 32(c) and (f) of the Prevention of Food Adulteration Rules, 1955.
Appellants would argue that the entire case of the prosecution is liable to be dismissed for the simple reason that the Appellants were charged Under Rule 32(c) and (f) of the Rules but these provisions were not related to misbranding and were regarding something else.
HELD THAT:- The Prevention of Food Adulteration Act, 1954 was repealed by the introduction of the Food Safety and Standards Act, 2006 where Section 52 provides a maximum penalty of Rs. 3,00,000/- for misbranded food. There is no provision for imprisonment.
Whether the Appellant can be granted the benefit of the new legislation and be awarded a lesser punishment as is presently prescribed under the new law? This Court in T. Barai v. Henry Ah Hoe [1982 (12) TMI 186 - SUPREME COURT], had held that when an amendment is beneficial to the Accused it can be applied even to cases pending in Courts where such a provision did not exist at the time of the commission of offence.
The present Appellant No. 2, at this stage, is about 60 years of age and the crime itself is of the year 2000, and twenty- four years have elapsed since the commission of the crime. Vide Order dated 06.08.2018, this Court had granted exemption from surrendering to Appellant No. 2. Considering all aspects, more particularly the nature of offence, though the findings of the Courts below regarding the offence is upheld, but the sentence of Appellant No. 2 from three months of simple imprisonment along with fine of Rs. 1,000/- is convertred to a fine of Rs. 50,000/-. The sentence of Appellant No. 1 which is for a fine of Rs. 2000/- is upheld.
The appeal is partly allowed.
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2024 (4) TMI 953
Dishonour of cheque - insufficient funds - vicarious liability - liability of group companies - liability common Directors of the group, namely, Right Choice Group of Companies - Lifting of the corporate veil - HELD THAT:- Section 141 of the NI Act is neither intended nor extends the vicarious liability on the group companies. It is intended to create vicarious liability only on the persons and officers who are either in-charge of the company, which is the main accused, or have connived or are negligent, resulting in the accused company committing the offence under Section 138 of the NI Act. Section 141 of the NI Act, therefore, cannot extend to the group companies - Section 138 of the NI Act, in fact, creates liability only on the ‘drawer of the cheque’. As it creates a criminal liability, there is no scope of lifting of the corporate veil. It is only because of the application of Section 141 of the NI Act, that the liability, in case the offence under Section 138 of the NI Act is committed by a company, has been extended by a deeming fiction on the person in-charge of or holding an office, making them equally liable for the offence. The said provision, however, cannot extend to other corporate entities or group of companies.
This Court in Yashovardhan Birla v. CECIL Webber Engineering Ltd., [2023 (4) TMI 706 - DELHI HIGH COURT], has reiterated that large business conglomerates may have a number of companies under them, which may be ultimately managed by a particular family or group of investors, but to run the day-to-day affairs, officers and professionals are appointed in such companies. In such cases, the head of the Company cannot be made liable and taken into the purview of Section 141 of the NI Act, doing so would unfairly and unnecessarily expand the provisions of vicarious liability under the NI Act.
Thus, the respondent no. 3 could not have been proceeded against only on the allegation that it is a group company of the accused no. 1, which is the drawer of the cheque in question.
Liability of common Directors of the group, namely, Right Choice Group of Companies - HELD THAT:- The petitioner has placed no document on record to show that the respondent nos. 1 and 2 were the Directors of the accused no. 1, which is the drawer of the cheque. There is no averment in the complaint that the respondent nos. 1 and 2 were persons in-charge of or responsible to the accused no. 1 for the conduct of its business. Apart from stating that the respondent nos. 1 and 2 have acted in connivance with accused nos. 1 and 3 or that the accused no. 3 has acted on their express instructions, there is no material placed on record by the petitioner for the said averment - The only reliance of the petitioner even in the present petition is on the alleged LinkedIn profile of respondent no. 1, which inter alia claims respondent no. 1 to be the Director of the Right Choice Group. However, accused no. 1 is not the Right Choice Group but Right Choice Marketing Solutions JLT.
There are no merit in the challenge made by the petitioner in the present petition - petition dismissed.
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2024 (4) TMI 897
Legal implication of a promotional trailer - promotional trailer is an offer or a promise - unfair trade practice - absence of specific content from the trailer in the movie - whether there is any ‘deficiency’ in the provision of the entertainment service that the consumer has availed by paying the consideration through the purchase of a ticket? - HELD THAT:- A promotional trailer is unilateral. It is only meant to encourage a viewer to purchase the ticket to the movie, which is an independent transaction and contract from the promotional trailer. A promotional trailer by itself is not an offer and neither intends to nor can create a contractual relationship. It is well-established in contractual jurisprudence that an advertisement generally does not constitute an offer and is merely an ‘invitation to offer’ or ‘invitation to treat’.
Since the promotional trailer is not an offer, there is no possibility of it becoming a promise. Therefore, there is no offer, much less a contract, between the appellant and the complainant to the effect that the song contained in the trailer would be played in the movie and if not played, it will amount to deficiency in the service. The transaction of service is only to enable the complainant to watch the movie upon the payment of consideration in the form of purchase of the movie ticket. This transaction is unconnected to the promotional trailer, which by itself does not create any kind of right of claim with respect to the content of the movie.
In various decisions, LAKHANPAL NATIONAL LTD. VERSUS M.R.T.P. COMMISSION AND ANOTHER [1989 (5) TMI 321 - SUPREME COURT], KLM ROYAL DUTCH AIRLINES VERSUS DIRECTOR GENERAL OF INVESTIGATION AND REGISTRATION [2008 (10) TMI 353 - SUPREME COURT]. This Court has held that a false statement that misleads the buyer is essential for an ‘unfair trade practice’. ibid. A false representation is one that is false in substance and in fact, and the test by which the representation must be judged is to see whether the discrepancy between the represented fact and the actual fact would be considered material by a reasonable person.
The ingredients of ‘unfair trade practice’ under Section 2(1)(r)(1) are not made out in this case. The promotional trailer does not fall under any of the instances of “unfair method or unfair and deceptive practice” contained in clause (1) of Section 2(1)(r) that pertains to unfair trade practice in the promotion of goods and services. Nor does it make any false statement or intend to mislead the viewers - There is another important distinction that we must bear in mind, i.e., the judicial precedents on this point do not relate to transactions of service relating to art. Services involving art necessarily involve the freedom and discretion of the service provider in their presentation. This is necessary and compelling by the very nature of such services. The variations are substantial, and rightly so.
The findings of the impugned order that there is deficiency of service and unfair trade practice is set aside - appeal allowed.
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