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• 2006 (12) TMI 588
  

  The Supreme Court of India delivered a judgment addressing the validity of amendments to the Foreigners (Tribunal) Order, 1964, and the Foreigners (Tribunal) for Assam Order, 2006. The judgment arose from writ petitions challenging these amendments under Article 32 of the Constitution of India. The central issues revolved around the treatment of illegal migrants in Assam and the applicability of the Foreigners Act, 1946.

  1. ISSUES PRESENTED and CONSIDERED

  The Court considered the following core legal questions:

  • Whether the amendments to the Foreigners (Tribunal) Order, 1964, making it inapplicable to Assam, were valid.
  • Whether the Foreigners (Tribunal) for Assam Order, 2006, was valid and consistent with the earlier judgment in Sonowal I.
  • Whether the amendments violated Article 14 and Article 355 of the Constitution of India.
  • Whether the subordinate legislation could nullify the directions issued by the Supreme Court in Sonowal I.

  
  

  2. ISSUE-WISE DETAILED ANALYSIS

  
  

  Issue 1: Validity of Amendments to the 1964 Order

  • Relevant Legal Framework and Precedents: The Foreigners Act, 1946, and the Foreigners (Tribunal) Order, 1964, provided the legal framework. The precedent was the Supreme Court's earlier decision in Sonowal I.
  • Court's Interpretation and Reasoning: The Court held that the amendment making the 1964 Order inapplicable to Assam was discriminatory and violated Article 14 of the Constitution. The Court emphasized that Assam should not be treated differently from other states regarding illegal migrants.
  • Key Evidence and Findings: The Court noted the lack of justification for excluding Assam from the 1964 Order and highlighted the absence of any peculiar situation warranting such exclusion.
  • Application of Law to Facts: The Court applied Article 14 to determine that the exclusion of Assam was arbitrary and lacked a rational basis.
  • Treatment of Competing Arguments: The Court rejected the argument that the amendment was necessary due to the unique situation in Assam, finding no factual basis for such claims.
  • Conclusions: The amendment to the 1964 Order was declared invalid and struck down.

  
  

  Issue 2: Validity of the 2006 Order

  • Relevant Legal Framework and Precedents: The Foreigners Act, 1946, and the Citizenship Act, 1955, were relevant. Sonowal I served as a crucial precedent.
  • Court's Interpretation and Reasoning: The Court found that the 2006 Order attempted to nullify the directions in Sonowal I and was inconsistent with the existing legal framework.
  • Key Evidence and Findings: The Court observed that the 2006 Order created a separate procedure for Assam without sufficient justification and was an arbitrary exercise of power.
  • Application of Law to Facts: The Court applied the principles of Article 14 and Article 355, emphasizing the need for uniform treatment of illegal migrants across India.
  • Treatment of Competing Arguments: The Court dismissed the argument that the 2006 Order was necessary to address the unique challenges in Assam, citing a lack of evidence.
  • Conclusions: The 2006 Order was quashed as it was found to be unreasonable and arbitrary.

  
  

  3. SIGNIFICANT HOLDINGS

  • Preserve Verbatim Quotes of Crucial Legal Reasoning: "The amendment to the 1964 Order making it inapplicable to Assam is unreasonable and arbitrary, violating Article 14 of the Constitution of India."
  • Core Principles Established: The judgment reinforced the principle of equal treatment under Article 14 and the duty of the government to protect national security under Article 355.
  • Final Determinations on Each Issue: The amendments to the 1964 Order and the 2006 Order were both struck down. The Court directed the government to implement the directions from Sonowal I within four months.

  The Supreme Court's decision emphasized the need for uniform application of laws concerning illegal migrants and underscored the government's responsibility to adhere to constitutional principles while addressing national security concerns.

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• 2006 (12) TMI 587
  
  Issues:
  1. Condonation of delay in filing the appeal.
  2. Legality of the appointment of the Adjudication Officer.
  3. Interpretation of Sections 49(3), (4), and 5(a) of the Foreign Exchange Management Act, 1999.
  4. Challenge to the financial condition assessment of the appellant.
  5. Failure to file a reply before the Adjudicating Officer.
  
  Condonation of Delay:
  The appellant sought condonation of a two-day delay in filing the appeal, which was allowed by the court based on reasons presented in the application.
  
  Legality of Adjudication Officer's Appointment:
  The appellant challenged the legality of the appointment of the Adjudication Officer, contending it was illegal and void. The court examined the provisions of the Foreign Exchange Management Act, 1999, and the Foreign Exchange Regulation Act, 1973. The court noted that the appointment was made under the repealed Act, but as per the new Act, actions under the repealed Act are deemed to be under the new Act, thus upholding the legality of the appointment.
  
  Interpretation of Sections 49(3), (4), and 5(a) of the Act:
  The court analyzed Sections 49(3), (4), and 5(a) of the Foreign Exchange Management Act, 1999, which specify the transition from the repealed Act to the new Act. It was clarified that offenses under the repealed Act would continue to be governed by its provisions, and actions taken under the repealed Act are deemed to be under the new Act.
  
  Financial Condition Assessment Challenge:
  The appellant disputed the financial condition assessment made by the Single Judge, arguing it was perverse. However, the court upheld the Single Judge's findings, stating that the appellant failed to provide evidence of financial hardship to deposit the penalty amount, rendering the right of appeal illusory.
  
  Failure to File Reply Before Adjudicating Officer:
  The court agreed with the Single Judge's findings that the appellant failed to submit a reply before the Adjudicating Officer. Only a general submission was made, which the court found unreasonable, leading to the dismissal of the writ petition.
  
  In conclusion, the court dismissed the appeal and the application for interim relief, upholding the findings and conclusions of the Single Judge on all issues raised by the appellant.

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• 2006 (12) TMI 586
  
  The petitioner filed a winding-up petition against Wizard Biotech (P.) Ltd. for an outstanding loan amount. The respondent-company had paid most of the loan, and a settlement was reached, leading the court to dismiss the petition. (2006 (12) TMI 586 - RAJASTHAN HIGH COURT)

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• 2006 (12) TMI 585
  
  Issues Involved:
  
  1. Increase in interest rate for payments to workers.
  2. Approval and modification of the scheme of compromise or arrangement.
  3. Claims and liabilities of secured and unsecured creditors.
  4. Re-employment and rehabilitation of workers.
  5. Role and financial capacity of the sponsor.
  6. Jurisdiction and powers of the Company Court under Sections 391 and 392 of the Companies Act, 1956.
  
  Detailed Analysis:
  
  1. Increase in Interest Rate for Payments to Workers:
  
  The judgment begins with the parties agreeing to increase the interest rate on the down payment to workers from 10% to 11% per annum. This increase was accepted by the petitioner, Shramik Utkarsha Sabha (Sabha), and its sponsor. Consequently, the amounts offered to the workers by both the petitioner and the Sabha were adjusted based on this new interest rate.
  
  2. Approval and Modification of the Scheme of Compromise or Arrangement:
  
  The petitioner filed a Company Petition under Sections 391 to 394 of the Companies Act, 1956, proposing a scheme of compromise/arrangement. The scheme aimed to settle dues with equity shareholders, secured creditors, unsecured creditors, statutory creditors, and workers. However, the workers did not approve the scheme during the meeting, leading to the proposal of modifications by the Sabha. The modified scheme included a higher payment to workers and a plan for the revival of the company's textile unit, which gained support from both workers' unions.
  
  3. Claims and Liabilities of Secured and Unsecured Creditors:
  
  The secured creditor, Bali Properties & Investments Pvt. Ltd., had its claim addressed in the original scheme, but the petitioner's proposal was vague regarding the satisfaction of this claim. The modified scheme by the Sabha proposed to settle the secured creditor's claim by paying the decretal amount in High Court Suit No.3290 of 1986. The unsecured creditors and statutory creditors were offered a specific amount, which was accepted by the majority.
  
  4. Re-employment and Rehabilitation of Workers:
  
  The modified scheme by the Sabha included a proposal for starting a new textile unit, which would provide re-employment to eligible workers. The sponsor agreed to deposit a bank guarantee as a performance guarantee for this purpose. The scheme aimed to employ approximately 300 workers and offered additional benefits such as the revival of the textile business.
  
  5. Role and Financial Capacity of the Sponsor:
  
  The sponsor, Prateek Apparels Pvt. Ltd., was questioned regarding its financial capacity to fulfill the scheme's obligations. Despite concerns about its negative net worth, the sponsor and the Sabha assured the Court of their ability to bring in the required funds. The Court noted that the sponsor's financial capacity would be tested by its ability to fulfill the scheme's promises, secured by the bank guarantee.
  
  6. Jurisdiction and Powers of the Company Court under Sections 391 and 392 of the Companies Act, 1956:
  
  The Court discussed its jurisdiction under Sections 391 and 392, emphasizing its supervisory role rather than an appellate one. The Court has the power to modify a scheme to ensure its proper working and can substitute sponsors if necessary. The judgment cited previous cases to affirm that the Court can sanction modifications to a scheme, especially when the original scheme is unworkable due to lack of approval from key stakeholders like workers and secured creditors.
  
  Conclusion:
  
  The Court sanctioned the modified scheme proposed by the Sabha, which was more beneficial to all parties involved, including workers, secured creditors, and shareholders. The original scheme by the petitioner was rejected due to opposition from workers and the secured creditor. The judgment highlighted the Court's role in ensuring that a workable and fair scheme is implemented, considering the interests of all stakeholders.

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• 2006 (12) TMI 584
  
  The High Court dismissed the appeal regarding the maintainability of a suit by a public trust, as the trust was found to be unregistered despite the requirement under the Rajasthan Public Trust Act. The lower appellate court's decision was upheld.

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• 2006 (12) TMI 583
  
  Issues:
  1. Validity of the order dated 07/12/06 passed by respondent No. 3 and the legal advice/order dated 07/12/06 tendered by respondent No. 6 (7).
  2. Eligibility of a candidate with pending criminal cases to contest the Students' Union election.
  3. Interpretation of paragraph 6.5.7 of the judgment in the case of University of Kerala v. Council, Principals' Colleges, Kerala (2006) 8 S.C.C. 304.
  4. Challenge to the legal opinion given by the lawyer and its implications.
  
  Analysis:
  
  Issue 1:
  The writ petition sought to quash the order dated 07/12/06 passed by respondent No. 3 and the legal advice/order dated 07/12/06 tendered by respondent No. 6 (7). The court examined the prayers in the petition and the grounds for challenging the said orders.
  
  Issue 2:
  The case revolved around the eligibility of a candidate, petitioner No. 1, with pending criminal cases to contest the Students' Union election. The court considered the petitioner's argument that since he had not been convicted by any court of law, he should be allowed to participate in the election despite facing criminal charges.
  
  Issue 3:
  The interpretation of paragraph 6.5.7 of the judgment in the University of Kerala case was a crucial aspect of the judgment. The court referred to previous judgments and the Lyngdoh Committee's recommendations to determine that a candidate facing criminal trial would be disqualified from participating in the election, even if not yet convicted.
  
  Issue 4:
  The court addressed the challenge to the legal opinion given by the lawyer and its implications. It emphasized the importance of the privileged communication between a lawyer and client, highlighting that challenging a legal opinion itself was not permissible. The court condemned the petitioner's actions as an attempt to scandalize the university and the lawyer.
  
  In conclusion, the court dismissed the writ petition with exemplary costs of Rs. 50,000, emphasizing that it was devoid of merit and filed with malicious intent. The costs were to be deposited within a specified time frame, with a portion allocated to the university's counsel for facing humiliation in court and mental agony, and the remainder to legal services and mediation centers.

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• 2006 (12) TMI 582
  
  Issues Involved:
  
  1. Construction and interpretation of the Will dated 12th April 1989.
  2. Legality and enforceability of the trust provisions in the Will.
  3. Entitlement to profits, income, and benefits from the bequeathed property until the beneficiary attains the age of 21 years.
  4. Determination of rights under the originating summons procedure.
  5. Validity of the administrator's report and the notice of motion.
  
  Detailed Analysis:
  
  1. Construction and Interpretation of the Will:
  
  The primary issue was the interpretation of the Will dated 12th April 1989 executed by Pilloo M. Ghaswala. The Will's clauses, especially Clauses 11, 13, 14, 15, 18, 24, 40, and 42, were scrutinized to determine whether the bequeaths made to Lyla were absolute or held in trust for Zenia until she attained the age of 21 years. The court emphasized that the testatrix considered Lyla extravagant and irresponsible, thus directing the trustees to hold the properties in trust for Zenia. The court concluded that the properties vested in Zenia on the testatrix's death but were to be handed over to her upon attaining the age of 21 years.
  
  2. Legality and Enforceability of the Trust Provisions:
  
  The court examined whether the directions in the Will to hold the shares/bequeaths in trust until Zenia attained the age of 21 years were legal, enforceable, and within the testatrix's authority. The court found that these provisions were neither illegal nor unenforceable against Lyla. The testatrix had the authority to impose such conditions, and the trust provisions were binding upon Lyla.
  
  3. Entitlement to Profits, Income, and Benefits:
  
  The court addressed whether Lyla was entitled to enjoy the profits, income, and other benefits from the bequeathed properties until Zenia attained the age of 21 years. The court held that the estate vested in Zenia on the testatrix's death, and Lyla was not entitled to any income or monetary benefits from the estate until Zenia reached the age of 21 years.
  
  4. Determination of Rights Under the Originating Summons Procedure:
  
  The court discussed the appropriateness of using the originating summons procedure for determining the construction of the Will. It was noted that this procedure is intended for resolving disputes about the interpretation of written instruments in a summary manner. The court approved the use of this procedure in the present case, emphasizing that it was not suitable for complex factual disputes requiring extensive oral evidence.
  
  5. Validity of the Administrator's Report and the Notice of Motion:
  
  The court reviewed the administrator's report and the notice of motion taken out by Zenia's guardian. The learned single judge had rejected the administrator's report and directed Lyla to return the money disbursed to her. The court upheld this decision, finding no error in the learned single judge's order. Additionally, the court dismissed the appeals challenging the order that directed the Solicitors, L.C. Tolat & Co., to deposit a sum of Rs. 9,11,152/- in court.
  
  Conclusion:
  
  The court disposed of the appeals by affirming the construction of the Will as indicated in the judgment. The appeals challenging the administrator's report and the notice of motion were dismissed. The court directed that the estate vested in Zenia on the testatrix's death and should be handed over to her upon attaining the age of 21 years. The interim orders passed in these appeals were discharged, and the oral prayer for a stay of the judgment was rejected.

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• 2006 (12) TMI 581
  
  Issues involved:
  The judgment involves the issue of whether a cheque issued as security can be misutilized by the payee, the significance of admitting signature in a cheque, and the necessity of sending a cheque to an expert for comparison.
  
  Issue 1: Misutilization of a Cheque as Security:
  The petitioner, an accused in a case under Section 138 of the Negotiable Instruments Act, contended that the cheque in question was handed over as a blank signed cheque as security for a loan availed by her husband. The petitioner claimed that the entries in the cheque, apart from the signature, were made by the complainant, and the cheque was being misutilized to make a false claim. The trial court rejected the petitioner's application to send the cheque to an expert, citing the admission of the signature. However, the petitioner maintained that the other entries were not made by her, and the complainant misused the blank signed cheque.
  
  Issue 2: Significance of Admitting Signature in a Cheque:
  The judgment clarifies that while admitting the signature in a cheque is crucial, it does not equate to admitting execution. The distinction between admitting signature and admitting execution is emphasized, with the right of the accused to challenge the authenticity of other entries in the cheque preserved. The court must consider all evidence to determine if the admission of signature, along with other circumstances, is sufficient to prove execution.
  
  Issue 3: Necessity of Sending Cheque to an Expert:
  The judgment distinguishes the present case from a previous ruling, highlighting that the accused consistently denied making the entries in the cheque, and the complainant asserted that the accused did write the entries. The court directs the petitioner to file a fresh application clearly requesting a comparison of admitted handwriting with the disputed entries. If such a request is made, the cheque will be sent to an expert for comparison. The judgment emphasizes that the complainant may be compensated if found guilty, with directions for payment of interest on the cheque amount if the complainant succeeds.
  
  This summary provides a detailed overview of the issues involved in the judgment, addressing the misutilization of a cheque as security, the significance of admitting signature in a cheque, and the necessity of sending a cheque to an expert for comparison.

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• 2006 (12) TMI 580
  
  Issues Involved:
  1. Legitimacy of the demand for bribe.
  2. Reliability of the trap proceedings and evidence.
  3. Application of Section 20 of the Prevention of Corruption Act.
  4. High Court's interference with the Trial Court's judgment of acquittal.
  
  Summary:
  
  1. Legitimacy of the demand for bribe:
  The appellant, a Surveyor in the Mandal Revenue Office, was accused of demanding a bribe of Rs. 2,000/- to allow the removal of casuarina trees. The demand was initially made by the Mandal Revenue Officer (MRO) for Rs. 5,000/-, which the appellant allegedly reduced to Rs. 2,000/-. The complaint was lodged 15 days after the alleged demand, during which the casuarina growth was already cut and removed by P.W.3 without further hindrance.
  
  2. Reliability of the trap proceedings and evidence:
  The Special Judge found several inconsistencies and contradictions in the prosecution's evidence. The trap proceedings were deemed unreliable due to the involvement of Shri Ram Murthy, who had animosity towards the appellant. The evidence showed that only the fingers of one hand turned pink despite the appellant allegedly counting the money with both hands. The post-trap panchnama was found to be interpolated, and the manner in which the trap was conducted raised doubts about its legitimacy.
  
  3. Application of Section 20 of the Prevention of Corruption Act:
  The High Court relied on Section 20 of the Prevention of Corruption Act, presuming guilt based on the recovery of tainted money. However, the Supreme Court noted that the presumption u/s 20 arises only if the demand is proved, which was not the case here. The demand itself had not been substantiated, and the burden of proof on the accused is not as heavy as that on the prosecution.
  
  4. High Court's interference with the Trial Court's judgment of acquittal:
  The Supreme Court criticized the High Court for overturning the well-reasoned judgment of acquittal by the Special Judge. The High Court failed to apply the proper tests for interfering with an acquittal, especially when two views were possible. The Supreme Court emphasized that the High Court should not have interfered in a "slipshod manner" and should have ensured that no two views were possible before reversing the acquittal.
  
  Conclusion:
  The Supreme Court set aside the High Court's judgment, reinstating the acquittal of the appellant. The appeal was allowed, and the appellant was discharged from the bail bonds.

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• 2006 (12) TMI 579
  
  Issues Involved:
  1. Rejection of the second bail application u/s 439 of the Code of Criminal Procedure, 1973.
  2. Allegations against the appellant involving organized crime and abetment under MCOCA.
  3. Considerations for granting bail under MCOCA and general principles.
  
  Summary:
  
  1. Rejection of the second bail application u/s 439 of the Code of Criminal Procedure, 1973:
  The appellant's second bail application was rejected by the High Court of Judicature at Bombay. The appellant, an Advocate and former Minister in Andhra Pradesh, was implicated in a case involving organized crime. The High Court concluded that there was prima facie material on record indicating the appellant's knowledge and involvement in the organized crime syndicate led by Abdul Karim Ladsab Telgi.
  
  2. Allegations against the appellant involving organized crime and abetment under MCOCA:
  The prosecution alleged that the appellant was involved in the kidnapping of Telgi's employees and demanded a ransom of Rs. 2 crores, leading to a closer association with Telgi. The appellant was accused of providing protection to Telgi's counterfeit stamp operations in Andhra Pradesh, receiving substantial sums in return. The appellant was charged under multiple sections of the Indian Penal Code, the Bombay Stamps Act, and the Maharashtra Control of Organized Crimes Act (MCOCA).
  
  3. Considerations for granting bail under MCOCA and general principles:
  The Supreme Court emphasized that the considerations for granting bail in non-bailable offenses include the nature and seriousness of the offense, character of the evidence, and the possibility of the accused tampering with witnesses or committing further offenses. Under MCOCA, additional limitations are imposed by Section 21(4), requiring the court to be satisfied that there are reasonable grounds for believing the accused is not guilty and unlikely to commit further offenses while on bail. The Court noted that the alleged conversation between the appellant and Telgi might indicate acquaintance but was insufficient to prove direct involvement in organized crime. Given the appellant's role and the period of incarceration, the Supreme Court found it a fit case for granting bail.
  
  Conclusion:
  The Supreme Court allowed the appeal, setting aside the High Court's order, and directed that the appellant be enlarged on bail with conditions, including furnishing a personal bond and surrendering his passport. The observations made were tentative and not to be taken as final opinions on the merits of the case.

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• 2006 (12) TMI 578
  
  Issues involved: Application of Section 427 of the Code of Criminal Procedure for concurrent sentencing.
  
  Summary:
  The appeal considered the application of Section 427 of the Code of Criminal Procedure in a case involving a bank employee convicted for offenses under the Indian Penal Code and Prevention of Corruption Act. The appellant sought concurrent sentencing for two separate cases, but the High Court rejected the application. The appellant's counsel argued that since the nature of the offenses in both cases was the same, the sentences should run concurrently.
  
  In the judgment, it was noted that the appellant had been convicted in two separate cases and sentenced to rigorous imprisonment for different periods. The Sessions Judge directed the sentences to run concurrently. However, the High Court did not consider the request for concurrent sentencing, and the Special Leave Petitions filed by the appellant were dismissed.
  
  The appellant's counsel relied on previous court decisions to support the argument for concurrent sentencing. However, the Supreme Court held that the provision of Section 427 was not invoked during the original cases or appeals. The separate application filed before the High Court after the dismissal of special leave petitions was deemed not maintainable. The Court concluded that the High Court could not exercise its inherent jurisdiction in this case as Section 427 was not applied earlier, and thus the appeal was dismissed for lack of merit.

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• 2006 (12) TMI 577
  
  Issues involved: Violation of Regulations 7 and 10 of the takeover code, control by Ketan Parekh, acquisition of shares without disclosure.
  
  Violation of Regulation 10:
  The appellants collectively acquired less than 15% of the total paid-up share capital of the target company, thus not violating Regulation 10 of the takeover code. The impugned order holding them guilty of this violation is set aside based on this finding.
  
  Violation of Regulation 7:
  The charge against the appellants was that they, acting in concert, acquired shares exceeding 5% of the paid-up share capital without reporting to the company, thereby violating Regulation 7(1) of the takeover code. The appellants did not file a reply to the show cause notice, leading to a presumption of admission of the charges. The adjudicating officer found that the appellants had indeed violated Regulation 7, as they collectively acquired 8.46% shares without informing the company. Despite verbal denials during proceedings, the appellants failed to provide evidence to refute the allegation of acting in concert. The charge was deemed precise, and the appellants were expected to rebut the allegations, which they failed to do. The argument of vagueness in the charge was dismissed, citing known shareholding patterns and control by Ketan Parekh. The appeals were partly allowed, setting aside the violation of Regulation 10 but upholding the findings regarding Regulation 7. The penalty amount was directed to be paid within 45 days.
  
  Separate Judgment:
  Triumph International Finance India Ltd. did not appeal the findings against it in the second show cause notice, resulting in those findings becoming final.

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• 2006 (12) TMI 576
  
  Issues Involved:
  1. Suspension of substantive sentence under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985.
  2. Delay in hearing appeals under the Act.
  3. Constitutional validity of Section 32-A of the Act.
  4. Guidelines for granting bail during the pendency of appeals.
  
  Issue-Wise Detailed Analysis:
  
  1. Suspension of Substantive Sentence:
  The applicant-appellant sought suspension of his sentence under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985, citing that he had already served over seven years of his 12-year sentence and that his appeal was unlikely to be heard soon.
  
  2. Delay in Hearing Appeals:
  The court noted the significant delay in hearing appeals under the Act, with many convicts languishing in jail due to the backlog. The court decided to frame guidelines for granting bail in such cases where appeals cannot be heard within a reasonable time.
  
  3. Constitutional Validity of Section 32-A:
  Section 32-A of the Act, which restricted the suspension of sentences during appeals, was discussed. The Supreme Court in "Maktool Singh v. State of Punjab" held that Section 32-A took away the powers of courts to suspend sentences during appeals. However, in "Dadu alias Tulsi Dass v. State of Maharashtra," the Supreme Court struck down Section 32-A to the extent it barred courts from suspending sentences during appeals, emphasizing the right to liberty and speedy trial under Article 21 of the Constitution.
  
  4. Guidelines for Granting Bail:
  The court acknowledged the need for guidelines to address the delay in hearing appeals and the plight of convicts. The following principles were adopted for granting bail:
  
  - Convicts with Sentences Over Ten Years: Entitled to bail after serving a total of six years, including at least fifteen months post-conviction.
  - Convicts with Ten-Year Sentences: Entitled to bail after serving a total of four years, including at least fifteen months post-conviction.
  - Convicts with Marginally More Than Non-Commercial Quantity: Entitled to bail after serving three years, including at least twelve months post-conviction.
  - Convicts Not Arrested at the Spot: Entitled to bail after serving two years, including at least twelve months post-conviction, provided they are not charged under Sections 25, 27-A, and 29 of the Act.
  
  Exceptions:
  - Proclaimed offenders, absconders, repeat offenders, foreign nationals, and those convicted with extraordinary heavy quantities of contraband were excluded from these guidelines.
  - Convicts under Sections 31 and 31A of the Act were also excluded.
  
  Additional Considerations:
  - The guidelines would not affect the right to apply for interim suspension of sentence due to exceptional hardship or the right to seek bail on merits.
  - Listing of an appeal should not impede the exercise of bail, and previous rejection of bail applications would not bar a convict from seeking bail after the necessary detention period.
  
  Conclusion:
  The court allowed the applicant-appellant's request for bail, considering he had served over seven years of his sentence and the appeal was unlikely to be heard soon. The court directed the release of the applicant-appellant on bail, subject to furnishing adequate surety bonds, and ordered the dissemination of the judgment to relevant prison authorities for informing all prisoners.

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• 2006 (12) TMI 575
  
  Issues Involved:
  
  1. Classification of imported goods.
  2. Rejection of declared value and enhancement of value.
  3. Demand for differential duty.
  4. Confiscation of goods.
  5. Imposition of penalties.
  6. Validity of Show Cause Notice (SCN) issued by DRI.
  
  Summary:
  
  1. Classification of Imported Goods:
  The Tribunal examined the classification of 100 MTs of Tin Sheets/Coils imported earlier and 48.851 MTs covered by Bill of Entry No. 404351 dated 20/6/2002. The Commissioner concluded that these goods were Tin Sheets/Coils of width above 600 mm, classifiable under CTH 7210.90, based on the confessional statements of the importer and the test reports from the National Metallurgical Laboratory (NML).
  
  2. Rejection of Declared Value and Enhancement of Value:
  The declared value of the goods was rejected due to mis-declaration of description and value. The Commissioner enhanced the value of the goods to US$ 465 per metric ton for Belgium origin and US$ 475 per metric ton for German origin under Rule 6 of the Customs Valuation Rules, 1988. The Tribunal noted that the enhancement was done without furnishing copies of Bills of Entry relied upon, which violated principles of natural justice.
  
  3. Demand for Differential Duty:
  The Commissioner demanded differential duty of Rs. 7,43,752/- on 100 tons of tin sheets already cleared and Rs. 7,79,287/- on 48.851 MTs of tin sheets pending assessment. The amounts deposited by the importer were appropriated towards the duty liability. The Tribunal upheld the demand for differential duty but emphasized the need for adherence to principles of natural justice.
  
  4. Confiscation of Goods:
  The Commissioner ordered the confiscation of 68.4 MTs of tin coils/sheets seized from the factory, 31.6 MTs of tin coils/sheets already sold, 67.13 MTs of TFSSD used to conceal the tin sheets, and 48.851 MTs of tin sheets covered by Bill of Entry No. 404351 dated 20/06/02 under Section 111(d), (l) & (m) of the Customs Act, 1962. The Tribunal upheld the confiscation but noted that goods not in the custody of customs cannot be confiscated.
  
  5. Imposition of Penalties:
  Penalties were imposed on M/s. Baburam Premchand under Section 114A for past clearances and under Section 112(a) for the consignment covered by Bill of Entry No. 404351 dated 20/06/02. The Tribunal noted that penalties under both sections could be imposed for different transactions but emphasized the need for proper adjudication.
  
  6. Validity of Show Cause Notice (SCN) Issued by DRI:
  The appellants challenged the validity of the SCN issued by DRI, arguing that it was not valid. However, during the hearing, the challenge was withdrawn. The Tribunal did not find merit in this argument and proceeded with the adjudication based on the available evidence.
  
  Conclusion:
  The Tribunal set aside the impugned order and remanded the matter to the Commissioner for fresh adjudication, ensuring adherence to principles of natural justice and providing the importer with an opportunity to contest the enhancement of value by furnishing copies of the Bills of Entry relied upon. The Tribunal emphasized the need for proper adjudication of duty, penalty, fine, and interest based on the determined assessable value.

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• 2006 (12) TMI 574
  
  The Supreme Court of India dismissed the special leave petition as the Department did not file any appeal against the decisions relied upon by the High Court.

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• 2006 (12) TMI 573
  
  Issues Involved:
  1. Legality of the advertisement inviting applications for a fresh contract to run a slaughterhouse.
  2. High Court's direction to allow the respondent to run the slaughterhouse for ten years.
  3. High Court's jurisdiction in fixing terms and conditions of the contract.
  4. Compliance with Article 14 of the Constitution regarding transparency and fairness in public contracts.
  5. Interim arrangements for running the slaughterhouse until final decisions are made.
  
  Detailed Analysis:
  
  1. Legality of the Advertisement:
  The appellant, Nagar Nigam Meerut, issued an advertisement on 6.12.2004 inviting applications for a fresh contract to run a slaughterhouse. The advertisement's validity was challenged by the respondent. The Supreme Court found no illegality in the advertisement, stating that the terms of the invitation to tender are not open to judicial scrutiny unless they are wholly arbitrary, discriminatory, or actuated by malice. The Court emphasized that the Government must have the freedom of contract and some fair play in the joints is necessary for an administrative body functioning in an administrative sphere.
  
  2. High Court's Direction:
  The High Court directed that the respondent should be allowed to run the slaughterhouse for ten years on specific terms and conditions, including financial deposits and modernization commitments. The Supreme Court held that the High Court's directions were totally unwarranted and that such decisions should be made by the Municipal Corporation, not the Court. The Court stated that it is not within the High Court's functions to fix the terms and conditions of a contract or to thrust a contract upon a non-willing party.
  
  3. High Court's Jurisdiction:
  The Supreme Court clarified that while the High Court has wide jurisdiction under Article 226 of the Constitution, it should exercise this jurisdiction only when essential. The Court should not interfere in administrative actions unless they are contrary to legislative policy or arbitrary, attracting the wrath of Article 14 of the Constitution. The Court emphasized that the statutory functions of the Corporation must be carried out by the Corporation itself, not by the High Court.
  
  4. Compliance with Article 14:
  The Supreme Court reiterated that a State or its instrumentalities cannot distribute its largesse at its own sweet will and must ensure transparency in public contracts. Normally, this is achieved by holding public auctions or inviting tenders after wide publicity. The Court found that the High Court's direction to grant the contract to the respondent for ten years without a public auction violated Article 14. The Court stated that contracts should be granted through public auction/public tender to ensure transparency, maximize economy and efficiency, and eliminate irregularities and corrupt practices.
  
  5. Interim Arrangements:
  The Court directed the appellant Corporation to issue a fresh advertisement calling for bids within six weeks and to take a final decision within eight weeks thereafter. Until such time, the Corporation should decide how the slaughterhouse should be allowed to function by making suitable interim arrangements. The Court also directed the State of U.P. to reconsider the feasibility of granting a longer-term license for running the slaughterhouse, emphasizing the need for modernization to ensure public health and welfare.
  
  Conclusion:
  The Supreme Court set aside the High Court's judgment, emphasizing the need for transparency and fairness in public contracts. It directed the appellant Corporation to re-advertise the contract and make interim arrangements for running the slaughterhouse. The Court also urged the State to reconsider its policy on granting longer-term licenses for slaughterhouses to ensure public health and welfare.

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• 2006 (12) TMI 572
  
  Issues Involved:
  1. Appointment of an Administrator/Special Officer.
  2. Appointment of an independent auditor.
  3. Notification of changes in the Register of Members.
  4. Transfer and endorsement of shares.
  5. Restraining the N.C. Jain group from managing the company.
  6. Allegations of oppression and mismanagement.
  7. Non-compliance with the Memorandum of Understanding (MOU).
  8. Change of Registered Office.
  9. Removal of petitioners from the Board of Directors.
  
  Summary:
  
  1. Appointment of an Administrator/Special Officer:
  The petitioners sought the appointment of an Administrator/Special Officer to take charge of the management and affairs of the respondent company. However, the court found no substantial evidence to justify such an appointment.
  
  2. Appointment of an independent auditor:
  The petitioners requested an independent auditor to re-audit the company's accounts since 2000. The court did not find sufficient grounds to grant this request.
  
  3. Notification of changes in the Register of Members:
  The petitioners alleged that the respondent company failed to notify changes in its Register of Members. The court noted that the petitioners did not provide conclusive evidence to support this claim.
  
  4. Transfer and endorsement of shares:
  The petitioners claimed that the respondent company did not endorse share certificates handed over for transfer. The court observed that the petitioners did not apply for duplicate share certificates despite being advised to do so, leading to doubts about their possession of the shares.
  
  5. Restraining the N.C. Jain group from managing the company:
  The petitioners sought to restrain the N.C. Jain group from managing the company. The court found that the petitioners failed to prove acts of oppression or mismanagement by the respondents.
  
  6. Allegations of oppression and mismanagement:
  The petitioners alleged various acts of oppression and mismanagement, including siphoning off funds and unilateral closure of bank accounts. The court found that these allegations were not conclusively proven and noted that the petitioners themselves had acted contrary to the company's interests.
  
  7. Non-compliance with the Memorandum of Understanding (MOU):
  The petitioners contended that the respondents did not comply with the MOU, which envisaged equal representation and joint financial authority. The court found that the petitioners did not bring in the required funds as per the MOU and acted contrary to the company's interests.
  
  8. Change of Registered Office:
  The petitioners alleged that the respondents changed the Registered Office without following proper procedures. The court noted that the Registered Office was shifted at the petitioners' own insistence and found no merit in this allegation.
  
  9. Removal of petitioners from the Board of Directors:
  The petitioners claimed they were removed from the Board of Directors illegally. The court held that such directorial complaints could not be adjudicated in Section 397/398 proceedings and noted the lack of evidence for the petitioners' claims.
  
  Conclusion:
  The court dismissed the petition, stating that the petitioners failed to establish any acts of oppression or mismanagement. The petitioners' conduct was found to be prejudicial to the company's interests, and the relief sought would be oppressive to the respondents. The petition was dismissed with no order as to costs, and all interim orders were vacated.

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• 2006 (12) TMI 571
  
  Issues involved: Preliminary objections to the appeals u/s Section 35B(2) and applicability of Section 12E.
  
  Preliminary Objections u/s Section 35B(2): The appeals and cross objections were against an Order-in-appeal that set aside the order-in-original confirming the demand and penalties. The respondents raised objections to the appeals based on the applicability of Section 35B(2). The issue was whether the Commissioner had followed the law as laid down in the Section, specifically regarding the legality and propriety of the order-in-appeal. The Commissioner had to form an opinion that the order was not legal and proper before filing an appeal. The grounds of appeal indicated the Commissioner's opinion, but it was unclear if this opinion was formed prior to filing the appeals. The Tribunal found this issue arguable and could not form a conclusive opinion.
  
  Applicability of Section 12E: The second preliminary objection raised was regarding the provisions of Section 12E, which empower a higher officer to exercise powers and duties conferred upon sub-ordinate officers. The Commissioner had filed the appeals himself, whereas Section 35B(2) mandates the Commissioner to direct any Central Excise officer to file an appeal. A similar issue was raised in a previous case, where there was a difference of opinion among the Tribunal members. The Member (Judicial) held that the Commissioner filing the appeal himself did not comply with Section 35B(2) and that the appeal was not maintainable on these grounds. The Member pointed out that Section 12E and Section 35B serve different objectives and the Commissioner's action did not align with the requirements of Section 35B(2). The Tribunal agreed with the majority decision and dismissed the appeals on the preliminary objections raised by the respondents without delving into the merits.
  

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• 2006 (12) TMI 570
  
  Issues Involved:
  1. Rate of entertainment duty payable by the Petitioners for the period from 16th September 1994 to 24th December 1994.
  2. Rate of duty payable for the period commencing 25th December 1994.
  3. Legality and validity of the action of Respondents in seeking to recover duty payable during 25th December 1989 to 23rd August 1990 already adjusted against refund payable to Petitioners.
  
  Summary:
  
  Issue 1: Rate of Entertainment Duty Payable from 16th September 1994 to 24th December 1994
  The Petitioners challenged the Respondents' action of recovering entertainment duty at 7.5% instead of 3.75% for the period from 16th September 1994 to 24th December 1994. The Court held that the rate of duty for the 4th and 5th year from the date of commencement of the amusement park should be 3.75%, as per Section 3(5)(a) of the Bombay Entertainment Duty Act, 1923. The Court emphasized that the statutory language should not be altered to exclude amusement parks from Section 3(2).
  
  Issue 2: Rate of Duty Payable from 25th December 1994
  The Court determined that from the 6th year onwards, the entertainment duty payable by the Petitioners would be 7.5%. This conclusion was drawn from a combined reading of Sections 3(1)(b), 3(2), and 3(5)(a) & (b) of the Act. The Court rejected the Respondents' argument that amusement parks should be excluded from the concessional provisions of Section 3(2).
  
  Issue 3: Legality and Validity of Recovering Duty Payable During 25th December 1989 to 23rd August 1990
  The Petitioners contested the Respondents' action of recovering entertainment duty already adjusted against a refund for the period from 25th December 1989 to 23rd August 1990. The Court held that the burden of proof to demonstrate that there was no unjust enrichment lies with the Petitioners. The Petitioners were allowed to present relevant material to the appropriate authority to justify their claim.
  
  Conclusion:
  The Court ruled in favor of the Petitioners regarding the rate of entertainment duty, establishing that:
  1. No duty is payable for the first three years from the commencement of the amusement park.
  2. A duty of 3.75% is payable for the 4th and 5th years.
  3. A duty of 7.5% is payable from the 6th year onwards.
  
  The Court also directed that the Petitioners must provide evidence to counter claims of unjust enrichment for the refund issue. The rule was made absolute in both petitions, with no order as to costs.

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• 2006 (12) TMI 569
  
  Issues Involved:
  1. Constitutional validity of the Chhattisgarh Co-operative Societies (Amendment) Act, 2004.
  2. Legislative competence of the Chhattisgarh State Legislature to re-enact a law previously struck down.
  3. Arbitrary and unconstitutional nature of the amendment.
  4. Impact on democratic structure and management of co-operative societies.
  5. Registrar's unbridled power and its implications.
  
  Detailed Analysis:
  
  1. Constitutional Validity of the Amendment Act, 2004:
  The petitioners challenged the constitutional validity of the Chhattisgarh Co-operative Societies (Amendment) Act, 2004, which amended Section 49 of the Chhattisgarh Co-operative Societies Act, 1960. The amendment omitted Sub-sections (7AA) and (7AAA) and substituted a new Sub-section (8). The petitioners argued that this amendment was arbitrary, violative of Article 14, and against the democratic principles enshrined in the Constitution.
  
  2. Legislative Competence of the Chhattisgarh State Legislature:
  The petitioners contended that the Chhattisgarh State Legislature lacked competence to re-enact a law that had been previously struck down by the High Court of Madhya Pradesh in Anurudh Prasad Shastri v. State of M.P. The court, however, held that the Chhattisgarh Legislative Assembly, established on 1st November 2000, had unimpeachable power to legislate or amend the law. Section 79 of the M.P. Reorganization Act, 2000, provided ample authority to the Government to amend the law.
  
  3. Arbitrary and Unconstitutional Nature of the Amendment:
  The petitioners argued that the amendment was arbitrary as it allowed the Registrar to assume control of the co-operative societies' management without a prescribed period for holding elections. This provision was seen as subversive of the democratic process and violative of Article 14. The court noted that the amendment put a premium on the default of the Registrar in holding elections and unreasonably denied the opportunity to elected members to manage the affairs of the society.
  
  4. Impact on Democratic Structure and Management of Co-operative Societies:
  The court emphasized that the democratic structure of co-operative societies was compromised by the amendment. The amendment allowed the Registrar to take over the management of the societies immediately after the expiry of the committee's term, without a clear timeframe for conducting new elections. This was seen as detrimental to the democratic functioning of the societies and contrary to the objectives of promoting democratic institutions.
  
  5. Registrar's Unbridled Power and Its Implications:
  The court highlighted the potential misuse of power by the Registrar, who, as an officer working under the Government, could be influenced by political motives. The amendment allowed the Registrar to control the management of the societies for an indefinite period, which was seen as arbitrary and violative of democratic principles.
  
  Conclusion:
  The court held that the impugned amendment was neither arbitrary nor violative of Article 14 of the Constitution. The amendment was aimed at maintaining democratic values by ensuring that no committee continued in office beyond its term. The court dismissed all the writ petitions and directed the Registrar, Co-operative Societies, to hold elections within six months to bring fresh elected bodies into existence.

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