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Indian Laws - Case Laws
Showing 441 to 460 of 750 Records
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2023 (6) TMI 535
Seeking grant of bail - recovery of 700 grams amphetamine - contraband item - presumption regarding the culpable mental state of an accused and possession of illicit articles - HELD THAT:- This Court is of the considered opinion that prima facie it seems that the petitioner was not the owner of the package and had merely facilitated the booking of the package with the courier company on behalf of and at the request of the Nigerian national. This seems prima facie possible from the sequence of events in that when the NCB approached the petitioner on 16th November, 2022, the petitioner stated clearly that he had indeed booked the parcel for the Nigerian and sent the receiver details through Whatsapp to the courier person. This was further corroborated by the statement recorded by the courier person. Also, upon asking of the NCB, the petitioner continued to communicate with the Nigerian Ike and told him regarding the return of the package. Pursuant to his communication with the Nigerian, that the lady Abigail Momah was sent to collect the return of the package. This would possibly show that he was merely an intermediary who was used to courier the package which did not belong to him.
There is no evidence in the complaint that the package belonged to the petitioner, in that he was the one who was packing and dispatching the contraband. There are call records to show that messages have been received from the Nigerian and that the return parcel was to be collected by the person sent by the Nigerian. At this stage, the benefit of doubt would have to go to the petitioner as not being the owner and possessor of the said package of contraband.
In the considered opinion of this Court, there are reasonable grounds for believing that the petitioner is not guilty of the offence as alleged. Furthermore, considering he has no previous involvements and that his conduct and work has been certified by his employer and there is no adverse information regarding his past, it would be prudent to believe that he is not likely to commit any offence while on bail.
The petitioner is directed to be released on bail on furnishing a personal bond with one surety of the like amount subject to the satisfaction of the Ld. Trial Court, further subject to the conditions imposed - application allowed.
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2023 (6) TMI 534
Dishonour of Cheque - in view of the moratorium, the cheques were incapable of encashment - prior to presentation of cheques, not only the mortarium kicked in but the IRP had also sent the effective letter - petitioners can be liable for prosecution under Section 138 of the NI Act or not - HELD THAT:- In the present case, admittedly, CIRP proceedings were admitted against M/s Ajanta on 04.02.2020. In my opinion in view of the CIRP proceeding, the moratorium under Section 14 kicks in on the same day. The IRP vide email dated 07.02.2020 had, in accordance with the provisions of the IBC, directed all the financial institutions not to permit any debit transactions from the account of M/s Ajanta without written approval - once the CIRP proceedings have been admitted, the proceedings against the corporate debtor cannot continue.
Whether the petitioners can continue to be prosecuted under Section 138 of the NI Act in view of them being natural persons? - HELD THAT:- The observation of the Bombay High Court in ASMITA SARANG VERSUS YOGESH BADONI, SENTHIL KUMAR KARMEGAM & ANR. [2023 (2) TMI 1149 - BOMBAY HIGH COURT] agreed upon, wherein the High Court has held When the cheques were presented for encashment, the respondents were no longer in control and management of day to day affairs of the Corporate Debtor. It is not known as to whether there were sufficient funds in the bank account of Corporate Debtor to honour the cheques.
Since from the date of the admission of the CIRP proceedings, it was the IRP who was In-Charge of and responsible for the conducting the business of the company at the time when the cheques were presented for encashment, it is thus clear that the role of the natural persons had ceased - The instrument, namely, the cheque on the basis of which the complaint was filed could not have been encashed by the financial institutions in view of the mandate of Section 14 IBC read with Section 17 and 18 IBC - On the basis of the combined reading, it is the IRP who had the authority to operate the bank accounts and on the date of presentation, the petitioners cannot be stated to be in control and management of the affairs of M/s Ajanta.
In the judgment of P. MOHANRAJ & ORS. VERSUS M/S. SHAH BROTHERS ISPAT PVT. LTD. [2021 (3) TMI 94 - SUPREME COURT] the facts are distinguishable from that of the present case. In P. Mohanraj, 51 cheques were issued by the company in favour of the respondent towards amounts payable from 21.09.2015 to 11.11.2016. On 31.03.2017, the respondent issued a statutory demand notice under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881. The order admitting the application was passed on 06.06.2017 by the Adjudicating Authority directing commencement of the corporate insolvency resolution process with respect to the company and putting a moratorium in terms of Section 14 of the IBC. Hence in judgment of P. Mohanraj, the moratorium commenced from 06.06.2017. Prior to that not only the cheques had bounced but demand notices were also issued - In the present case, prior to presentation of cheques, not only the mortarium kicked in but the IRP had also sent the effective letter. As a result, the cheques became incapable of encashment.
The petition needs to be allowed.
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2023 (6) TMI 491
Computation of net worth - inclusion of Deferred Tax Liability - Direct or Indirect Method of Calculation - Rejection of Petitioner’s bid in respect of a tender - rejection on the ground that Net Worth of the Petitioner is not in compliance with the eligibility criteria (financial) - jurisdiction under Article 226 of the Constitution of India.
HELD THAT:- The law relating to interference by Courts in matters of tender is well settled. The authority issuing the tender is the best person to know the requirements of the tender and the clauses contained therein. Courts can interfere with the decisions taken by the authorities issuing the tender only if the decision is arbitrary or perverse or intended to favour someone or is biased against the person whose bid is sought to be rejected.
The law regarding interference by a Court with the actions of a tendering authority in exercise of its jurisdiction under Article 226 of the Constitution of India is well settled. The Apex Court in AFCONS INFRASTRUCTURE LTD. VERSUS NAGPUR METRO RAIL CORPORATION LTD. & ANR. [2016 (9) TMI 1292 - SUPREME COURT], has observed that constitutional courts must defer to the understanding and appreciation of the author of the tender documents unless there is malafide or perversity in the understanding or appreciation in application in the terms of the tender.
In THE SILPPI CONSTRUCTIONS CONTRACTORS VERSUS UNION OF INDIA AND ANR. ETC. ETC. [2019 (6) TMI 1449 - SUPREME COURT] the Supreme Court, while discussing the aspect of judicial intervention in matters of contract involving state instrumentalities had held that the authority which floats the contract or tender, and has authored the tender documents is the best judge regarding interpretation of the same. Any interference by the Court has to be for the purposes of preventing arbitrariness, irrationality, bias, mala fides or perversity.
The Petitioner has not been able to demonstrate as to how the decision arrived at by the tendering authority in rejecting the bid of the Petitioner as not being compliant of Clause 3.28 and Clause 6.1.2 of the bid document is perverse. The tender issuing authority cannot be asked to wait for an unlimited period awaiting an opinion which is sought to be procured by the tenderer. The tender has been evaluated by experts and this Court is not inclined to sit as an Appellate Authority over the Tender Evaluating Committee which has come to the conclusion that the bid of the Petitioner does not meet with the financial criteria.
A perusal of Respondent's letter dated 11.03.2023 shows that the net worth of the Petitioner as calculated by the Respondent by referring to audited financial statements of the Petitioner for the FY 2021-22 shows that the net worth of the company is Rs. 393.73 crores. The Respondent vide letter dated 10.04.2023 had sought clarification from the Respondent pertaining to the consideration of deferred tax liability as part of net worth. The Petitioner replied to the same clarifying its stance by relying upon a report of its statutory auditor, a certificate from an independent chartered accountancy firm and a registered valuer in support of its treatment of deferred tax liability in computing net worth. The Petitioner also stated that they have sought an opinion from the ICAI regarding the same - vide the Impugned letter, the Respondent had rejected the bid of the Petitioner. The purpose of calculating net worth should be primarily left with the tender issuing authority and the evaluating committee and the Court cannot dictate as to how the net worth should be calculated unless the decision is contrary to law.
In the opinion of this Court, it cannot be said that the action of the Respondent in not considering deferred tax liability as a part of net worth and rejecting the bid of the Petitioner for not meeting the qualification criteria is so arbitrary that it would warrant interference by this Court under Article 226 of the Constitution of India.
Petition dismissed.
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2023 (6) TMI 490
Enquiry on the alleged irregularities with regard to the functioning of the Society - Forbearance of authorities from proceeding with the enquiry initiated under Section 34A of the Act without affording due opportunity to the newly elected office bearers - bone of contention of the petitioners is that the impugned notice of enquiry dated 15.05.2023 ought to have been issued after recalling the Government Order in G.O.Ms.No.17, Commercial Tax and Registration (M-1) Department, dated 01.03.2023, in and by which, the Management Committee was superseded by the Government.
HELD THAT:- The petitioners / some of the newly elected Management Committee Members have made a representation on 04.02.2023 and filed WP.No.7179 of 2023 for a mandamus. The Government Order in G.O.Ms.No.17, Commercial Tax and Registration (M-1) Department was passed on 01.03.2023. This Court, on 10.03.2023, directed the respondents to pass orders on the representation of the petitioners. This order was passed at the admission stage itself. The petitioners have suppressed the issuance of the Government Order dated 01.03.2023, when the writ petition came up for hearing on 10.03.2023. Therefore, this Court, without any reference to the Government Order dated 01.03.2023, directed the first respondent herein to pass orders on the representation of the petitioners.
Since the Government Order in G.O.Ms.No.17, Commercial Tax and Registration (M-1) Department, dated 01.03.2023, has been passed after affording due opportunity to the then Office Bearers, who are also the incumbent President, Vice President, Secretary, Treasurer of the Society, there is no necessity for providing opportunity to each and every member of the Society in the proceedings initiated under Section 34A of the Act.
The impugned notice of enquiry dated 15.05.2023 is set aside, as it is not necessary, in view of the issuance of G.O.Ms.No.17, Commercial Tax and Registration (M-1) Department, dated 01.03.2023. Since this Government Order has already been challenged before this Court and the said writ petitions are also pending consideration, the petitioners can work out their remedy in the pending writ petitions, if so advised.
Petition allowed in part.
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2023 (6) TMI 365
Dishonour of Cheque - Rejection of application under Section 391 of the Code of Criminal Procedure (Cr.P.C.) - application seeking permission to produce on record documents and to cross-examine the complainant - HELD THAT:- In the case of Bipin Shantilal Panchal Vs. State of Gujarat and another [2001 (2) TMI 590 - SUPREME COURT], the Hon’ble Apex Court has held that, when any objection is raised to the admissibility of any material or the document or the evidence, the Court shall record such objections and to decide those at the stage of final judgment.
In the case of Rajendra Prasad Vs. Narcotic Cell Through its Officer-In-Charge, Delhi [1999 (7) TMI 707 - SUPREME COURT], the Hon’ble Apex Court has observed that in the Criminal Court the defence would be entitled to recall witness under Section 311 of the Cr.P.C. It is held that, the lacuna in prosecution is not to be equated with the fallout or an oversight committed by a public prosecutor during trial. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. It is thus held that the power to cross-examine any witness is plenary power and that can be exercised at any stage of the trial if Court finds the same to be necessary for a just decision of the case.
In the case of Maria Margarida Sequeria Fernandes and ors. Vs. Erasmo Jack de Sequeria (Dead) through L.Rs. [2012 (3) TMI 594 - SUPREME COURT], the Hon’ble Apex Court has held that, in the trial it is against the case when the suit was filed for possession and the matter went to the Hon’ble Apex Court. It is held in the said case that truth must be foundation of justice and the judges should not sit merely as umpire during trial, but play active role to find out truth. It was case arising out of civil suit.
This Court finds that, the application under Section 391 of the Cr.P.C. needs to be considered in the facts of the case. The principle underlying under Section 41 Rule 27 need not be considered while considering the application under Section 391 of the Cr.P.C. It also requires a consideration as to what is the nature of the evidence that is sought to be produced in the appeal. It is not a case of the petitioner in this case that he discovered some new fact or the document or material only after filing of the appeal. It is also not a case that in spite of due diligence he could not get the material during the course of trial. In this petition there are two prayers (i) to allow to exhibit the documents which are already produced on record and (ii) to allow him to cross-examine the complainant on the aspect of payment of amount.
While considering both these aspects this Court finds that, so far as exhibiting the documents is concerned even the respondent has accepted that the documents are admitted by both the parties and those can be read into evidence. So far as the second aspect that is the cross-examination of the complainant, it is the case of the complainant that by way of cross-examination now the petitioner wants to set up altogether a new defence. The defence in the trial court is that the cheques were stolen whereas, from the application now it appears that the petitioner wants to make out a defence that the amount of the cheque is already paid and on that aspect he wants to examine the respondent No. 2. This is also recorded by the learned Sessions Judge - The application therefore is not mere application for correcting the inadvertent mistake. So far as exhibiting of the document is concerned, the Court has already observed that the said documents would be considered. This Court thus finds that no case is made out to exercise the jurisdiction by allowing the petition.
There is no merit in the petition and the same deserves to be dismissed - Petition dismissed.
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2023 (6) TMI 364
Seeking grant of regular bail - recovery of contraband item - Heroin - narcotic substance - proper sampling procedure or not - HELD THAT:- The procedure which comes into effect after arrest and seizure is contained in Section 52 and 57 of the NDPS Act. The Hon’ble Supreme Court, in STATE OF PUNJAB VERSUS BALBIR SINGH [1994 (3) TMI 173 - SUPREME COURT] has held The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 are by themselves not mandatory. If there is noncompliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case.
It is pertinent to note that Section 52A of the NDPS Act was added by 1989 Amending Act with effect from 29.05.1989 - It is pertinent to note that the language of the aforesaid provision signifies its applicability with regard to disposal of seized drugs, i.e., at a stage after recovery and seizure.
The issue with regard to defect in sampling was for the first time dealt with by the Hon’ble Supreme Court, in Gaunter Edwin Kircher v. State of Goa, [1993 (3) TMI 370 - SUPREME COURT] was dealing with a case of conviction under Section 20(b)(ii) of the NDPS Act. The appellant in the said case was found in possession of 2 pieces of charas that weighed 7 and 5 gms respectively. Out of the 2 pieces, one piece of 5 gms was sent for chemical analysis, however, the piece weighing 7 gms was neither sent nor a sample thereof was taken and sent for chemical analysis. In this factual background, the Hon’ble Supreme Court held that since there was no chemical analysis for the other piece weighing 7 gms, either wholly or a part of it as a sample, the appellant cannot be convicted for the other cylindrical piece, weighing 7 gms. It was further noted that since the quantity for which test was conducted, was less than 5 gms, the same came within the meaning of small quantity for the purpose of Section 27 of the NDPS Act and in that case, conviction was modified from Section 20(b)(i) to Section 27 of the NDPS Act.
The Hon’ble Supreme Court, in Balbir Singh observed that the provision of Section 52 of the NDPS Act is directory in nature. It was further held that non-compliance of the said provision, in itself, cannot render the actions of the investigating officers as null and void. It would have to be demonstrated that in the facts and circumstances of a particular case, whether such non-compliance caused prejudice to the accused and resulted in failure of justice. It was further held that if there is no proper explanation for non-compliance, then the same will have an effect on the case of the prosecution and the Courts will have to appreciate the evidence and material placed on record in the case in order to determine the issue. Whether non-compliance of rules could be a ground for grant of bail, especially in cases involving a commercial quantity, where the twin conditions of Section 37 of the NDPS Act would required to be satisfied , will have to be examined considering the nature of violation of such standing procedure and consequences thereof.
This Court is of the opinion that the procedure adopted with respect to contraband in the present case is not defective in nature at this stage. The applicant will get ample opportunity to prove that the said recovery was defective and samples drawn were not the true representatives of the samples recovered, during the course of trial before learned Special Judge. It is pertinent to note that, the said standing orders cannot be exhaustive enough to cover all factual scenarios at the time of seizure of the contraband. Various factors like nature of contraband seized, the volume/quantity of the seizure, place of seizure, time of seizure, etc. will be relevant to determine any non- compliance thereof and effect of such noncompliance.
Hon’ble Supreme Court in Balbir Singh observed that the Investigating Officer is bound by the procedural instructions and has to follow the same, and in case of non-compliance thereof, and if no proper explanation is forthcoming, then the same would have adverse impact on the prosecution’s case. It was further noted in the said judgment that the Courts would appreciate the evidence and merits of the case keeping these aspects in view. In the opinion of this Court, whether the samples drawn would be a true representative sample of the contraband recovered, can be answered by the chemical analyst, who analyses the sample and gives his/her opinion. Learned Special Judge during the course of the trial will have the advantage of the testimony of the chemical analyst as well as the production of contraband seized in the Court. It is pertinent to note that the case property is still there for any further analysis if so required.
Therefore, it is premature at this stage to say that the samples drawn are not true representative samples of the contraband seized. In the present case, at the time of examination of case property, the learned Special Judge can satisfy himself with regard to the correctness of the procedure followed.
Application dismissed.
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2023 (6) TMI 291
Dishonour of Cheque - insufficient funds - discharge of legally enforceable debt or liability or not - acquittal of the accused - rebuttal of statutory presumption - HELD THAT:- In the instant case, issuance of cheque in discharge of legally enforceable debt is admitted by the respondent. The presentation of cheque for clearance through banker and its dishonor is also proved. Service of notice is also not denied. The only defence projected by the respondent is that the loan against which the cheque in question was given as ‘security’ to the appellant stands liquidated but he has not stated anything about demand to return the cheque and if refused what steps have been taken by him for recovery of the cheque. It has also come in the evidence that the vehicle against which the loan was got by the respondent in the year 1997 from the appellant was refinanced in the year 2001-2002. May be for this reason the respondent has not pressed for return of the cheque and agreed to keep the earlier cheque as security against the second loan also.
From a bare reading of Section 139 of the N.I. Act, it becomes clear that unless the contrary is proved, it is to be presumed that the holder of the cheque received the cheque for the discharge, in whole or in part, of any debt or other liability. True it is that the presumption contemplated under Section 139 of the Negotiable Instrument Act is rebuttable presumption, however, onus of proving by cogent evidence that cheque was not in discharge of any debt or other liability is on the accused-respondent.
The respondent has not taken a plea that he had not issued the cheque rather he had taken a stand it was just a security cheque and that he had repaid the loan and had not raised any subsequent loan. However, during the trial before the Trial Court he could not prove the facts raised by him in his defence as the same were required to be proved by him being onus on him due to presumptions under the Act. So far the issuance of cheque as security cheque is concerned, the same has been authoritatively decided by the Apex Court and also by the High Courts in the judgments referred hereinabove and the same is no defence available to the respondent as an accused - this court is of the opinion that the respondent had failed to raise a probably defence regarding existence of a legally enforceable debt or liability by leading cogent evidence.
The complainant by leading cogent evidence that the accused had issued a cheque against a liability to the complainant, which on presentation to the bank of the accused was dishonored for insufficient funds and despite issuance of legal notice; accused failed to make the payment, has proved the ingredients of the offence punishable U/S 138 of N.I. Act. More so coupled with the statutory presumption as discussed hereinabove, which accused failed to repudiate.
Thus, it is held that complainant has succeeded to prove against the accused the commission of offence punishable U/S 138 of N.I. Act. The Trial court has, thus, misdirected itself in appreciation of the evidence on record to record his acquittal. The impugned judgment is, thus, liable to be set aside being unsustainable - appeal allowed.
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2023 (6) TMI 55
Dishonour of Cheque - matter settled in National Lok Adalat - Validity of Award passed in Lok Adalat - the case of the petitioner is that when the matter had already been settled between the parties before the National Lok Adalat in terms of a Memorandum of Understanding/Settlement Agreement entered into between the parties, the learned Trial Court could not have proceeded with the trial by allowing the applications filed by the respondents - HELD THAT:- As far as challenge to an award passed by Lok Adalat is concerned, the Hon’ble Apex Court in Bhargavi Constructions v. Kothakapu Muthyam Reddy [2017 (9) TMI 1731 - SUPREME COURT], while following the decision rendered by its Three-judge Bench in SSTATE OF PUNJAB & ANR. VERSUS JALOUR SINGH & ORS. [2008 (1) TMI 960 - SUPREME COURT], held that an award of Lok Adalat can only be challenged by a party to it by filing a writ petition and that too, on very limited grounds.
As far as contentions of learned counsels with respect to applicability of Section 21 of Legal Services Authority Act to an award passed in respect of Section 138 of Negotiable Instruments Act is concerned, the Hon’ble Apex Court in K.N. GOVINDAN KUTTY MENON VERSUS C.D. SHAJI [2011 (11) TMI 783 - SUPREME COURT] has categorically held that an award of Lok Adalat in respect of Section 138 of Negotiable Instruments Act is to be treated as a decree under Section 21 of Legal Services Authority Act.
In the present case, it is noteworthy that vide order dated 29.08.2017 in CC No. 541812/2016, the learned Trial Court had referred the matter to National Lok Adalat which was to be held on 09.09.2017 for settlement proceedings - Prior to appearing before the National Lok Adalat on 09.09.2017, presumably to save their time, the parties had entered into a Memorandum of Understanding/Settlement Agreement a day prior i.e. on 08.09.2017. Thereafter, the matter was listed before the National Lok Adalat on 09.09.2017 and the settlement agreement dated 08.09.2017 was placed before the learned Presiding Judge, National Lok Adalat (Central), Delhi. It is not disputed that the learned Judge who was preceding over the National Lok Adalat had recorded the statements of both the parties on oath on 09.09.2017 and accordingly, in view of their own unequivocal statements on oath before the National Lok Adalat that they had entered into Memorandum of Understanding out of their own free will, the Memorandum of Settlement was exhibited.
The parties had not only entered into an agreement, but had also acted upon it since some payment, as per settlement arrived at before the National Lok Adalat, was also made. This will lead to only one conclusion that the learned Judge, National Lok Adalat had no reason to record incorrect statements of the parties who appeared before him, made their statements on oath, signed their statements and thereafter also acted upon it. Had the settlement been involuntary or on the basis of fraud, there was no occasion of acting upon such settlement by making payments according to the Memorandum of Understanding signed by both the parties. Had that been so, the concerned parties would have made submission before the learned Trial Court either before the date of hearing fixed before the learned Trial Court that their signature have been obtained by fraud, or on the date fixed before the learned Trial Court.
This Court is of the opinion that as per Section 21 of Legal Services Authority Act, the award of Lok Adalat which is deemed to be a decree of civil court and is binding on the parties and no appeal against the same is maintainable, as well as the judicial precedents which lay down that a settlement in case of Section 138 Negotiable Instruments Act and the award of Lok Adalat in connection with the same has to be treated as a decree capable of execution by Civil Court, the parties were bound by such decree. The contention of learned counsel for the respondents that the award of Lok Adalat is deemed to be a civil decree and cannot be enforced in respect of Negotiable Instruments Act is no more res integra and has been settled in the judgment of K.N. Govindan Kutty Menon by the Hon’ble Apex Court.
This Court is of the opinion that the learned Trial Court erred in allowing the applications filed by the respondents, after the matters had been settled between the parties before National Lok Adalat and the same had also been acted upon by the parties.
The impugned orders are set aside - Petition allowed.
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2023 (6) TMI 54
Auction bid - bid applications rejected on the ground of insufficient documents - quotation of highest price of Rs. 589/- as additional charge and the petitioner had quoted Rs. 221/- - no dues certificate from GST authority not submitted - HELD THAT:- On perusal of the endorsement of the committee, it is made clear that opposite party no. 4 had quoted additional charge at the rate of Rs. 589/-, but, so far as its income tax return for the assessment year 2021- 22 is concerned, a clarification was to be given by the competent authority in consultation with the concerned department/authority, and, as regards no dues certificate obtained from the CGST department, confirmation was to be made by the concerned authority. Similarly, it was observed that the petitioner had quoted additional charge of Rs. 221/-, but, however, the no dues certificate obtained from GST portal was needed to be confirmed from the concerned department/authority, if necessary, and, thereafter, the tender would be finalized. If such requirement has to be complied with, pursuant to the observation made on 05.08.2022, without getting such clearance from the respective departments and getting confirmation from the respective authority, as was observed, the authority could not have proceeded with the matter and finalize the tender in favour of opposite party no. 4 on the very same day, i.e., 05.08.2022. Thereby, the entire decision making process of the tendering authority is arbitrary, unreasonable and contrary to the provisions of law.
Under these circumstances, this Court, in exercise of the powers conferred under the judicial review, has got jurisdiction to interfere with the decision making process of the tendering authority.
In TATA CELLULAR VERSUS UNION OF INDIA [1994 (7) TMI 307 - SUPREME COURT], the apex Court, referring to the limitations relating to the scope of judicial review of administrative decisions and exercise of powers in awarding contracts, noted that there are inherent limitations in the exercise of power of judicial review in contractual matter. As such, it was observed that the duty to act fairly will vary in extent, depending upon the nature of cases, to which the said principle is sought to be applied. It was further held that the State has the right to refuse the lowest or any other tender, provided it tries to get the best person or the best quotation, and the power to choose is not exercised for any collateral purpose or in infringement of Article 14.
Since in the instant case opposite party no. 4 has not complied with the conditions, as stipulated in the auction notice, and the committee has decided to make a verification and confirmation from the concerned authorities, instead of doing so, the same could not have been settled in favour of opposite party no. 4.
In SACHIN KUMAR AGRAWAL VERSUS STATE OF ODISHA & ORS. [2023 (5) TMI 1233 - ORISSA HIGH COURT], this Court already held that once the bid submitted by the petitioner was not incorporated by the bank guarantee or the previous year’s income tax return, it was defective one and cannot be entertained as per the tender notice. It was also clarified in the tender notice that in absence of any documents, as enumerated in clauses-1 to 14, the application submitted by the bidder would not be taken into consideration. Therefore, fully knowing the conditions stipulated in the tender notice, the petitioner should not have filed the writ petition for consideration of the bid on the ground that he had quoted higher price than opposite party no.5. If the bid submitted by the petitioner was absolutely void ab initio, in view of non-compliance of the tender conditions stipulated in the tender notice, he is estopped from claiming the benefit, as has been claimed in the writ petition.
It is made clear that the decision making process in selecting opposite party no. 4, being arbitrary, unreasonable and contrary to the provision of law, cannot be sustained in the eye of law. Consequentially, the order dated 05.08.2022 so passed by the Tahasildar, Banspal settling the source in favour of opposite party no. 4 and confirmation thereof made by the Sub-Collector, Keonjhar by order dated 20.10.2022 passed in O.M.C.C. Appeal No. 33 of 2022 are liable to be quashed and are hereby quashed.
Petition allowed.
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2023 (5) TMI 1416
Authority of Commissioner of the Jamnagar Municipal Corporation to dismiss the Respondent from service based on the powers conferred by Resolution No. 51 dated 20.11.1998 - HELD THAT:- It is required to be noted that after departmental proceedings and on conclusion of the inquiry, the charges and the misconduct alleged against the Respondent have been proved, which has been even confirmed by the learned Single judge. However, thereafter, solely on the ground that the Commissioner, who passed the order of dismissal had no power/authority to impose the penalty of dismissal on the Respondent, who, at the relevant time, was serving as City Engineer, the learned Single Judge quashed the order of dismissal with all consequential benefits and the same has been confirmed by the Division Bench.
The Commissioner was authorized to take action against the erring officers with respect to the lapses and carelessness with various works in purchases only. Therefore, both the learned Single Judge as well as the Division bench of the High Court have rightly observed and held that the Resolution No. 51 did not authorize and/or confer any power upon the Commissioner to take action with respect to any other lapses other than the purchases. However, at the same time, it is required to be noted that the decision of the Commissioner was placed before the General Board and the General Board vide its Resolution No. 56 dated 15.12.1998 as amended by subsequent Resolution dated 30.12.1998, ratified the decision of the Commissioner dismissing the Respondent from service.
Applying the law laid down by this Court in the case of Pannalal Choudhury [2015 (7) TMI 1238 - SUPREME COURT] to the facts of the case on hand, any irregularity complained of by the Respondent on the authority exercised by the Commissioner to dismiss him stood ratified by the competent authority (General Board) thereby making an invalid act a lawful one in conformity with the procedure prescribed under the Act and the Rules.
Conclusion - The Commissioner's initial lack of authority was cured by the General Board's ratification, thereby reinstating the dismissal order.
The impugned judgment and order passed by the Division Bench of the High Court as well as the learned Single Judge quashing and setting aside the order of dismissal are unsustainable and deserve to be quashed and set aside and are accordingly quashed and set aside - Petition allowed.
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2023 (5) TMI 1415
Challenge to impugned order of cognizance on the grounds inter alia that the same is not tenable in law particularly with respect to offence punishable under Sections 272 and 273 read with 34 of the I.P.C. - exercise of the Courts’ inherent jurisdiction - seizure of Guthka from the petitioner - prohibited goods or not - HELD THAT:- Since the recovery and seizure is shown against the petitioner with respect to the GHUTKA (Tobacco product) which is one of the items under the schedule to the (COPTA) and it was allegedly being transported for sale, hence, as it is claimed that the provisions of sub-section-2 of Section 20 of the said Act are satisfied. Without expressing anything on the merits of such claim, the Court is of the considered view that whether any such offence has been committed by the petitioner or not is to be examined by the learned Court below during and in course of inquiry and trial, if the petitioner is not discharged. The decision as to whether a case under Section 20(2) of the COPTA is prima facie established is a matter to be thrashed out by referring to the material evidence collected and submitted along with chargesheet.
In Joshy K.V. [2012 (12) TMI 1251 - KERALA HIGH COURT], the challenge was whether, Tobacco by itself with some additives like lime or other flavouring substances can be prevented or seized in view of Regulation 2.3.4 of the Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations, 2011 being a food product. Under the Prevention of Food Adulteration Act, 1954 (PFA Act), Section 2(v) defined food as any article used as food or drink for human consumption and includes articles which ordinarily enter into or used in the composition or preparation of human food, any flavouring matter or condiments and any other article so notified by the Government of India. The definition of food as appearing in Section 2(v) of the PFA Act is quite expansive so as to include any such article used as a food or drink meant for human consumption and it is inclusive in nature.
According to Section 3(1)(j) of the FSS Act, not only food is defined but by virtue of a legal fiction, certain other items, which are not generally treated as a food have been included. In the humble view of the Court, it does not by itself mean that a product not Pramod Kumar Sahu@ Pramod Sahu Vrs. State of Odisha named in the inclusive definition and which is not a food becomes a food product unless it is shown that the same is consumed for taste or nourishment as held in P.K. Tejani [1973 (10) TMI 53 - SUPREME COURT]. Therefore, the Court is in agreement with the judgment rendered in Joshy K.V. which is also to the effect that Tobacco is a product which is to be avoided is clear and conspicuous from Regulation 2.3.4 of the Regulations itself which reinforces the view that it is not to be a food product.
The impugned order of cognizance is hereby quashed - the CRLMC stands allowed in part.
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2023 (5) TMI 1403
Rejection of Criminal Petition - dispute is of a civil nature or involves criminal elements - legitimacy of the FIR and allegations under the SC/ST Act and IPC - applicability of Section 482 of the Code of Criminal Procedure for quashing the FIR - HELD THAT:- In UMA SHANKAR GOPALIKA VERSUS STATE OF BIHAR AND ORS. [2004 (3) TMI 807 - SUPREME COURT], it was held that when the complaint fails to disclose any criminal offence, the proceeding is liable to be quashed under Section 482 of the Code.
What is evincible from the extant case-law is that this Court has been consistent in interfering in such matters where purely civil disputes, more often than not, relating to land and/or money are given the colour of criminality, only for the purposes of exerting extra-judicial pressure on the party concerned, which, we reiterate, is nothing but abuse of the process of the court. In the present case, there is a huge, and quite frankly, unexplained delay of over 60 years in initiating dispute with regard to the ownership of the land in question, and the criminal case has been lodged only after failure to obtain relief in the civil suits, coupled with denial of relief in the interim therein to the respondent no.2/her family members. It is evident that resort was now being had to criminal proceedings which, in the considered opinion of this Court, is with ulterior motives, for oblique reasons and is a clear case of vengeance.
This Court would indicate that the officers, who institute an FIR, based on any complaint, are duty- bound to be vigilant before invoking any provision of a very stringent statute, like the SC/ST Act, which imposes serious penal consequences on the concerned accused. The officer has to be satisfied that the provisions he seeks to invoke prima facie apply to the case at hand. It is clarified that remarks, in no manner, are to dilute the applicability of special/stringent statutes, but only to remind the police not to mechanically apply the law, dehors reference to the factual position.
The Court finds that the High Court fell in error in not invoking its wholesome power under Section 482 of the Code to quash the FIR. Accordingly, the Impugned Judgment, being untenable in law, is set aside - Appeal allowed.
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2023 (5) TMI 1396
Challenge to order dated 11.6.2019 passed by U.P. State Micro and Small Enterprises Facilitation Council - Section 18(3) of the Micro, Small and Medium Enterprises Development Act, 2006 - HELD THAT:- The legislature has enacted Micro, Small and Medium Enterprises Development Act,2006 for a special purpose, that is to facilitate the promotion, development and to enhance the competitiveness of Micro, Small and Medium Enterprises and matters connected therewith or incidental thereto and that is why, Section 24 of the Act of 2006 provides that Sections 15 to 23 of the Act of 2006 shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. The aforesaid Act of 2006 contains various provisions to deal with Micro, Small and Medium Enterprises and therefore, the Act of 2006 is a special law dealing with Micro, Small and Medium Enterprises and for that purpose, Section 24 of the Act of 2006 has given overriding effect to Sections 15 to 23 of the Act of 2006.
The provisions under 18 of the Act of 2006 have overriding effect in view of the provisions contained in Section 24 of the Act of 2006. The legislature in Section 18(2) of the Act of 2006 has categorically provided that the Council may either itself act as a Conciliator or may refer the matter for conciliation to any institution providing alternate dispute resolution services and the procedure of conciliation proceedings will be carried out as per Sections 65 to 81 of the Act of 1996. Thereafter, the legislature under Section 18(3) of the Act of 2006 has given absolute discretion to the Council that in the event of failure of the conciliation proceedings either Council itself can proceed to arbitrate the dispute between the parties or Council may refer the arbitration to an institution providing alternate dispute resolution services and it has been further provided that during such arbitration the provisions of the Act of 1996 will be applicable.
The Act of 2006 is a special law and in view of the provisions made in Section 24 of the said Act, the discretion given to Council under Section 18(3) of the Act of 2006 for selecting the forum of arbitration between the parties has overriding effect and therefore, at the stage of selection of forum for arbitration by the Council the prohibition contained in Section 80 of the Act of 1996 will not be applicable.
The legislature has enacted a special law in the form of Act of 2006 containing the special provisions in respect of Micro, Small and Medium Enterprises and further the legislature has given overriding effect to Sections 15 to 23 of the Act of 2006. Thus, the discretion given to Facilitation Council under Section 18(3) of the Act of 2006 in respect of selection of forum of arbitration between the parties is absolute and has overriding effect to any other law. Therefore, in the event of conciliation proceedings being carried out by the Council and on its failure the Council itself can proceed to arbitrate the dispute between the parties and the prohibition contained in Section 80 of the Act of 1996 will have no application in exercise of the said discretion by the Council.
The legislature has framed special law in the form of Act of 2006 to deal with various kinds of issues involved in the functioning of Micro, Small and Medium Enterprises and therefore, the legislature under the Act of 2006 has provided for constitution of the Facilitation Council comprising of the experts of the field of Micro, Small and Medium Enterprises and therefore, it is absolutely misconceived on the part of the petitioners to argue that the Facilitation Council is not well equipped to carry out the arbitration of the dispute between the petitioners and Respondent No.2. Thus, the said argument advanced by the learned counsel for the petitioners lacks merit and is rejected.
There are no illegality or infirmity in the orders dated 11.6.2019 and 24.7.2019 passed by the Facilitation Council in Claim Petition No.402 of 2019 - the writ petition filed by the petitioners is dismissed.
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2023 (5) TMI 1392
Inaction of the Respondents in not convening and finalizing the Departmental Promotion Committee (DPC) for selection on absorption to the post of Assistant Registrar, National Company Law Tribunal (NCLT) - permanent absorption under Rule 10 of the 2020 Rules - HELD THAT:- The grievance ventilated by the Petitioner before this Court is that while she was working on deputation with NCLT, she had opted for permanent absorption and was duly qualified and eligible. She was willing for absorption and her department also had no objection. Thus, there is no plausible reason or justification why the process be not taken to its logical end. It is not open to the Respondents to terminate and abandon the process mid-way as Petitioner has a right of consideration for absorption albeit there may not be a right to assert that she must be absorbed.
Parties are ad idem that Rule 10 of 2020 Rules read with Schedule I provides absorption on deputation as a mode of appointment to the post of Assistant Registrar, NCLT, with the approval of Central Government mandated under Rule 7 of the said Rules. Process of permanent absorption was initiated by NCLT and thus, the moot question that arises for consideration is whether the Petitioner can insist that the process must be taken to its logical end by convening a DPC and considering those who had applied/opted for permanent absorption.
It is a settled law that filling up of posts, mode of recruitment, category from which the recruitment is to be made, etc. are all matters exclusively within the domain of the Executive. In State of Andhra Pradesh and Another v. V. Sadanandam and Others, [1989 (5) TMI 325 - SUPREME COURT], the Supreme Court held that it is not for judicial bodies to sit in judgment over the wisdom of the Executive in choosing the mode of recruitment, as these are matters of policy decision falling exclusively within the purview of the Executive.
The Supreme Court has affirmed and re-affirmed that no person can have an indefeasible right to assert that he or she must be appointed, even where a person is placed on a select list and much less where the process has not even reached the stage of holding an examination or convening a DPC, as the case may be, for appointment or selection. No candidate has a right to insist that all or any vacancies, which are lying unfilled, must be filled and the employer must necessarily initiate the process of appointment or adopt a particular mode of appointment from among the modes provided in the respective recruitment rules - In view of the wealth of judicial precedents, it can hardly be argued by the Petitioner that there is a legal right to insist that the DPC must be convened and the post of Assistant Registrar must be filled by the mode of permanent absorption as against the mode of deputation sought to be adopted by NCLT.
Now all that is need to be tested is if the impugned action is arbitrary. It is stated in the short affidavit filed on behalf of Respondent No.2/NCLT that a decision was taken to fill up the Senior Level positions in the office of NCLT, New Delhi and its Regional Benches on deputation in order to attract new and fresh candidates, as a part of the initiative of the President, NCLT to improve the working of all Benches more efficiently in terms of administration. Thus, a conscious decision was taken to adopt the mode of deputation instead of absorption. Rules 2020 governing appointment to the post of Assistant Registrar, provide for deputation as a mode of appointment and the decision is within the framework of the Rules. Following the binding dictum of the Supreme Court, it is not for this Court to dictate the mode and manner of appointment and/or issue a mandamus to the Respondents to necessarily fill up the post of Assistant Registrar on permanent absorption basis.
The matter can be examined from another angle. The law on deputation and absorption is fairly well settled. A deputationist has no right to either continue on deputation or to claim permanent absorption in the borrowing department. It was held by the Supreme Court in Kunal Nanda v. Union of India and Another, [2000 (4) TMI 828 - SUPREME COURT], that the basic principle underlying deputation itself is that the person concerned can always and at any time be repatriated to his parent department to serve in his substantive position and there is no right to claim continuance on deputation or seek absorption.
In the present case, Petitioner was appointed on deputation as Assistant Registrar, NCLT by an order dated 05.03.2018 for a period of one year, which was extended up to 01.04.2022 after which she has been relieved and has joined her parent department. Merely because the process of permanent absorption was initiated would not give a vested right to the Petitioner to seek a mandamus to the Respondents to convene a DPC in the wake of a conscious decision taken by the Respondents to terminate the process of permanent absorption and resort to deputation as a mode of appointment to the post of Assistant Registrar, which is clearly a mode of appointment under Rule 10 of 2020 Rules.
The Court is of the view that Petitioner cannot seek a writ of mandamus to the Respondents to convene a DPC for consideration of her case on permanent absorption in NCLT and the writ petition deserves to be dismissed - petition dismissed.
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2023 (5) TMI 1390
Challenge to conviction and sentence awarded - recovery of Methamphetamine - possession of commercial quantity of the contraband - sampling procedures under the NDPS Act - HELD HAT:- This Court is of the considered opinion that the Standing Orders have to serve a certain purpose having been issued by the Narcotics Control Bureau, Government of India and cannot be rendered optional for compliance to the investigating agencies. The procedures prescribed in the said orders are based upon a certain logic which ought to be respected, or else it would be a worthless piece of paper - in this Court's view, the Standing Orders ought to be respected by the investigating agencies and non-compliance of those Standing Orders may naturally invoke a reasonable doubt relating to the process of sampling which is the most critical procedure to be carried out in order to ascertain the nature of the substance and its quantity. In fact, the Field Officers Handbook issued by the Narcotics Control Bureau for Drug Law Enforcement also reiterates these procedures prescribed under the Standing Orders.
As a side-wind, it is worth mentioning that post the decision in Mohanlal [2016 (5) TMI 500 - SUPREME COURT], the discussion has also veered towards whether the sampling has to be done mandatorily before the Magistrate in compliance of Section 52A NDPS Act. Recently, a Coordinate Bench of this Court in Kashif v. Narcotics Control Bureau, [2023 (5) TMI 1383 - DELHI HIGH COURT] while granting relief to the accused has taken the view that the compliance of Section 52A is mandatory and cannot be delayed or ignored. Moreover, there is a recent Standing Order issued dated 23rd December 2022 by the Ministry of Finance in exercise of powers conferred by Section 76 r/w Section 52 A of NDPS Act wherein procedure for seizure and storage of seized material and sampling and disposal has been provided in detail and which directs sampling to be done in front of the magistrate. Therefore, as per this view, the sampling ought to be done in compliance of Section 52A and not at the time of seizure.
In this case, besides the fact that the appellant may have a case to argue on the issue of defective sampling at the time of seizure, the appellant has also undergone a substantial period of sentence and the appeal is likely to take some time for hearing. In view of the directions of the Hon’ble Supreme Court in SONADHAR VERSUS THE STATE OF CHHATTISGARH [2021 (10) TMI 1446 - SUPREME COURT], as well as SAUDAN SINGH VERSUS THE STATE OF UTTAR PRADESH [2021 (10) TMI 1445 - SC ORDER] (where the Hon’ble Supreme Court has stated that in cases other than life sentence cases the broad parameter of 50 per cent of the actual sentence undergone can be the basis for grant of bail), this Court deems it fit to suspend the sentence of the appellant. It is therefore directed that the sentence of the appellant be suspended pending the hearing of the appeal, on furnishing a personal bond in the sum of ₹1,00,000/- with one surety bond of the like amount, subject to the satisfaction of the learned Trial Court/ CMM/ Duty Magistrate, further subject to the fulfilment of conditions imposed.
Bail application allowed.
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2023 (5) TMI 1389
Conviction under the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act) - seizure of poppy husk from a tempo following a patrolling operation - sampling procedure conducted by PW-7 was not in accordance with the provisions of the NDPS Act - HELD THAT:- The act of PW-7 of drawing samples from all the packets at the time seizure is not in conformity with the law laid down by this Court in the case of UNION OF INDIA VERSUS MOHANLAL [2016 (5) TMI 500 - SUPREME COURT]. This creates a serious doubt about the prosecution's case that substance recovered was a contraband.
Hence, the case of the prosecution is not free from suspicion and the same has not been established beyond a reasonable doubt - the impugned judgments insofar as the present appellant is concerned is set aside - the conviction and sentence set aside - appeal allowed.
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2023 (5) TMI 1387
Scope and extent of power of this Court Under Article 142 of the Constitution of India - Whether the period prescribed in Sub-section (2) of Section 13-B of the Hindu Marriage Act, 1955 can be waived or reduced by this Court in exercise of its jurisdiction Under Article 142 of the Constitution? - Whether the Supreme Court can grant divorce on the ground of irretrievable breakdown of marriage despite opposition from one spouse.
Scope and extent of power of this Court Under Article 142 of the Constitution of India - HELD THAT:- This question as to the power and jurisdiction of this Court Under Article 142(1) of the Constitution of India is answered holding that this Court can depart from the procedure as well as the substantive laws, as long as the decision is exercised based on considerations of fundamental general and specific public policy. While deciding whether to exercise discretion, this Court must consider the substantive provisions as enacted and not ignore the same, albeit this Court acts as a problem solver by balancing out equities between the conflicting claims. This power is to be exercised in a 'cause or matter'.
Whether the Supreme Court can waive or reduce the mandatory period under Section 13-B of the Hindu Marriage Act for divorce by mutual consent? - under what circumstances should this Court exercise jurisdiction Under Article 142 of the Constitution of India? - HELD THAT:- This Court, in view of settlement between the parties, has the discretion to dissolve the marriage by passing a decree of divorce by mutual consent, without being bound by the procedural requirement to move the second motion. This power should be exercised with care and caution, keeping in mind the factors stated in Amardeep Singh [2017 (9) TMI 2031 - SUPREME COURT] and AMIT KUMAR VERSUS SUMAN BENIWAL [2021 (12) TMI 1507 - SUPREME COURT]. This Court can also, in exercise of power Under Article 142(1) of the Constitution of India, quash and set aside other proceedings and orders, including criminal proceedings.
Whether this Court can grant divorce in exercise of power Under Article 142(1) of the Constitution of India when there is complete and irretrievable breakdown of marriage in spite of the other spouses opposing the prayer? - HELD THAT:- This question is also answered in the affirmative, inter alia, holding that this Court, in exercise of power Under Article 142(1) of the Constitution of India, has the discretion to dissolve the marriage on the ground of its irretrievable breakdown. This discretionary power is to be exercised to do 'complete justice' to the parties, wherein this Court is satisfied that the facts established show that the marriage has completely failed and there is no possibility that the parties will cohabit together, and continuation of the formal legal relationship is unjustified. The Court, as a court of equity, is required to also balance the circumstances and the background in which the party opposing the dissolution is placed.
Transfer petitions disposed off.
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2023 (5) TMI 1385
Seeking grant of bail - seizure of contraband - requirement of compliance with Standing Order 1/88 in the context of drawing of samples - delay in making an application to the Magistrate for drawing the sample - whether the Standing Order 1/88 and Section 52A NDPS stands violated in the present case? If yes, what is a reasonable time for filing an application before the Magistrate under section 52A? - HELD THAT:- In the present case, the submission for the collection of a sample and the certification under section 52A of the NDPS Act was made on 22.04.2022, i.e., 51 days after the last seizure dated 02.03.2022 - The duration of 51 days cannot be considered a reasonable time period for submitting an application under section 52A NDPS for drawing of sample.
Though the court in Arvind Yadav [2021 (7) TMI 1422 - DELHI HIGH COURT] held that the trial is not vitiated due to absence of Magistrate thereby violating section 52A, the same did not take into consideration whether the seized contraband is immune from tampering and mischief lying in the custody and possession of the Department for a long period of time.
Relying on the aforesaid precedent, in the instant case, there is a reasonable apprehension of tampering with the seized contraband that was lying in the custody and control of the Department for 51 days. Additionally, the Respondent has failed to provide any justification for the delay of 51 days in filing the application under section 52A of the NDPS Act.
Thus, there is violation of section 52A in the present case. The sample collection procedure stands vitiated due to unexplained delay of making an application to the Magistrate in a reasonable time period. The benefit of the said violation must accrue to the Applicant - Although the applicant did not raise objections regarding delay in filing application under section 52A when the application was filed, but the same being a legal objection can be raised at any point during the subsequent bail application.
The applicant is granted bail subject to fulfilment of conditions imposed - bail application allowed.
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2023 (5) TMI 1383
Delay in filing application under Section 52A of the NDPS Act - what is a reasonable time to make an application to the Magistrate under section 52A NDPS and the effect of delay, if any? - HELD THAT:- Section 52A NDPS does not give a time frame within which application has to be made for collection of sample to the magistrate. The time frame is provided in Standing Order 1/88 and that too, only in the context of sending the sample to FSL.
In Mohanlal [2016 (5) TMI 500 - SUPREME COURT], the Hon’ble Supreme Court in para 19 has opined that “The scheme of the Act in general and Section 52A in particular, does not brook any delay in the matter of making of an application or the drawing of samples and certification. While we see no room for prescribing or reading a time-frame into the provision, we are of the view that an application for sampling and certification ought to be made without undue delay” - What is reasonable has been left open by the Apex Court in the said judgment.
It cannot be the intent of the legislature that since no time limit is mentioned in the statute, the respondent authorities can take their own sweet time in moving an application under section 52A NDPS. Rather, the said application should be moved at the earliest to prevent the apprehension of tampering with the samples as the seizure, quantity and quality of contraband is the most crucial evidence in NDPS cases and drawing of sample and certification in the presence of magistrate is of utmost importance.
Thus, a harmonious and combined reading of Standing Order 1/88 and Section 52A NDPS construes that a reasonable time must be read into section 52A(2) for making an application for drawing the sample and certification before the Magistrate.
In the present case, the sample was kept in the custody of the prosecuting agency for more than one and a half month, thus, raising doubt with regards to tampering of the same.
The application for sample collection under section 52A is not a technical application wherein elaborate reasons, principles of law or detailed facts are required. It is more of a clerical application and should mandatorily be made within a reasonable time under section 52A NDPS. The application has to be moved at the earliest and in case, the same has not been moved, the reasons for delay must be explained by the authorities.
The applicant has been in custody since 07.03.2022 and more than a year has passed since then. No further custodial interrogation of the Applicant is required. No recovery was made from the Applicant or at his instance. Therefore, the embargo of Section 37 NDPS is not applicable on the Applicant - The triple test i.e., a) flight risk; b) tampering with evidence and c) influencing the witnesses can be taken care of by imposing stringent bail conditions.
The application is allowed and the applicant is granted bail subject to fulfilment of terms and conditions - Bail application allowed.
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2023 (5) TMI 1381
Seeking grant of statutory bail - illegal means of extortion and by giving out loans at exorbitant rate of interest - offence punishable under Section 120-B, 201,384, 465, 467 & 471 IPC and Section 17, 18, 20 & 21 of UA (P) Act, 1967 and u/s 25(1A) of the Arms Act, 1959 - HELD THAT:- It is pertinent to mention herein that it was peak of Covid period and the Courts were functioning in a very restricted mode and the learned Metropolitan Magistrates were deputed to the Tihar Jail itself to extend the custody remands as it was not possible to bring all the under-trials lodged in the Tihar Jail to Courts because of Covid restrictions and it was also not possible to produce each and every accused before the concerned Court through video conferencing, because the Courts itself were functioning in a very restricted mode and at that time even appropriate video conferencing facilities were not available either at the Court rooms or at the residential offices of the judicial officers.
Unless and until a bail order is passed the under-trial has to remain in judicial custody and as it was not possible for the accused to be produced before the Special Court because of the Covid restrictions, her remand was rightly extended by the Duty Metropolitan Magistrate as per the directions issued from time to time by the higher judicial authorities keeping in view the prevailing circumstances.
Thus, filing of a complete charge-sheet within the stipulated period is sufficient compliance and no default bail can be granted in a case where cognizance was taken later on and the custody of the accused/appellant cannot be termed as illegal only on the ground that sufficient amount of time was spent by the court clerk to raise objections regarding page numbering and illegible documents etc., and the respondent/NIA had taken some time to respond to the said objections and after removal of objections, the cognizance was rightly taken on 03.07.2020.
There is no illegality or infirmity in the orders passed from time to time regarding detention of the present appellant - Appeal dismissed.
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