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2003 (2) TMI 562
Issues:
Challenge to legality of penalty imposed for violation of FERA section 8(1) based on possession of foreign exchange at airport, appellant's residency status, retracted statement, and appeal against currency confiscation.
Analysis:
The appeal challenges a penalty imposed for violating FERA section 8(1) due to the appellant being intercepted at the airport with foreign exchange. The appellant claimed non-residency in India under FERA section 2(p) citing a case precedent. The appellant's statement to Customs authorities about purchasing foreign currencies through brokers for business abroad was retracted. The appellant argued against contravention of FERA section 8(1) due to admitted currency recovery pending appeal with CEGAT.
The Addl. Director rejected the appellant's defense, stating that FERA section 8(1) applies to any person in India, including non-resident Indians (NRIs) while in India. The defense's argument of legal currency accumulation during visits was dismissed for not complying with FERA section 8(3) requiring encashment or surrender within specific time limits. The Addl. Director found no evidence supporting legal acquisition of foreign exchange in India and rejected the defense's contentions.
The Chairperson agreed with the Addl. Director's view, noting the absence of CEGAT's order setting aside the currency confiscation. The penalty was reduced to Rs. 25,000 from Rs. 50,000 based on a pre-deposit of Rs. 25,000 by the appellant. The appeal was dismissed with the modified penalty amount.
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2003 (2) TMI 561
Issues Involved:
1. Maintainability of the Writ Petitions.
2. Exercise of discretion under Section 311 of Cr.P.C.
3. Allegations of malafide intentions in recalling witnesses.
4. Impact of political rivalry on the case.
5. Previous withdrawal of a similar application and its implications.
6. Timing and delay in filing the application for recalling witnesses.
Issue-wise Detailed Analysis:
1. Maintainability of the Writ Petitions:
The petitioners filed Criminal Writ Petitions under Section 482 of Cr.P.C. after withdrawing their Criminal Revision Applications. The contention was whether the Writ Petitions were maintainable given the previous withdrawal. The court noted that inherent powers under Section 482 could be invoked even if revision was barred under Section 397(2) of Cr.P.C., as established in Madhu Limaye's case. However, the court also considered the decision in Rajinder Prasad's case, which emphasized that inherent powers should be exercised sparingly and only in cases of failure of justice or misuse of judicial mechanism. Given the similarity of facts with Rajinder Prasad's case, the court concluded that the Writ Petitions were not maintainable as the revision applications had been previously withdrawn.
2. Exercise of Discretion under Section 311 of Cr.P.C.:
Section 311 of Cr.P.C. allows the court to summon or recall witnesses if their evidence is essential to the just decision of the case. The court found that the Sessions Judge had the discretion to recall and re-examine the four witnesses, as their evidence was deemed essential. The court clarified that lacuna in the prosecution case refers to inherent weaknesses in the case, not oversights or inadvertence in presenting evidence. Since the witnesses had initially turned hostile due to threats and were now willing to testify truthfully, recalling them did not constitute filling a lacuna in the prosecution case.
3. Allegations of Malafide Intentions in Recalling Witnesses:
The petitioners argued that the prosecution's application to recall witnesses was malafide, lacking details about the threats and the timing of the witnesses' change of heart. The court noted that the witnesses had provided affidavits explaining the threats and their willingness to now testify truthfully. The court found no evidence of malafide intentions, as the witnesses' statements under Section 161 of Cr.P.C. remained consistent, and their delayed willingness to testify did not imply malafide actions.
4. Impact of Political Rivalry on the Case:
The petitioners highlighted the political rivalry between the accused and the prosecution witnesses, suggesting that the application to recall witnesses was influenced by this rivalry. The court acknowledged the political context but emphasized that the witnesses' presence at the incident and their initial statements under Section 161 of Cr.P.C. were undisputed. The court concluded that the political rivalry did not undermine the credibility of the witnesses' affidavits or the prosecution's application to recall them.
5. Previous Withdrawal of a Similar Application and Its Implications:
The petitioners argued that the prosecution's opposition to a previous application for recalling a witness (Criminal Application No. 3160 of 2001) barred them from making a similar application. The court found that the previous application was opposed mainly due to the delay and the request for transferring the case, not the merits of recalling the witness. Since the previous application was withdrawn without a court decision on the merits, it did not operate as res judicata, allowing the prosecution to file a new application.
6. Timing and Delay in Filing the Application for Recalling Witnesses:
The petitioners contended that the delayed application to recall witnesses indicated malafide intentions. The court noted that the trial was ongoing, with some witnesses yet to be examined, including the Investigating Officer. The delay in the witnesses coming forward was attributed to the threats they faced, and their willingness to testify now was seen as an effort to provide truthful evidence. The court concluded that the delay did not imply malafide intentions and did not prejudice the accused's defense.
Conclusion:
The court dismissed the Writ Petitions, finding no abuse of process or miscarriage of justice in the Sessions Judge's order to recall and re-examine the witnesses. The court emphasized that the witnesses' testimony was essential for a just decision, and the accused would have the opportunity to cross-examine them. The court also refused the petitioners' request for time to approach the Supreme Court, noting the trial's prolonged delay.
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2003 (2) TMI 560
The Supreme Court of India dismissed the special leave petition but granted the petitioner one week to deposit the directed amount with 12% interest. Failure to pay within the week would result in 18% interest.
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2003 (2) TMI 559
Issues Involved:
1. Suppression of factual information in the attestation form.
2. Validity of the termination of services based on the suppression of information.
3. The High Court's decision to set aside the Tribunal's order.
4. The impact of the respondent's educational background and language proficiency on the case.
5. The relevance of the subsequent withdrawal of the criminal case.
Detailed Analysis:
1. Suppression of Factual Information in the Attestation Form:
The respondent was selected for the post of Physical Education Teacher and was required to fill in an attestation form. In column No. 12(I), he mentioned "No" despite having a pending criminal case. This was deemed as suppression of factual information, leading to the termination of his services. The Tribunal dismissed the respondent's challenge, stating that his explanation of not understanding the terms "prosecution" or "conviction" due to his Hindi medium education did not inspire confidence. The Tribunal noted that the respondent, being a graduate, intentionally concealed the facts.
2. Validity of the Termination of Services Based on the Suppression of Information:
The memorandum of appointment clearly stated that suppression of any information would be considered a major offense, potentially leading to dismissal from service. The attestation form required the respondent to disclose any criminal cases, which he failed to do. The Supreme Court emphasized that the purpose of seeking this information was to verify the character and antecedents of the respondent. The suppression of material information and making a false statement had a clear bearing on the respondent's suitability to continue in service. The Tribunal upheld the termination, and the Supreme Court found no error in this decision.
3. The High Court's Decision to Set Aside the Tribunal's Order:
The High Court set aside the Tribunal's order, reasoning that the respondent's non-mention of the criminal case could be due to his Hindi medium education and the subsequent withdrawal of the case by the State Government. The High Court also noted that the criminal case did not involve moral turpitude. However, the Supreme Court found that the High Court committed a manifest error in accepting these contentions. The Supreme Court held that the High Court failed to appreciate that the requirement of disclosing the criminal case was to judge the respondent's character and antecedents at the time of filling the attestation form, irrespective of the subsequent withdrawal of the case.
4. The Impact of the Respondent's Educational Background and Language Proficiency on the Case:
The respondent argued that his Hindi medium education led to a misunderstanding of the terms in the attestation form. However, the Supreme Court noted that the respondent, holding B.A., B.Ed., and M.Ed. degrees, could not claim ignorance of English terms. The Court found it difficult to accept that he did not understand the contents of column Nos. 12 and 13 while correctly understanding other columns. The Court also noted that if he had any difficulty, he could have sought help from someone.
5. The Relevance of the Subsequent Withdrawal of the Criminal Case:
The High Court considered the withdrawal of the criminal case as a factor in setting aside the termination. However, the Supreme Court held that the subsequent withdrawal of the case was immaterial. The requirement to disclose the criminal case was for the purpose of verifying the respondent's character and antecedents at the time of filling the attestation form. The Supreme Court emphasized that the nature or gravity of the offense was not the primary concern; rather, it was the suppression of material information that was crucial.
Conclusion:
The Supreme Court allowed the appeal, setting aside the High Court's judgment and restoring the Tribunal's order. The Court held that the respondent's suppression of factual information in the attestation form justified the termination of his services. The High Court's reliance on the subsequent withdrawal of the criminal case and the respondent's educational background was found to be erroneous. The Supreme Court reiterated that the suppression of material information had a clear bearing on the respondent's suitability to continue in service, and the Tribunal's decision to uphold the termination was correct. No costs were awarded.
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2003 (2) TMI 558
The High Court of Punjab and Haryana dismissed a writ petition challenging a notice issued by the Assessing Officer under Sections 147/148 of the IT Act, 1961. The court held that objections must be filed before the AO, who will decide them before proceeding with the assessment, citing the law laid down in GKN Driveshafts (India) Ltd v. ITO (2003) 259 ITR 19. The writ petition was deemed not maintainable and was dismissed.
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2003 (2) TMI 557
Issues Involved:
1. Invocation of Section 391 of the Code of Criminal Procedure, 1973.
2. Rebuttal of presumption under Sections 138 and 139 of the Negotiable Instruments Act.
3. Consideration of additional evidence at the appellate stage.
4. Alleged abuse of procedural law and miscarriage of justice.
Issue-wise Detailed Analysis:
1. Invocation of Section 391 of the Code of Criminal Procedure, 1973:
The applicant sought to invoke Section 391 to lead additional evidence at the appellate stage. The Sessions Court rejected this application, leading to the present challenge. The applicant argued that the appellate court should exercise its power under Section 391 to allow him to rebut the presumption under Section 139 of the Negotiable Instruments Act by examining himself and presenting further evidence.
2. Rebuttal of presumption under Sections 138 and 139 of the Negotiable Instruments Act:
The applicant contended that there was no consideration for the cheques issued, thus no legally enforceable debt existed. The trial court convicted the applicant under Section 138, sentencing him to one year of rigorous imprisonment and a fine of Rs. 5,000, with an additional compensation of Rs. 1,00,00,000 to the complainant. The applicant's defense was that the payment was contingent upon the transfer of shares, which had not occurred, justifying his instruction to the banker to stop payment.
3. Consideration of additional evidence at the appellate stage:
The applicant argued that the Supreme Court's decisions in Hiten Dalal's case and K.N. Bina v. Muniyappan necessitated leading evidence to rebut the presumption under Section 139. The applicant emphasized that the presumption could not be rebutted merely by documents but required proof through testimony. The applicant was ready to subject himself to cross-examination to establish his defense.
4. Alleged abuse of procedural law and miscarriage of justice:
The applicant claimed that the rejection of his application by the Sessions Court was unjust, as it did not consider whether additional evidence was necessary to determine the truth and serve justice. The applicant argued that the failure to allow him to present additional evidence would result in a miscarriage of justice, as he would be convicted based on a technicality without a fair opportunity to present his defense.
Judgment Analysis:
The court held that no case was made out for interfering with the Sessions Court's order. It was noted that the Supreme Court's decisions cited by the applicant did not introduce new legal principles but reiterated existing standards. The court emphasized that Section 391 should be exercised with caution and only to meet the ends of justice, not to fill in lacunae in the evidence.
The applicant had multiple opportunities during the trial to present his defense but chose not to. The court observed that the applicant's current attempt to lead additional evidence appeared to be an effort to set up a new defense, which was not permissible. The court found that allowing such applications could lead to a flood of similar requests, potentially delaying and subverting justice.
Ultimately, the court rejected the application, stating that the applicant's failure to present his defense during the trial could not be remedied at the appellate stage under Section 391. The court directed that the observations made in the judgment should not influence the hearing of the appeal.
Conclusion:
The application under Section 391 of the Code of Criminal Procedure, 1973, was rejected. The court held that the applicant had not demonstrated a valid reason for leading additional evidence at the appellate stage and that the principles of justice and fair play did not justify such an exercise in this case. The appeal would proceed without considering the additional evidence sought by the applicant.
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2003 (2) TMI 556
Issues:
Challenge to High Court judgment on remission classification based on criminal acts under Section 432 of the Code and Article 14 of the Constitution.
Analysis:
1. The State of Haryana challenged the High Court's judgment excluding certain convicts from remission benefits based on criminal acts under a notification issued under Section 432 of the Code. The respondent, serving a sentence for rape, questioned the classification of offences for remission denial, alleging discrimination under Article 14 of the Constitution. The High Court, following precedent, held the State cannot carve out exceptions for remission based on heinous offences, directing remission for the respondent.
2. The High Court's earlier judgment in Suresh Kumar's case and the Andhra Pradesh High Court's decision emphasized that Parliament's amendment in Section 433A restricted the State's power to impose remission restrictions. The State argued for a reasonable classification based on criminal acts for remission, while the respondent contended that the State exceeded its authority in creating a classification for remission denial beyond Section 433A's scope.
3. The Supreme Court analyzed the classification's constitutionality under Article 14, emphasizing valid classifications must have an intelligible differentia and rational relationship with the law's objective. Previous decisions upheld the validity of classifications based on the gravity of offences for remission purposes, recognizing the State's discretion in granting or denying remission based on the nature of the offence committed.
4. The Court concluded that the exclusion of convicts from remission benefits under the impugned notification was justified. Offences like rape, dowry death, abduction, murder of a child, NDPS, TADA, and offences against the State were categorized as grave offences deserving exclusion from remission. The Court upheld the State's classification as valid for determining remission eligibility based on the severity of the crimes committed.
5. Regarding the State's power to restrict remission, the Court clarified that while Section 433A limited remission for specific convicts, Section 432 granted the State broad powers for suspension, remission, and commutation. The State could classify convicts for remission eligibility as long as the classification was valid. The Court corrected the High Court's misinterpretation of the Andhra Pradesh High Court's judgment, affirming the State's authority to restrict remission based on valid classifications.
6. The Court acknowledged the limited validity of the notification in question for the year 1995 and upheld the remission benefit granted to the respondent by the High Court. While appreciating the amicus curiae's services, the Court upheld the State's classification in the notification, allowing the appeal to the extent indicated and disposing of the case accordingly.
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2003 (2) TMI 555
Issues:
Appeal against refusal to entertain application under Section 151 of CPC for recalling an order. Applicability of Order 32 Rule 15 CPC for appointment of a guardian. Error in treating application for recalling as an appeal. Jurisdictional error in passing judgment without holding inquiry on mental infirmity.
Analysis:
The judgment in question involved an appeal against the refusal of the High Court to entertain an application under Section 151 of the Code of Civil Procedure for recalling an order. The case originated from a civil suit for partition of immovable properties where the respondent sought the appointment of a guardian for an elderly appellant based on alleged mental incapacity. The trial court dismissed the application, prompting a revision application under Section 115 of CPC, which was allowed by the High Court, directing the trial court to appoint a guardian. The appellants subsequently filed an application for recalling the order, arguing that notices were not served, but it was mistakenly treated as an appeal by a Division Bench, leading to dismissal.
The main contention raised in the appeal was regarding the interpretation of Order 32 Rule 15 CPC, which deals with the appointment of a guardian for persons of unsound mind or incapable of protecting their interests due to mental infirmity. The court highlighted that the respondent did not claim the appellant was of unsound mind but had requested an inquiry into mental infirmity. The trial court's failure to conduct this inquiry led to a jurisdictional error in passing the judgment, which was upheld by the Division Bench erroneously treating the recalling application as an appeal.
The Supreme Court, after considering the arguments presented by both parties, concluded that the Division Bench erred in treating the application for recalling as an appeal against the earlier order. The court emphasized the importance of complying with Order 32 Rule 15 CPC, which necessitates a proper inquiry into mental capacity before appointing a guardian. As no such inquiry was conducted, the judgment was set aside, and the matter was remitted to the trial court for a fresh consideration in accordance with the relevant provisions of the Civil Procedure Code.
In conclusion, the appeal was allowed, and the impugned judgments were set aside, emphasizing the necessity of following procedural requirements and conducting inquiries as mandated by the law. The court clarified the application of Order 32 Rule 15 CPC and directed a reevaluation of the case based on the legal provisions and observations made in the judgment.
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2003 (2) TMI 554
Issues Involved:
1. Legality of termination of the appellant's service.
2. Applicability of the principle of legitimate expectation.
3. Entitlement to gratuity and pension benefits.
4. Consideration of voluntary retirement.
Detailed Analysis:
1. Legality of Termination of the Appellant's Service:
The appellant was appointed on a temporary basis by the Local Self-Government Department, Government of Rajasthan, under the Municipal Council, Ganganagar, with the stipulation that her appointment would last for six months or until a candidate selected by the Rajasthan Public Service Commission (Service Commission) became available. Despite being selected by the Service Commission in 1976 and 1982, she did not join and continued through extensions granted by the Local Self-Government Department. Her services were terminated on 1.10.1988 when a Service Commission-selected candidate became available. The appellant challenged the termination, and the High Court initially stayed the termination and later ruled it illegal, directing regularization of her services. However, the Division Bench overturned this decision, stating she remained a temporary employee without the right to hold the post permanently.
2. Applicability of the Principle of Legitimate Expectation:
The appellant argued that her long tenure of 28 years, including 14 years post-termination due to interim orders, created a legitimate expectation of permanency. The court examined the principles of legitimate expectation, emphasizing that it arises when a benefit or advantage is expected to continue based on past actions or representations by the decision-maker. However, the court found no evidence that any authority had created an impression of waiving the original conditions of her temporary appointment. The court concluded that mere continuance did not imply waiver and that no legitimate expectation could be founded on such an unfounded impression.
3. Entitlement to Gratuity and Pension Benefits:
The appellant claimed entitlement to benefits under the Rajasthan Municipal Services (Pension) Rules, 1989, having participated in the provident fund, pension, and gratuity schemes. The court acknowledged her participation in these schemes but did not delve into the specifics of her entitlement, instead suggesting that the government consider her claims for benefits and voluntary retirement sympathetically and promptly.
4. Consideration of Voluntary Retirement:
The appellant had applied for voluntary retirement two years prior to the judgment, and no decision had been made. The court noted her long service and participation in benefit schemes, expressing the hope that the government would consider her application for voluntary retirement and the associated benefits in the proper perspective, uninfluenced by the dismissal of the appeal.
Conclusion:
The Supreme Court upheld the Division Bench's judgment, affirming that the appellant's termination was lawful and that her long tenure did not confer any right to regularization. The principle of legitimate expectation did not apply as there was no evidence of waiver of the temporary nature of her appointment. The court dismissed the appeal but urged the government to consider her claims for pension, gratuity, and voluntary retirement benefits sympathetically and promptly.
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2003 (2) TMI 553
Issues:
1. Quashing of order passed by Additional Chief M.M.
2. Discharge of applicants in cases under Income Tax Act.
3. Consideration of Section 194(c), Section 204, and 35(2) of Income Tax Act.
4. Liability of non-executive Directors in tax deduction matters.
5. Requirement of notice before granting sanction to prosecute.
6. Definition of Principal Officer under Income Tax Act.
7. Averments required in complaints to establish liability.
8. Necessity of evidence before determining liability.
9. Application of legal principles in determining liability.
10. Primafacie case disclosure in complaints.
11. Legal liability of Directors in day-to-day affairs of the Company.
12. Burden of proof on accused in case of lack of knowledge.
Analysis:
1. The judgment concerns the quashing of an order passed by the Additional Chief Metropolitan Magistrate and the discharge of applicants in cases related to the Income Tax Act. The applicants sought discharge based on insufficient material, contending that they were not principal officers of the company responsible for tax deductions.
2. The applicants argued that as non-executive Directors, they were not involved in the day-to-day affairs of the company and were not responsible for tax deposits. They highlighted the delay in tax remittance by the company and the lack of notice before prosecution sanction was granted.
3. The applicants relied on specific sections of the Income Tax Act to support their claim that liability for tax deductions rested with the company and its principal officers. They emphasized that no notice was served to them by the assessing officer to establish their role as principal officers.
4. The judgment discussed the necessity of averments in complaints to establish liability, citing legal precedents that required credible materials to show active involvement in the business. The court emphasized the importance of disclosing a prima facie case against the accused for their legal liability.
5. The court noted that the complaint lacked material showing the applicants' actual involvement in the company's affairs. It highlighted the requirement for the prosecution to establish the accused's responsibility before initiating legal proceedings.
6. Ultimately, the court found that the applicants could not be prosecuted without a prima facie showing of their legal liability. The judgment set aside the previous order and discharged the applicants in the cases under consideration, emphasizing the burden of proof on the prosecution in establishing the accused's knowledge and involvement in the alleged offenses.
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2003 (2) TMI 552
Issues Involved:
1. Validity of service of notice under Section 12(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.
2. Presumption of service of notice under Section 28 of the Bombay General Clauses Act, 1904.
3. Rebuttal of presumption of service by the tenant.
4. Compliance with Section 106 of the Transfer of Property Act, 1882.
5. Validity of service by affixation.
Detailed Analysis:
1. Validity of Service of Notice under Section 12(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947:
The petitioner challenged the eviction decree on the grounds that the notice of demand for arrears of rent was not properly served as required under Section 12(2) of the said Act. The petitioner argued that no notice was received, and thus the decree for eviction was invalid.
2. Presumption of Service of Notice under Section 28 of the Bombay General Clauses Act, 1904:
The court examined the presumption of service of notice when sent by registered post. It was noted that under Section 28 of the Bombay General Clauses Act, there is a presumption of service if the notice was sent to the correct address and returned with postal remarks such as "unclaimed." The court cited the Apex Court's ruling in M/s. Madan & Co. v. Wazir Javir Chand, which held that once a letter is posted correctly, the presumption of service arises, and it is attributed to the addressee's conduct if it is not received.
3. Rebuttal of Presumption of Service by the Tenant:
The petitioner argued that the presumption of service was rebutted as he was out of station from 1990 to 1992. The court, however, emphasized that mere absence from the premises does not rebut the presumption. The tenant must make arrangements to receive correspondence during their absence. The court referred to the Apex Court's ruling in Anil Kumar v. Nanak Chandra Verma, which stated that unchallenged testimony might rebut the presumption, but mere denial is insufficient.
4. Compliance with Section 106 of the Transfer of Property Act, 1882:
Section 106 of the Transfer of Property Act requires that notice must be sent by post or delivered personally, and if impracticable, affixed to a conspicuous part of the property. The court noted that service by affixation is permissible only when personal delivery or postal service is impracticable. The court held that the landlord's efforts to serve notice by affixation were valid, given the postal endorsement of "unclaimed."
5. Validity of Service by Affixation:
The court found that the landlord had complied with Section 106 by affixing the notice to the door of the premises when personal service was impracticable. The court held that the presumption of service was not rebutted by the petitioner, and the service by affixation was valid.
Conclusion:
The court dismissed the petition, upholding the concurrent findings of the lower courts that the notice was duly served. The presumption of service under Section 28 of the Bombay General Clauses Act was not rebutted by the petitioner. The service of notice by affixation was also found to be in compliance with Section 106 of the Transfer of Property Act. The petition was dismissed with no order as to costs.
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2003 (2) TMI 551
Issues Involved:
1. Non-compliance with Sections 42(2), 55, and 57 of the N.D.P.S. Act.
2. Trustworthiness of prosecution evidence regarding sealing and seizure of material and safe custody of samples.
3. Validity of statements recorded under Section 67 of the N.D.P.S. Act.
4. Reliability of the Search and Seizure panchnama.
5. Quality of investigation by the D.R.I. officers.
6. Conscious possession or knowledge of the accused regarding the psychotropic substance.
7. Consistency between the charge against the appellants and the findings.
Detailed Analysis:
1. Non-compliance with Sections 42(2), 55, and 57 of the N.D.P.S. Act:
- Section 42(2) Compliance: The court found that the information received on 8-5-1994 was duly recorded and forwarded to the superior officer, Mr. V.P.C. Rao. Despite minor discrepancies in the testimonies of the officers, the contemporaneous record (Exh. 72) supported the prosecution's claim of compliance with Section 42(2).
- Section 55 Compliance: The court held that Section 55, which mandates police custody of seized articles, was not applicable as the D.R.I. officers retained custody. The evidence showed that the samples were sealed and forwarded to the F.S.L. without tampering, satisfying the requirement of safe custody.
- Section 57 Compliance: Although there was partial compliance with Section 57, the court deemed it substantial as a seizure report was made within the stipulated time. The absence of a report on arrests did not prejudice the accused, and the requirement was considered directory, not mandatory.
2. Trustworthiness of Prosecution Evidence:
- Sealing and Seizure: The court inspected the sealed envelopes and found no possibility of tampering. The samples were properly sealed, and the F.S.L. report confirmed they were received intact. The evidence of safe custody from seizure to F.S.L. was found reliable.
3. Validity of Statements under Section 67:
- Voluntariness and Duress: The court rejected the defense's claim of duress and prolonged detention, noting the lack of supporting evidence. The statements were considered voluntary and not obtained under threat or coercion.
- Legal Obligation to Provide Correct Information: The court interpreted Section 67, along with Section 177 of the Indian Penal Code, to imply a duty to provide correct information. The statements were not vitiated by any alleged threat of legal action.
4. Reliability of the Search and Seizure Panchnama:
- Continuous Panchnama: The court found the panchnama to be a continuous document, with signatures obtained at relevant stages. The presence of panch witnesses during the sampling process was confirmed, and the panchnama was deemed reliable.
5. Quality of Investigation:
- Investigation Adequacy: The court acknowledged lapses in probing the source of the contraband and prosecuting all involved, but found the evidence against the accused sufficient. The investigation's quality did not prejudice the accused, and the collected evidence was deemed reliable.
6. Conscious Possession or Knowledge:
- Conscious Knowledge: The court found that the accused had conscious knowledge of transporting contraband. Their behavior and statements indicated awareness of the illegal nature of the cargo, and the contention of lack of knowledge was rejected.
7. Consistency between Charge and Findings:
- Conspiracy Charge: The court held that the absence of evidence connecting Haji Ismail of Dubai did not exonerate the accused. The evidence established their involvement in the conspiracy, and the charge was consistent with the findings.
Conclusion:
The appeals were dismissed, and the conviction and sentences imposed by the trial court were upheld. The court found no merit in the contentions raised by the appellants and confirmed the judgment and order of the Additional City Sessions Judge, Ahmedabad.
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2003 (2) TMI 550
Issues:
Challenge to order of remand in Writ Petition Nos. 18961 and 24667 of 1998 regarding grant of occupancy rights for a small piece of land in Belgaum City; Validity of remand order; Interpretation of Karnataka Land Reforms Act; Consideration of non-agricultural permission granted in 1963; Dispute over agricultural status of land; Examination of possession and cultivation claims; Assessment of Tribunal's decision and majority dissent; Applicability of Section 2(18) of Karnataka Land Reforms Act.
Analysis:
1. The appellants contested the order of remand by the Single Judge in Writ Petition Nos. 18961 and 24667 of 1998, challenging the grant of occupancy rights for a small piece of land in Belgaum City. The dispute revolved around whether the land qualified as agricultural, with the owners claiming non-agricultural conversion in 1963. The Tribunal, through a majority decision, granted occupancy rights despite dissent from the Chairman. The Single Judge set aside the order due to lack of proper reasoning by the majority, leading to the current appeals questioning the remand order.
2. The Court acknowledged the usual reluctance to interfere with remand orders but highlighted instances where unjustified remands necessitated intervention. The Government Pleader emphasized the misuse of remands based on technical flaws, impacting the efficacy of the Karnataka Land Reforms Act. The necessity of justifying remands only in essential cases was stressed to prevent undue delays and uphold public interest.
3. The appellant's counsel argued that non-agricultural permission granted in 1963 precluded the grant of occupancy rights under the Karnataka Land Reforms Act. Emphasizing the significance of the land being agricultural for occupancy rights, the counsel contended that the Tribunal's decision lacked merit. The failure to challenge the 1963 decision or provide valid reasons for the majority decision warranted setting aside the Tribunal's order with a correct speaking order.
4. The respondents' counsel disputed the authenticity of the non-agricultural conversion document, Annexure-C, alleging fabrication due to unavailability of a certified copy. They asserted the land's agricultural nature based on horticultural activities and possession, challenging the appellant's claims. The argument centered on the land's capability for agricultural use under Section 2(18) of the Karnataka Land Reforms Act, advocating for a comprehensive examination by the Tribunal.
5. The respondents contended that the land's agricultural status was supported by the applicant's role in managing mango trees, indicating agricultural activity. Disputing the appellant's characterization of the applicant as a mere watchman, the respondents sought to establish eligibility for occupancy rights based on agricultural operations. The necessity of a remand to thoroughly assess the agricultural nature of the land was emphasized.
6. The Court meticulously reviewed the arguments and evidence presented by all counsels, concluding that the 1963 non-agricultural permission was valid and unchallenged. Emphasizing the revenue authorities' role in conversion decisions, the Court dismissed the respondents' claims of agricultural activities pre-1963. The distinction between a licensee and an agricultural tenant was crucial in determining eligibility for occupancy rights, leading to the Court's decision against the remand.
7. In light of the above analysis, the Court modified the Single Judge's order by upholding the setting aside of the Tribunal's decision to grant occupancy rights while rejecting the remand. Consequently, the Form 7 application was dismissed, and the appeals were successful in this regard, leading to the disposal of the case.
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2003 (2) TMI 549
Issues Involved:
1. Applicability of the term "factory" under the E.S.I. Act.
2. Sufficiency of evidence to establish the petitioner as the principal employer.
3. Legal implications of the Sessions Judge's order regarding the surrender of the petitioner.
Detailed Analysis:
1. Applicability of the term "factory" under the E.S.I. Act:
The primary issue was whether "Ajanta Hotel" qualifies as a "factory" under Section 2(12) of the Employees' State Insurance (E.S.I.) Act. The definition specifies that a "factory" must have ten or more persons employed with the aid of power, or twenty or more without the aid of power, on any day of the preceding twelve months. The complainant admitted seeing only two or three workers, which does not meet the statutory requirement. The Sessions Judge erroneously relied on the Factories Act, 1948, and Section 85 thereof, which allows the State Government to declare certain premises as factories irrespective of the number of employees. However, no such declaration was produced, and the E.S.I. Act does not incorporate this provision. Therefore, "Ajanta Hotel" does not qualify as a "factory" under the E.S.I. Act, negating the applicability of the Act.
2. Sufficiency of evidence to establish the petitioner as the principal employer:
The prosecution failed to provide sufficient evidence to prove that the petitioner was the principal employer of "Ajanta Hotel." The Sessions Judge presumed the petitioner to be the proprietor because he did not respond to a notice from the Joint Director. However, the complainant admitted that only the petitioner's son was present on two inspection occasions, and both were present on another occasion. The accused claimed his son ran the hotel, and no documents were produced to prove otherwise. The definition of "principal employer" under Section 2(17) of the E.S.I. Act includes the owner, occupier, or any person responsible for supervision and control. The complainant's statement, "I went to the hotel of accused," was insufficient to establish the petitioner's capacity as the principal employer beyond a reasonable doubt.
3. Legal implications of the Sessions Judge's order regarding the surrender of the petitioner:
The Sessions Judge's order directed the petitioner to surrender his bail bond before the Trial Court to undergo the remaining sentence, which effectively suspended the sentence. This was contrary to the judgment in *Dilip v. State of Maharashtra*, where it was held that the lower appellate court has no power to suspend the sentence after confirming the conviction. The appellate court becomes functus officio (having no further authority) upon confirming the conviction and cannot grant bail or suspend the sentence. The correct procedure would be for the accused to seek suspension of the sentence and bail from the High Court.
Conclusion:
The revision petition was allowed, and the conviction and sentence were quashed. The petitioner was acquitted and ordered to be released immediately if not required in any other case. The fine paid by the petitioner was to be refunded. The Sessions Judge's procedural error regarding the surrender order was noted for future rectification.
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2003 (2) TMI 548
Issues Involved:
1. Validity of the notifications creating a monopoly in favor of Mysore Sales International Ltd. (MSIL).
2. Impact of the amended Excise Rules on existing licenses.
3. Legality of the commission charged by MSIL.
4. Enforcement of interim orders and compensation payable to MSIL.
5. Adjustment of equities and restitution.
Detailed Analysis:
1. Validity of Notifications Creating Monopoly:
The appellants challenged the High Court of Karnataka's judgment upholding two notifications dated 13.9.1989, which created a monopoly in favor of MSIL for wholesale liquor distribution. The High Court held that the licenses granted under the amended rules created a privilege under the Karnataka Excise Act and did not get the protection of Article 19(1)(g) of the Constitution. The Supreme Court noted that the amended rules aimed to prevent excise revenue leakage and were reasonable restrictions under Article 19(6). The Court found no manifest arbitrariness or disproportionality in the amended rules and upheld the High Court's decision.
2. Impact of Amended Excise Rules on Existing Licenses:
The amended Excise Rules required manufacturers to sell their products exclusively to MSIL, which would then sell to wholesalers. The rules were to come into force from 1.7.1990, and existing licenses were protected until the end of their current period. The Supreme Court observed that the appellants took advantage of the interim order in Khoday Distilleries' case, which stayed the implementation of the notifications, allowing them to bypass MSIL and sell directly to wholesalers.
3. Legality of Commission Charged by MSIL:
The appellants contended that MSIL was not competent to discharge its obligations and lacked the necessary infrastructure. However, the Court noted that MSIL had become a fully functional authority with multiple depots and substantial business operations. The Court also addressed the issue of commission, stating that MSIL was entitled to charge reasonable margins not exceeding 0.5% on exports and 5% on all sales within the State. The appellants were found to have charged and collected the commission from wholesalers, either directly or indirectly, without showing it in the bills.
4. Enforcement of Interim Orders and Compensation Payable to MSIL:
The Supreme Court addressed the enforcement of interim orders and compensation payable to MSIL. The Court held that the appellants, having benefited from the interim order, could not retain the undue advantages derived from it. The doctrine of unjust enrichment and restitution was applied, and the Court directed the appellants to pay the commission amount due to MSIL. The Court also clarified that the appellants had no liability to pay any commission to MSIL prior to 1.7.1990 and after 13.2.1997.
5. Adjustment of Equities and Restitution:
The Court issued several directions to ensure complete justice and proper adjustment of equities between the parties:
- The appellants were required to produce all books of accounts for the period 1.7.1990 to 13.2.1997 to determine the amount due to MSIL.
- Determination of the amount was confined to transactions where the appellants charged or indirectly realized the commission.
- In case of disputes regarding the quantum of commission, the State of Karnataka would appoint an authorized officer to determine the amount, whose decision would be final.
- MSIL was entitled to enforce its claims and recover dues in accordance with the law, with interest at 18% per annum until 12.2.1997 and 9% per annum thereafter.
Conclusion:
The Supreme Court disposed of the appeals, directing the appellants to pay the commission amount due to MSIL with interest and ensuring proper adjustment of equities. The Court also discharged the contempt petitions, concluding that no further orders were required.
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2003 (2) TMI 547
Issues Involved:
1. Legality of the Narcotics Control Bureau (NCB) as a department of the Government.
2. Validity of actions (search, seizure, arrest) taken by NCB officers.
3. Authority of NCB officers to file complaints under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
4. Interpretation of Section 4 of the NDPS Act and its implications on the powers of NCB.
Issue-wise Detailed Analysis:
1. Legality of the Narcotics Control Bureau (NCB) as a department of the Government:
The judgment clarifies that the NCB is not a statutory authority created by the NDPS Act itself but is constituted by the Central Government exercising its executive power under Section 4 of the Act. The NCB is considered a wing or branch of the Department of Revenue of the Government of India. The court agreed with the Karnataka High Court's view that the NCB is not an independent legal entity but functions under the supervision and control of the Central Government. The NCB is not a body corporate with perpetual succession and a common seal, and it does not have the capacity to sue or be sued independently.
2. Validity of actions (search, seizure, arrest) taken by NCB officers:
The court upheld the legality of the actions taken by NCB officers, including search, seizure, and arrest, under the NDPS Act. The Central Government had issued notifications empowering officers of the NCB above the rank of Inspector to exercise powers under Sections 41(2), 42(1), 67, and 53 of the Act. These actions were deemed authorized and warranted by the court, as the NCB is a wing of the Department of Revenue, and its officers are considered officers of the Central Government.
3. Authority of NCB officers to file complaints under the NDPS Act:
The court addressed the issue of whether NCB officers could file complaints under Section 36A(1)(d) of the NDPS Act. It held that the complaints lodged by empowered NCB officers are authorized and valid. The notifications issued by the Central Government empowering NCB officers to exercise powers under various sections of the Act were found to be legal and valid. The court emphasized that the NCB, as a part of the Department of Revenue, could perform functions authorized by the Central Government.
4. Interpretation of Section 4 of the NDPS Act and its implications on the powers of NCB:
Section 4 of the NDPS Act authorizes the Central Government to take measures to prevent and combat the abuse of narcotic drugs and psychotropic substances and illicit traffic. Sub-section (3) of Section 4 allows the Central Government to constitute an authority, such as the NCB, to exercise powers and functions specified in the Act. The court noted that the NCB was constituted by an executive order and not directly by the Act, making it a department of the Central Government. The court rejected the argument that the NCB's powers could not be enlarged by subordinate legislation, stating that the notifications empowering NCB officers were within the Central Government's authority under the Act.
Conclusion:
The Supreme Court set aside the judgment of the Delhi High Court, which had quashed the conviction and sentence of the respondent on the grounds that the NCB officers lacked the authority to conduct search, seizure, and arrest. The case was remitted to the High Court for disposal on merits. The court dismissed the appeal arising from the Karnataka High Court judgment, which had upheld the authority of NCB officers. The judgment affirmed the legality of the NCB's actions and its status as a department of the Central Government.
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2003 (2) TMI 546
Issues Involved:
1. Legality of the respondent-Corporation's action of debiting sums from the appellants' accounts towards differential customs duty.
2. Maintainability of the writ petitions under Article 226 of the Constitution of India.
3. Applicability of Article 265 of the Constitution of India.
4. Public law element in the dispute.
Issue-wise Detailed Analysis:
1. Legality of the respondent-Corporation's action of debiting sums from the appellants' accounts towards differential customs duty:
The appellants, partnership firms engaged in selling gold, challenged the respondent-Corporation's action of debiting sums from their accounts for differential customs duty on gold lifted after 4-1-1999. The customs duty was increased from Rs. 250 to Rs. 400 per 10 grams with effect from 5-1-1999 by Customs Notification No. 2 of 1999. The respondent-Corporation issued demand notices to enforce this increase for gold lifted on or after 5-1-1999. The appellants argued that the Corporation's action was arbitrary, lacked legal basis, and was in direct contravention of Article 265 of the Constitution of India. The Court, however, found no merit in the appellants' contentions, stating that the Corporation, as a trading organization, had the right to adjust sale prices based on market conditions, including increased customs duty and sales tax. The Court emphasized that the Corporation was acting within its commercial rights and responsibilities.
2. Maintainability of the writ petitions under Article 226 of the Constitution of India:
The respondent-Corporation contended that the writ petitions were not maintainable as the dispute was purely contractual and lacked a public law element. The Court agreed, stating that the dispute arose from commercial transactions and contractual obligations between the parties, which did not involve any statutory action or public law element. The Court cited several Supreme Court judgments, including *Food Corporation of India v. Jagannath Dutta* and *Bareilly Development Authority v. Ajay Pal Singh*, to support its position that contractual disputes should not be adjudicated under Article 226. The Court held that the proper remedy for the appellants was to approach competent Civil Courts.
3. Applicability of Article 265 of the Constitution of India:
The appellants argued that the respondent-Corporation's action violated Article 265, which mandates that no tax shall be levied or collected except by the authority of law. The Court found this argument misconceived, clarifying that the Corporation was not collecting customs duty but adjusting sale prices based on increased customs duty and other market factors. The Court noted that the Corporation, as an importer and seller of gold, had the right to set prices reflecting current market conditions, including any increases in customs duty. The Court emphasized that this was a standard commercial practice and did not constitute an unlawful collection of customs duty.
4. Public law element in the dispute:
The Court examined whether the dispute involved any public law element that would justify intervention under Article 226. It concluded that the dispute was purely commercial, arising from agreements between the parties for the sale and purchase of gold. The Court noted that the respondent-Corporation, although a government-owned entity, was acting in its commercial capacity and not performing any governmental function. The Court cited the Supreme Court's judgment in *Life Insurance Corporation of India v. Escorts Limited*, which distinguished between public law and private law domains, emphasizing that the Court would not ordinarily examine actions of the State in the private law field. The Court found no public law element in the dispute and held that the writ petitions were not maintainable.
Conclusion:
The Court dismissed the writ appeals, upholding the respondent-Corporation's right to adjust sale prices based on increased customs duty and other market factors. It found that the dispute was purely contractual, lacked any public law element, and should be adjudicated by competent Civil Courts. The Court also clarified that the Corporation's actions did not violate Article 265 of the Constitution of India.
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2003 (2) TMI 545
Issues Involved:
1. Whether Sections 28(1), 28(3-b), and 33-A of the Orissa Cooperative Societies Act, 1962, as amended by Act 28 of 1991, have come into operation.
2. The validity of the petitioner's promotion to the post of Accountant.
3. The legality of the order reverting the petitioner to the post of Assistant Accountant.
4. The appropriateness of taking action under the Contempt of Courts Act for alleged non-compliance with the court's direction.
Issue-Wise Detailed Analysis:
1. Whether Sections 28(1), 28(3-b), and 33-A of the Orissa Cooperative Societies Act, 1962, as amended by Act 28 of 1991, have come into operation:
The main question was whether the amended provisions of the Orissa Cooperative Societies Act, 1962, specifically Sections 28(1), 28(3-b), and 33-A, had been brought into force. The court observed that no notification, as required under Section 1(2) of Act 28 of 1991, had been issued to bring these amended sections into effect. Despite arguments suggesting that certain government orders implied the provisions were in force, the court concluded that without the requisite notification, the provisions had not been legally activated. Therefore, the court answered the question in the negative, stating that the amended provisions had not come into force.
2. The validity of the petitioner's promotion to the post of Accountant:
The petitioner, who did not possess a Degree in Commerce or Arts, was promoted to the post of Accountant by the Managing Committee of the Society. Under the unamended Section 33-A, the Registrar had the authority to classify societies, fix the number and designation of employees, and regulate their qualifications. The amended Section 33-A, which was not in force, would have allowed the Committee to determine these factors. Since the petitioner did not meet the qualifications prescribed by the unamended provisions, his promotion could not be approved by the Registrar. The court found that the promotion was invalid as it was based on a statutory provision that had not been brought into force.
3. The legality of the order reverting the petitioner to the post of Assistant Accountant:
The petitioner was reverted to the post of Assistant Accountant because he did not possess the necessary qualifications for the post of Accountant. The court upheld the legality of this reversion, noting that the Managing Committee did not have the authority to promote the petitioner under the unamended provisions. The communication informing the petitioner of his reversion was deemed fully legal and justified.
4. The appropriateness of taking action under the Contempt of Courts Act for alleged non-compliance with the court's direction:
The court recognized that a direction issued by it must be obeyed, and non-compliance could constitute "Civil contempt" under Section 2(b) of the Contempt of Courts Act. However, the court also noted that under Section 13 of the Act, it must be satisfied that the contempt substantially interferes with the due course of justice. In this case, while there was disobedience, the court found it inexpedient to proceed with contempt action. The court decided to drop the contempt proceedings, considering the overall circumstances and the fact that the original decision was based on a statutory provision that had not come into force.
Conclusion:
The court reviewed and reopened the writ petition, ultimately dismissing both the original petitions. The decision highlighted the necessity of proper notification for statutory provisions to come into force and clarified the limits of the Managing Committee's powers under the unamended Act. The court also emphasized the discretionary nature of contempt proceedings, opting not to impose punishment in this instance.
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2003 (2) TMI 544
Legal judgment by Supreme Court of India in 2003 (2) TMI 544 - SC. Justices Mrs. Ruma Pal and Mr. B.N. Srikrishna. Leave granted.
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2003 (2) TMI 543
Issues Involved:
1. Cancellation of bail granted to the respondent.
2. Admissibility of confessional statements recorded under Section 67 of the NDPS Act.
3. Application of Article 20(3) of the Constitution regarding self-incrimination.
Detailed Analysis:
1. Cancellation of Bail:
The application was filed by the Intelligence Officer, DRI, seeking cancellation of bail granted to the respondent by the Special Judge, Greater Bombay. The Special Judge had granted bail based on two unreported judgments, holding that the confessional statement recorded under Section 67 of the NDPS Act was hit by Article 20(3) of the Constitution. The respondent had previously applied for bail twice, which were rejected. The third application was based on the identical facts and legal principles as the two unreported judgments.
2. Admissibility of Confessional Statements:
The primary question referred to the Division Bench was whether a confessional statement recorded under Section 67 of the NDPS Act by an empowered officer other than a police officer is inadmissible under Article 20(3). The court noted that officers of the DRI or Customs Officers are not police officers, and statements recorded by them are not hit by Sections 24 and 25 of the Evidence Act. The court referenced several judgments, including R.N. Kaker v. Shabir Fidahusein, Raj Kumar Karwal v. Union of India, and K.I. Pavuny v. Assistant Collector, which upheld the admissibility of such statements, emphasizing that the officers do not possess the attributes of police officers.
3. Application of Article 20(3):
Article 20(3) of the Constitution provides protection against self-incrimination. The court examined whether the respondent was an accused at the time his statement was recorded. It was determined that the respondent was not an accused when his statement was recorded, as the complaint was filed later. The court referenced the judgment in Ramesh Chandra Mehta v. State of West Bengal, which held that a person becomes an accused only when a formal complaint is lodged. The court also considered the judgments in Kathi Kalu Oghad and Ramesh Chandra Mehta, concluding that the protection under Article 20(3) is available only if the person was an accused at the time of making the statement.
Conclusion:
The court held that the statement of the respondent recorded under Section 67 of the NDPS Act was not hit by Article 20(3) as he was not an accused at the time. The view taken by Justice Parkar was upheld, and the reference was answered in the negative, stating that such statements are admissible if the person was not an accused when the statement was made. The matter was directed to be placed before the learned Single Judge for further proceedings.
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