LEGAL NEWS & JUDGEMENTS 03.04.2009

Dutt row: Nobody can influence the judiciary says CJI
http://www.hindustantimes.com/StoryPage/StoryPage.aspx?sectionName=HomePage&id=72de002f-34a8-4672-a4b3-c8a51793e0da&Headline=Nobody+can+influence+judiciary%3a+CJI+on+Dutt+row
Press Trust Of India
New Delhi, April 02, 2009
Chief Justice of India K G Balkrishnan on Thursday pooh-poohed the idea of the government or anybody influencing the Supreme Court in its verdict on actor Sanjay Dutt’s appeal challenging his conviction by a TADA court in 1993 Mumbai serial blasts.
“We have not even constituted the bench to hear the cases. I have nothing to say. The case is not yet even posted before a bench. Because there are many accused in the case. The case is not even posted for hearing. So where is the question of anybody influencing,” he shot back.
The Chief Justice made the remarks in response to queries from mediapersons on Dutt’s allegation that a union minister had threatened the actor of an adverse verdict from the apex court if he decides to contest the Lucknow Lok Sabha seat on a Samajwadi Party ticket.
Dutt is facing a six-year sentence in the case and has filed an appeal in the apex court. On the impeachment proceedings against Justice Soumitra Sen of the Calcutta High Court, he said, Parliament had a “serious responsibility” to decide the issue.
“Impeachment proceedings are to be held by Parliament. A resolution has to be moved in Parliament and before that the committee constituted by the Vice President and Chairman of the Rajya Sabha will give its opinion. How can I say? The House has to take a decision. It is a serious responsibility of the House,” the Chief Justice said.

SC seeks UP govt’s response for slapping NSA against Varun
http://www.hindu.com/thehindu/holnus/000200904021921.htm
New Delhi (PTI): The Supreme Court on Thursday sought a response from Uttar Pradesh government and the District Magistrate of Pilibhit on the allegation by BJP leader Varun Gandhi that the National Security Act was slapped against him to sabotage his electoral debut.
A Bench headed by Chief Justice K G Balakrishnan issued notices to the state government and the DM, Pilbhit, on Mr. Varun’s petition challenging the invoking of the NSA in connection with his alleged hate speeches.
After a brief hearing of 15 minutes, the Bench, which only inquired about the date for filing nomination papers for the Pilibhit Lok Sabha seat, said it will hear the petition filed by BJP leader on April 13.
Senior advocate Mukul Rohatgi, appearing for 29-year-old Mr. Varun, alleged the District Magistrate slapped the NSA without authority as the state government had not passed any order as required under the law for the local administration to take such a measure.
He said the District Magistrate had acted independently without any authority.
Mr. Rohtagi said a large number of documents which formed the ground for detention under the NSA was not supplied to Mr. Varun.

Relief to rape convict for cracking civil service challenged
http://www.sindhtoday.net/south-asia/82309.htm
Apr 2nd, 2009 By Sindh Today
New Delhi, April 2 (IANS) The Supreme Court Thursday said it didn’t agree with the Delhi High Court’s order giving relief to a rape convict who cracked the civil service exam while serving his sentence.
The apex court issued notice to the Delhi government on a lawsuit by the National Commission for Women (NCW) questioning the rationale of the high court verdict releasing the rape convict, Ashok Rai.
A bench of Chief Justice K.G. Balakrishnan and Justice P. Sathasivam also issued notice to Rai, who was awarded life term in 2003 for raping his student. He was released by the high court Feb 10 after he cleared the civil service exam in jail with the highest grade.
The apex court bench said: “We do not agree to the reasoning of the high court.”
“Such observation is unnecessary. It is not (a) relevant consideration,” said the bench, discarding the high court’s rationale for giving relief to Rai. “It will send a wrong message.”
Impressed by Rai’s feat, a high court bench of Justice Pradeep Nandrajog and Justice Aruna Suresh said Rai had reformed himself during his five-and-half year jail term.
The high court reduced his sentence of life term to the imprisonment he had already undergone.
The NCW lawsuit pointed out that the high court has reduced Rai’s sentence to less than the minimum punishment prescribed for a rape convict.
The high court, however, had not absolved Rai of the conviction. It said despite his release, Rai would continue to be a convict for the crime of rape.
The high court bench directed that Rai was guilty under section 306 (abetment to suicide), of obtaining the consent of the victim for sex on the “false promise of marriage” (which constitutes rape), but didn’t push her to end her life.

Telecom tribunal stays BSNL notice to Vodafone Essar
http://economictimes.indiatimes.com/News-by-Industry/BSNL-notice-to-Vodafone-stayed/articleshow/4351321.cms
2 Apr 2009, 1958 hrs IST, PTI
NEW DELHI: Giving some relief to mobile phone service provider, Vodafone Essar, the telecom tribunal TDSAT on Thursday stayed a notice issued by the government-controlled BSNL to disconnect the latter’s from its network. Admitting a petition from Vodafone Essar Gujarat Ltd, the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) stayed the disconnection notice issued by BSNL on March 5, 2009 following a dispute over an amount of Rs 3.54 crore and for allegedly wrongly routing of international calls. “…operation of the impugned notice dated 05.03.2009 is stayed,” said the TDSAT bench headed by Justice Arun Kumar. Issuing notice to BSNL, the tribunal also directed it to file its reply within three weeks. The tribunal also directed Vodafone to file a rejoinder over that within two weeks thereafter if the company wanted. Vodafone Essar approached the sectoral tribunal after BSNL served it a notice to disconnect its Points of Interconnections (POI) from its network over dispute on payments of ADC charges and other for allegedly routing of international calls by using local numbers. On finding it, BSNL had slapped highest slab charges, which was opposed by Vodafone before the tribunal as the company was not aware of it. The tribunal has directed to list the matter on May 11 for further directions.

Protests as CBI clears Tytler of rioting charge
http://www.thestatesman.net/page.news.php?clid=1&theme=&usrsess=1&id=249179
Pritam Pal Singh NEW DELHI, April 2: After a 25-year trial, the CBI today absolved Congress’ Lok Sabha nominee Mr Jagdish Tytler of involvement in the 1984 anti-Sikh riots in Delhi, prompting protests by Sikhs besides raising questions about the timing of the investigating agency’s clean chit. Mr Tytler said the CBI’s clean chit to him once again proved “his innocence” in the 1984 anti-Sikh riots case. As the CBI decision was made public, hundreds of Sikhs who had gathered outside the court premises protested. They raised slogans against the Congress, the CBI and Mr Tytler as well as other senior Congress leaders like Mr Sajjan Kumar and Mr Kamal Nath for their alleged involvement in the riots. “It’s a shameful act on the part of CBI and with this our faith in the investigation agency has been shattered. The CBI is working hand in glove with the accused,” said an aggrieved victim outside the court. In its final report, submitted before Additional Chief Metropolitan Magistrate, Mr Rakesh Pandit, in Karkardooma court, CBI counsel pleaded that the case against Mr Tytler, the Congress’ candidate from the Delhi North East constituency, be cancelled. According to a CBI statement, affidavits in the case by two people, Mr Surender Singh and Mr Jasbir Singh, were inconsistent and contradictory. In January 2002, Mr Surender Singh filed an affidavit before the Nanavati Commission, probing the riots and said Mr Tytler incited a mob to burn a gurdwara and kill Sikhs on 1 November 1984. In August 2002, he filed another affidavit pleading ignorance about the first document, the CBI said. In 2006, he filed a third affidavit backing the August 2002 claim and was re-examined in 2008 after which he left for the USA. California-based Mr Jasbir Singh, who had earlier been declared untraceable by the CBI, had stated in his affidavit on 3 November 1984 that he had overheard Mr Tytler commenting on the killing of Sikhs in his constituency, Sadar Bazar. The riot victims’ lawyer said: “Ever since the case went to the CBI, the agency has been eager to give Tytler a clean chit. We will not give up our fight yet. It is sad to see that even before the seal of the final report was opened, Tytler knew that he had got a clean chit”.

Akshay’s unbutton act pulls an obscene cheer
http://www.thestatesman.net/page.news.php?clid=2&theme=&usrsess=1&id=249186
Press Trust of IndiaMUMBAI, April 2: Bollywood actor Akshay Kumar may land himself in the soup as city police have started inquiry into his alleged obscene “unbutton” act during the Lakme Fashion Week here.We are conducting an inquiry into Akshay Kumar’s alleged obscene acts during Lakme Fashion Week held here recently after we received a complaint from a person called Anil Nair, a police officer told PTI.The complainant raised objections on Akshay’s unbutton act in public, the officer said.On Monday, mid-way between his ramp walk, Akshay Kumar walked towards his wife Twinkle Khanna, who was seated in the front row and allegedly asked her to unbutton his jeans during the fashion show.Asked if a police case is likely to be registered against Akshay and the organisers, the officer said, if the inquiry finds them guilty of obscene act, they will register a case against the actor and the organisers.

No respite from ragging: ASG to SC
http://www.tribuneindia.com/2009/20090403/main3.htm
R SedhuramanLegal Correspondent
New Delhi, April 2Additional Solicitor General Gopal Subramanium today informed the Supreme Court that incidents of campus ragging were continuing unabated despite its series of directives to the authorities to curb the menace.
Even after the court had, earlier this week, heard the cases relating to the ragging incidents in Himachal Pradesh and Andhra Pradesh and directed the immediate suspension of the officials concerned, such happenings had been reported from the Birla Institute of Technology, Jharkhand, and other places, the ASG said.
The ASG, who is the Amicus Curiae on the issue, was arguing before a Bench headed by Justice Arijit Pasayat the case relating to the suicide attempt by a girl student of the Government Agriculture Engineering College, Bapatla, Andhra Pradesh, due to ragging. The ASG suggested that the court should frame separate guidelines for cases involving death due to ragging, covering the nature of abetment and punishment.
Senior counsel PP Rao, appearing for Andhra Pradesh, said the state government would file a status report on the magisterial inquiry and the in-house committee findings. He agreed that ragging should be dealt with sternly.
The ASG said Jawaharlal Nehru University professors had come out with some proposals on the issue and this could be tagged with the AP, HP cases. The Bench has listed the next hearing for April 13, while the Aman Satya Kachroo ragging-death case would come up on April 20.

13-year wait over for Dabwali fire victims
http://www.tribuneindia.com/2009/20090403/main5.htm
Sushil ManavTribune News Service
Sirsa, April 2After a tormenting wait for thirteen years of a worst fire accident and six years of setting up of the Justice TP Garg Commission of inquiry by the Punjab and Haryana High Court to ascertain the quantum of compensation and fixing liability for that, the victims have finally got the final report of the commission in their hands.
DAV Centenary Public School, Dabwali, in whose annual function the inferno had devoured 442 persons and gave life-long burn injuries to 150 others on December 23, 1995, will have to pay the major part of 80 per cent of the compensation of Rs 18,11,10,897 awarded to the families of 405 death victims and 88 injured on whose behalf the petition had been filed in the Punjab and Haryana High Court in 1996, according to Anju Arora and Rajesh Rani Girdhar, advocates for the Dabwali Fire Victims Association, who have been fighting the case since 1996.
MP Bidlan, presently, a member of the Haryana Public Service Commission and the then DC, Sirsa, who was chief guest of the DAV Centenary School’s function, has been held negligent in discharge of his public duty, has been held liable to pay 10 per cent of the whole amount of compensation.
This amount, however, will have to be paid to the victims by the state government due to its vicarious liability, the commission has said.
The commission has also held the municipal committee, Dabwali, negligent of its duty and held it liable to pay 5 per cent of the whole sum of compensation. The share of municipal committee will also have to be paid by the state government.
The Haryana State Electricity Board, presently working in the area as the Dakshin Haryana Bijlee Vitran Nigam (DHBVN) will have to pay 5 per cent of the whole amount of compensation.
The share of the DHBVN will also have to be paid by the state government but it would be entitled to recover the amount from the nigam later on, said the report.
The Justice TP Garg Commission, which was set up in 2003 to give its report in six months had submitted its interim report on compensation for 403 death cases in September 2008 and had awarded a compensation of Rs 13,67,10,897 to their families.
The commission had submitted its second interim report with regard to compensation to 88 injured persons in December 2008 and had awarded a compensation of Rs 4.44 crore for them. The commission had said at that time that the liabilities would be fixed on the respondents in its final report.
The commission has left the matter of interest on the Punjab and Haryana High Court, which will also decide the period for which the interest is to be paid to the victims.

Plea disposed of http://www.tribuneindia.com/2009/20090403/haryana.htm#11http://www.tribuneindia.com/2009/20090403/haryana.htm#11
Tribune News Service
Chandigarh, April 2Chief Justice Tirath Singh Thakur and Justice Hemant Gupta disposed of a PIL filed by city-based World Human Rights Protection Council, through president Ranjan Lakhanpal, seeking directions to the Union government to initiate steps for release of Indian prisoner Madan Lal of Sirsa, who is reportedly lodged in Bahawalpur jail of Pakistan since 1967.
Lakhanpal pointed out the Centre had informed the national human rights commission (NHRC) in this case that Pakistan conveyed he was in Bahawalpur jail from 1967 to 1984, but thereafter nothing was known.

KAS ExamsHC dismisses pleas against minimum age criteria http://www.tribuneindia.com/2009/20090403/j&k.htm#11
DS Chauhan
Jammu, April 2A number of candidates appearing in the Kashmir Administrative Services exams suffered a jolt when Justice Nirmal Singh of the Jammu and Kashmir High Court has dismissed a batch of writ petitions filed by Arjun Singh and others involving similar nature of controversy.
Justice Nirmal Singh held that the government was right in its decision to fix a cut-off date as far as the minimum age was concerned for making selection to a post under the state.
The J&K Public Service Commission vide a notification dated December 30, 2008, had invited applications for the J&K Combined Competitive (Preliminary) Examinations, 2009 for direct recruitment on 398 posts in three different services i.e., administrative, police and accounts. The eligibility criteria was that a candidate should possess bachelor’s degree and even the candidates having appeared in BA exam and awaiting results were eligible subject to having cleared the said degree at the time of appearing in the main examination.
The age criteria was that a candidate should be 21 years of age and should not be 35 years as on January 1, 2008. The fixation of the minimum age of 21 years as on January 1, 2008, was challenged in a batch of petitions. It was argued that the respondent state arbitrarily prescribed the minimum age limit by fixing a particular cut-off date. And it was not in the interest of those students who were not 21 years of age as on January 1, 2008, but attained this age even one day after the cut-off date and were also fulfilling the educational qualification criteria.
The high court, while dismissing the batch of petitions, observed that “the candidates seeking appointment/direct recruitment to these three services, thus, shall have to fulfil the conditions of eligibility in terms of Rule 5 of SRO 387 as far as educational qualification, minimum and maximum age limit are concerned. The petitioners, in the case in hand, who admittedly have attained the minimum age after the cut-off date in the impugned notification, cannot, by any stretch of imagination, be said to be eligible for applying for the services in question, and thus, their candidature cannot be directed to be considered by the commission.”
The court, holding the petitions as not maintainable, held that “the commission shall not be under any obligation to accept the candidature of those candidates whose application forms stand accepted in view of the interim directions passed by this court in some of the writ petitions. The said application forms shall also be deemed to have been rejected.”

Maya promises reservation in army, judiciary http://www.tribuneindia.com/2009/20090403/himachal.htm#1
Lalit MohanTribune News Service
Una, April 2BSP president Mayawati played the old and time-tested card of promising reservation in government jobs for various sections of society as she kicked off party campaign in Himachal from Una district today.
Reading her written speech at the Indira Gandhi cricket stadium today Maya promised that if voted to power she would ensure proper implementation of reservation in jobs for lower castes and economically backward from the upper castes. She also promised to implement reservation policy in army and judiciary.
She alleged that both the Congress and the BJP during their stints in power had diluted the reservation policies meant for the benefit of poor and lower classes. The policies of both the Congress and the BJP are pro-rich.
The naxalite problem in the country has increased due to the failure of both the Congress and the BJP to redress the problems of poor.
Speaking a few lines on the state concerning issues Mayawati said that she had been appraised about the problems of state ex-servicemen and would take up the matter with the union government. Mayawati did not speak anything on issue of invoking National Security Act (NSA) against Varun Gandhi.
She also announced all the four party candidates from the state that included three from upper caste and just one from the reserved category at the reserved parliamentary constituency of Shimla.
The BSP candidates that Mayawati introduced to public here today include Mangat Ram Sharma, a mink blanket industrial unit proprietor from Tahliwal industrial area of Harmirpur parliamentary constituency, Col Narinder Singh Pathania (retd), an ex-serviceman from Kangra, Lala Ram Sharma, a businessman from Mandi and Som Nath from Shimla constituencies, respectively.
Gain Chand, a former Congress MLA, also joined the BSP on the occasion. Mayawati also announced that the BSP would not enter into poll alliance with any party in the forthcoming elections from Himachal and would contest the elections on its own.
The first major election rally of BSP in the state was attended by about 3000 workers. However, the sources available here said that majority of BSP workers who participated in today’s rally had come from adjoining areas of Punjab. The penetration of BSP cadres even in the remote areas of the state was also evident from the fact some party workers also arrived in the rally from Lahaul and Spiti.

Amendment to Drugs and Cosmetics Act irks manufacturers http://www.tribuneindia.com/2009/20090403/himachal.htm#12
Ambika Sharma
Solan, April 2Even as the Ministry of Health and Family Welfare has enacted an amendment to the Drugs and Cosmetics Act, 1940, making manufacture, sale and distribution of adulterated and spurious drugs a non-bailable offence the manufacturers have started raising voice against its stringent provisions.
The March 19 gazette notification while amending the Act has enhanced the quantum of punishment in such cases for a life term and a fine of not less than Rs 10 lakh or three times the value of drugs confiscated. But since the notification lacks any implementation date its enforcement is yet to see the light of the day.
Controversy has, however, started brewing up as the drug manufacturers asserted that the amendment was equivalent to the draconian Terrorist Activities Disruption Act whereby a drug manufacturer had been deprived the right to justify his position by making it completely a non-bailable offence.
Chairman of the India Pharmaceutical Entrepreneurs RK Arora said, “The amendment has been drafted in haste and it lacked working conduct for a drug inspector who was supposed to enforce the Act.
The Act in the present form will not only punish a poor manufacturer but also has failed to accord him a fair chance to prove his innocence.”
He said, “A vitamin if not stored in proper conditions and exposed to heat could become spurious and there were several such drugs which required refrigeration facilities at the retail level. In case a drug is inadequately stored a manufacturer will be made to bear the brunt of its deteriorating quality.”
The issue has now been referred to the Drug Technology Advisory Board, which was looking into its ramifications after various drug manufacturing organisations presented their concern at the lacunas visible at the very inception.

Advocate’s agent attacked http://www.tribuneindia.com/2009/20090403/himachal.htm#13
Our Correspondent
Kangra, April 2Sudhir Kumar (26), an agent of advocate RS Kanwar, was allegedly attacked by three persons on the court premises here today. The attackers also made a bid to kidnap him that, however, was foiled by traffic constable Kamarjeet Singh, who appeared on the scene, the police said.
The Kangra SDPO, OP Jamwal, told mediapersons that three persons arrived near the local court premises at around 5 pm and allegedly attacked Sudhir of Kalaid and stabbed him in his leg.
Sudhir was rushed to the Kangra Civil Hospital where his condition is stated to be out of danger.
He said preliminary investigations into the case revealed that the trio was reportedly trying to kidnap him. Jamwal further said traffic constable Kamarjeet Singh managed to nab one of the culprits identified as Soni of Nandared.
He said other two accused identified as Goldy of Gaggal and Vijay Kumar of Icchhi, however, managed to flee at that time but later Vijay, too, was nabbed by the police during a raid at Icchhi.
The accused, Soni, told the police that there was some dispute between Goldy and Sudhir. But Sudhir refuted the charges and said they were not known to him.

SC notice on smoking in films
http://www.tribuneindia.com/2009/20090403/nation.htm#15
R SedhuramanLegal Correspondent
New Delhi, April 2The Supreme Court today sought the response of film director Mahesh Bhatt and others to a central government petition, challenging a Delhi High Court verdict that has lifted the ban on smoking scenes in films and TV programmes.
A Bench headed by Chief Justice KG Balakrishnan issued notices after Additional Solicitor General Gopal Subramanium contended that allowing such scenes would result in more and more people getting hooked to the hazardous habit.
Bhatt and others had successfully challenged in the High Court the 2006 ban imposed at the initiative of then Health Minister Anbumani Ramadoss.
The High Court had, in January this year, quashed the ban on smoking scenes in films and television programmes, observing that such scenes were a reality of life and curbing it would violate creative artistes’ fundamental right to freedom of speech and expression.
The Centre’s petition, filed by the Health Ministry, has cited as many as 63 reasons for setting aside the HC verdict.

File status report on GM food in eight weeks: SC tells Centre http://www.tribuneindia.com/2009/20090403/nation.htm#15
R SedhuramanLegal Correspondent
New Delhi, April 2The Supreme Court today directed the Centre to file a status report on the implementation of the Food Safety and Standards Act 2006 and import and mandatory labelling of GM food products.
A Bench headed by Chief Justice KG Balakrishnan issued the order after senior counsel Pinky Anand, appearing for the PIL petitioner Vandana Shiva, maintained that the government was not facing any constraint in its implementation due to its obligations under the World Trade Organisation (WTO)
The government had notified a law making labelling of GM food items compulsory, but it was enforcing it, she said.
Appearing for the Centre, counsel TS Doabia said the government was taking steps in this direction. The government had not approved genetically modified (GM) food or crops, he contended.
Counsel Anand said the people had the right to have information relating to the food products they were buying.

Politics and justice
http://www.tribuneindia.com/2009/20090403/edit.htm#6
Poll-related petitions flood courtsby R Sedhuraman, our legal correspondent
EVERY time the Lok Sabha elections are round the corner, poll-related petitions fly thick and fast across the country, with litigants rushing to courts and the judiciary throwing out the pleas with equal speed in most cases. And the scene is no different this time when the nation is witnessing the poll battle for the 15th edition of the Lower House, also known as the House of the People.
The judiciary disposes of such cases with alacrity as it is fully aware of the importance of the largest democratic exercise and in the process, makes or mars prospects of the petitioners bracing up for the electoral race.
In fact, this time the poll-related cases seem to have greater depth, variety and substance than those filed in the past. For the issues involved range right from the appointment of Naveen Chawla as the Chief Election Commissioner at the top of the heap to convicted politicians queueing up before the judiciary at the lower rung.
Uppermost in the minds of such tainted politicians, who knock at the doors of the judiciary seeking suspension of their conviction and sentence to enable them to contest, is the urge to prove a point – that they still enjoy the confidence of the all-important voter. They feel that winning the poll and sharing power would refurbish their sullied image, besides staving off the legal threat, at least for some years.
Several poll-related case have come up to the level of the Supreme Court and some of these are still pending before it. Among the first few PILs was a petition seeking a directive to the Centre not to go ahead with the appointment of Chawla in view of several controversies that stalked him.
The latest problem was a letter shot off by outgoing CEC N Gopalaswamy to the President, listing a series of charges against Chawla for passing on confidential information to the Congress that heads the UPA government. The PIL had cited this letter.
However, a Bench headed by Chief Justice KG Balakrishnan threw out the PIL, observing that the court had its limitations in interfering with the elaborate, well laid-out procedure followed by the government for such appointments.
The biggest gainers of these court interventions were the three start-up parties down South, Tamil Nadu and Andhra Pradesh to be precise, as they have been allotted common symbols, the privilege meant only for recognised parties with proven poll credentials.
Despite stiff opposition from the Election Commission, the CJI Bench issued an order in favour of the parties. This would now enable the Praja Rajyam of Telugu actor Chiranjeevi to use the “rail engine” to chug its way to Parliament and the assembly and former IAS official Jai Prakash Narayan’s Lok Satta to make a similar attempt, using the “whistle” symbol. The DMDK of a former Tamil matinee idol would try and “drum” up its way to the Lok Sabha.
The RJD’s Mohammed Shahabuddin was not so lucky. The sitting MP from Siwan, Bihar, succeeded in convincing the Supreme Court to issue a directive to the Patna High Court for an early hearing of his plea for a stay on his 10-year sentence in an attempt to murder case.
But the HC subsequently rejected his petition, thereby trashing his hope of getting back his seat in the green-carpeted circular House with a dome-roof, presided over by the Speaker.
In fact, a Bench headed by Justice Arijit Pasayat expressed its displeasure over such attempts, observing it would be better if elected bodies had fewer criminals. It made the comments while hearing a petition by a POTA convict from Andhra Pradesh.
Another high-profile poll-related case pertains to the BJP’s Varun Gandhi, son of party leader Maneka Gandhi. At the time of writing this column, the Uttar Pradesh police had arrested him under the National Security Act (NSA) for making an inflammatory public speech while campaigning in his Pilibhit constituency.
Earlier, he had obtained time-bound anticipatory bail from the Delhi High Court. The EC also had intervened in the matter, advising the BJP not to field him, but the saffron party rejected it.
However, the party appears to be divided on how to deal with the situation. On his part, Varun had alleged that the video, purported to contain his controversial remarks, was doctored and that he had full faith in the judiciary. At the same time, he also asserted that he would not “retract a single step.”
The April-May election to the 545-member House also brought under public glare an apex court order that had allowed cricketer-turned-politician Navjot Singh Sidhu to contest the Amritsar Lok Sabha seat in a byelection by staying his conviction and three-year sentence in a road rage killing case. Sidhu retained the seat vacated by him in the wake of his conviction.
Bollywood star Sanjay Dutt, sentenced to six years for illegal possession of arms, also sought a SC stay on his conviction, citing Sidhu’s case. Shortly after Sanjay had put in his plea, three lawyers from Lucknow, where he had aspired to contest as a candidate of the Samajwadi Party, filed a PIL, questioning the validity of the relief given to Sidhu and voicing its objection to allowing convicted candidates to jump into the poll fray.
The CJI Bench, however, dismissed the PIL as withdrawn, after finding fault with the method adopted to challenge the court order and the “timing” of the plea. Senior counsel Soli Sorabjee did not agree with the “timing” remark, insisting that now was the right time, not after the election. His plea went in vain in that case. But the court subsequently rejected Sanjay’s plea for contesting the poll, drawing a clear distinction between his case and that of Sidhu.
“The petitioner has been convicted for serious offences…we do not think that this is a fit case” for relief, the CJI Bench ruled on March 31 while dismissing Sanjay’s plea, and in the process dampening the spirit of similar candidates awaiting verdicts.

HC seeks report on illegal sand mining in coastal areas
http://timesofindia.indiatimes.com/Mumbai/HC-seeks-report-on-illegal-sand-mining-in-coastal-areas/articleshow/4351102.cms
2 Apr 2009, 1904 hrs IST, PTI
MUMBAI: The Bombay High Court on Thursday sought a report on illegal sand mining operations in coastal districts of Ratnagiri, Sindhudurg and neighbouring Navi Mumbai area. A bunch of PILs, including the one filed by city-based NGO Janhit Manch, has alleged that illegal sand mining is being carried out in several areas of Ratnagiri, Sindhudurg, and Navi Mumbai. In Navi Mumbai’s CBD Belapur area, state environment minister Ganesh Naik owns some of the mining units, the Janhit petition has alleged. All these activities are going on in Coastal Regulation Zone (CRZ) where mining is expressly prohibited, Janhit’s lawyer Rahul Thakur said. However, government pleader Pradip Patil said that sand mining in CRZ areas has been stopped completely. Since Thakur challenged this, division bench of Chief Justice Swatanter Kumar and D Y Chandrachud appointed a local lawyer as ‘court commissioner’ to find out whether sand dredging was underway in Navi Mumbai. In Ratnagiri and Sindhudurg, court directed respective Chief Judicial Magistrates to visit spots where mining was allegedly underway and submit a report within four weeks.

Housing society secy pays for poor service
http://timesofindia.indiatimes.com/Mumbai/Housing-society-secy-pays-for-poor-service/articleshow/4352056.cms
2 Apr 2009, 2333 hrs IST, Viju B, TNN
MUMBAI: This landmark order will bring cheers to numerous residents who have been struggling to get a proper response for their grievances from office-bearers and committee members of cooperative housing societies. The Central Mumbai District Consumer Disputes Redressal Forum has imposed a penalty of Rs 7,000 on the secretary of Chandra Bhuvan Cooperative Housing Society at Bhoiwada for not replying to a letter sent by a resident of the building. The complainant was a senior citizen, Madhuri Gujar, who had filed an application for the nomination of an associate membership as she was ailing. An associate member has the status of a person with power-of-attorney and has the right to contest elections and even attend annual general meetings of the society. “But the secretary was not accepting my letter on the grounds that there was a case pending at the cooperative court. I then sent the letter through housing federation’s office,” the complainant said. But even then, Gujar did not get a reply. Gujar’s counsel argued that the new amendment in the Maharashtra Cooperative Societies Act Clause 73 (1 AB) put the onus on the secretary of the housing society. Section 73 of the Act states that every member is required to execute an indemnity bond within 15 days of taking charge of the office. According to the bond, the committee members are responsible for all actions taken by the society. The counsel for the secretary, meanwhile, argued that the complainant could not file a personal case against the secretary. The consumer forum ruled that since the secretary had not replied to the member’s letter it was deemed that a deficiency of service and negligence of duty under the Consumer Protection Act 2005 had taken place. Consumer activists have welcomed this order. “This is a landmark order. There are many officer-bearers who do not bother to address the grievances of the members of a housing society. This order will be a deterrent for them,” said consumer activist Rajan Almichandani said. He said Section 73 (1 AB) of the Act was introduced precisely to rein in such errant office-bearers. “The cooperative registrar’s office is flooded with thousands of complaints from housing society members against office-bearers. The consumer court has proactively taken up the issue and imposed penalty in accordance with the provisions of the Consumer Protection Act,” Alimchandani said.

HC directs state over policy for political vandals
http://timesofindia.indiatimes.com/Mumbai/HC-directs-state-over-policy-for-political-vandals/articleshow/4352123.cms
2 Apr 2009, 2347 hrs IST, Shibu Thomas, TNN
MUMBAI: The Bombay high court on Thursday directed the Maharashtra government to lay down a policy to recover damages from vandals who destroyed property during political protests. A division bench of Chief Justice Swatanter Kumar and Justice Dhananjay Chandrachud asked the government to furnish a list in four weeks, of cases where the collector had imposed a fine on protesters in accordance with the new government rule. “Have you taken action or recovered damages against even one person who has indulged in the destruction of government property?” the judges said. “You have video clippings,” they added. The issue came before the court after the Chief Justice ordered that a letter written by former Mumbai police commissioner Julio Ribeiro on the government’s failure to act against vandals be converted into a PIL. Ribeiro pointed out four incidents earlier this year when Shiv Sena workers ransacked a hotel (January 21), supporters of minister Narayan Rane attacked the office of a Marathi daily (January 22), activists of MNS vandalised the office of the registrar at Mumbai University (January 28) and MNS workers damaged a beauty parlour in Thane(February). “(The incidents) highlight the growing menace of politicians who instigate their followers,” the former cop said. Assistant government pleader Niranjan Pandit told the court that FIRs had been lodged in all the four incidents and chargesheets had already been filed in two of them. The court said that it could order the collector to pay the damages in case he failed to do his duty.

HC tells Bisoi to treat ailing kids at AIIMS
http://timesofindia.indiatimes.com/Delhi/HC-tells-Bisoi-to-treat-ailing-kids-at-AIIMS/articleshow/4351840.cms
3 Apr 2009, 0100 hrs IST, TNN
new delhi : Holding that “life is to be given preference over suspension of an employee” the Delhi High Court on Thursday set aside objections by AIIMS and asked it to permit suspended cardio thoracic surgeon Dr Bisoi to treat toddler patients awaiting complex surgery at the premier hospital. “Need and necessity to undertake and perform surgery at AIIMS out-ways and is more important than the right to suspend an employee,” an HC bench comprising chief justice A P Shah and justice Sanjeev Khanna observed while creating an exception in favour of the suspended doctor so that his medical expertise becomes available to children who need complex Arterial Switch Operation (ASO). At the same time HC made it clear its order was not “expression of any opinion on the merit and justification of the suspension order.” The court also said Dr Bisoi will not be paid any extra remuneration for his services nor can he use this permission as a ground to challenge his suspension. In brushing aside AIIMS’ protests that “administrative difficulties” would crop up if Bisoi is permitted entry into AIIMS, HC was guided by the fact that the right to health care is a part of fundamental right to life.” We are not merely concerned with the case of baby of Rekha (who had moved HC) but other babies also waiting for the operation, as is clear from the affidavit of AIIMS director,” the bench said. “We direct that though Dr Bisoi is under suspension, he should be permitted to undertake ASW on patients for which presently AIIMS doesn’t have a properly qualified and competent surgeon to perform the said operation,” HC added. The court said in order to avoid any controversy, the question whether a baby requires ASO will be examined by the hospital authorities after diagnostic tests under supervision of one Dr Anita Saxena. It also left it to the discretion of Bisoi to take a call if a particular patient is in need of ASO or not. Converting a letter written by Rekha into a PIL, the Bench had earlier this week taken suo motu cognizance over the allegation that her son was suffering after Bisoi was suspended by the health ministry on March 09.

Lodge FIR against 5 cops for fake encounter: Gzb court
http://timesofindia.indiatimes.com/Delhi/Lodge-FIR-against-5-cops-for-fake-encounter-Gzb-court/articleshow/4352068.cms
3 Apr 2009, 0058 hrs IST, Lalit Kumar, TNN
ghaziabad : A Ghaziabad court has ordered the filing of a report of murder, abduction and concealment of evidence against a police station chief, two sub-inspectors and two constables for allegedly stage-managing an encounter killing of two persons. The court’s order came after Naushad, the father of Firoz one of the two men killed in the encounter challenged the police story about the two being shot in an encounter after they robbed a businessman in Indirapuram on March 3. The encounter had led to heavy rioting and arson in the city on March 4 with the New Bus Terminal police post and several police vehicles being burnt. The police had later been able to produce only a case of theft as the crime history of one of the two men. Naushad told the court that the Indirapuram police had picked up his son and one Abdul from their homes on March 3 saying the two were required for some questioning and will be released soon. However, Naushad said that the next day, he read in the evening dailies that his son and Abdul had been shot by Indirapuram police station encounter-specialist inspector Jitendra Kalra, sub-inspectors Dhiraj Singh and HN Singh and two constables. The police claim the men were escaping after committing a loot when they were shot by the police in self-defence. Naushad also said in his application to the court that the postmortems on Abdul and Firoz were carried out on the night of March 6 declaring the bodies to be those of unidentified men. However, he said the two victims had been earlier identified even in the newspapers. Both the victims were residents of Islamnagar in Ghaziabad.

Judge scotches rumours, says he’s not afraid
http://timesofindia.indiatimes.com/Delhi/Judge-scotches-rumours-says-hes-not-afraid/articleshow/4351838.cms
3 Apr 2009, 0100 hrs IST, Smriti Singh
NEW DELHI: Dragged into a controversy over stray remarks that he was “afraid of hearing the (Tytler) case,” Additional Chief Metropolitan Magistrate Rakesh Pandit on Thursday said he was not afraid of anyone and had cancelled his leave. ACMM Pandit, who has been hearing the 1984 Sikh riots case involving former union minister Jagdish Tytler for the past six months, was on leave on March 28. As a result, the CBI had to file its final investigation report in the court of the link metropolitan magistrate. This had raised some eyebrows. Referring to the “rumours”, ACMM Pandit said: “I was on leave during the last hearing and there was some talk that I went on leave to avoid hearing the case. In fact, I was planning to go on further leave, but now I want to state that I have cancelled my plan to hear the case.” The judge’s statement, which came as a surprise to all present in the courtroom, was immediately responded to by senior counsel H S Phoolka, who was appearing for Delhi Sikh Gurdwara Management Committee. Phoolka said he had full faith in the judge. But Phoolka, the riot victim’s counsel, then alleged CBI’s collusion with Tytler. “The CBI seems to be hand-in-glove with the accused who claims he has been given a clean chit,” Phoolka said. Raising objections over an alleged leak of the report, Phoolka said, “Even before the victim or the court could go through the report, the accused had all the details. He (Tytler) told everyone that he had been given a clean chit. It shows the shoddy attitude of the CBI.” Stating that Tytler’s conduct amounted to “contempt” of court, Phoolka requested the court to take strict action.

Order reserved in parcel bomb case
http://timesofindia.indiatimes.com/Delhi/Order-reserved-in-parcel-bomb-case/articleshow/4351842.cms
3 Apr 2009, 0100 hrs IST, Abhinav Garg
NEW DELHI: After a marathon hearing of more than three hours, the Delhi High Court on Thursday reserved its orders in the Sikand murder case in which the accused, a former army officer, has challenged his conviction by a trial court. A division bench comprising justice Pradeep Nandrajog and justice Aruna Suresh wrapped up the hearing into a case that gained prominence due to modus operandi of the crime. The convict, S J Chaudhari killed his victim, Kishen Sikand, a Delhi businessman by sending him a parcel bomb which exploded on contact more than two decades ago. On Thursday, HC heard additional solicitor general P P Malhotra complete his arguments on behalf of the CBI when he argued that the chain of circumstances linking the convict to the crime was complete and CBI had managed to successfully place evidence in this regard. Malhotra defended the expert opinion placed on record by the agency that says that Chaudhari used a typewriter recovered from his place to type the address on the parcel bomb. Earlier HC had expressed doubts about the evidentiary value of the typewriter. Senior lawyer K T S Tulsi argued on behalf of the victim’s family and stressed that all precautions were taken by the prosecution to furnish an expert opinion. He maintained that the trial court’s conviction was correct as it had taken other circumstantial evidence also into account. Chaudhari was convicted by a sessions court last year after a trial spanning a quarter of a century, forcing the 98-year-old father of the victim to move HC urging that the case be speeded up so that he gets justice.

Why leaders aren’t nailed in riot cases
http://timesofindia.indiatimes.com/Delhi/Why-leaders-arent-nailed-in-riot-cases/articleshow/4351846.cms
3 Apr 2009, 0059 hrs IST, Manoj Mitta TNN , TNN
NEW DELHI: Gujarat minister Maya Kodnani was the first minister anywhere in the country to be arrested in connection with communal violence. When Tytler resigned from the Manmohan Singh government in August 2005, he was the first minister to have been forced to do so for being indicted by a judicial probe into communal violence. If the 2005 indictment by the Justice G T Nanavati Commission did not translate into a trial against Tytler, it was because the CBI claimed in the court that there was no evidence to corroborate the allegations made against him by solitary witnesses to two separate instances of his alleged involvement in the massacre of Sikhs in the wake of Indira Gandhi’s assassination. If Kodnani, on the other hand, is currently in police custody for her alleged role in the 2002 Gujarat riots, it is thanks to the independence displayed by a Supreme Court-appointed special investigation team. The success of this ad hoc body underlines the failure of regular law enforcement agencies (CBI or local police) in communal violence cases involving political leaders. Legally, though, the case against Tytler is still alive. For, the CBI’s clean chit is not binding on the trial court. It is open to the court to reject the CBI’s recommendation to close the case. The court exercised this option in December 2007 when the CBI had first filed a closure report in the same case claiming that one of the crucial witnesses, Jasbir Singh, was untraceable. The court had then directed the CBI to conduct further investigation as it turned out that Jasbir Singh was available in the US and was willing to give his testimony from there. In its second closure report filed this week, the CBI claimed that Jasbir Singh and the other witness, Surinder Singh, proved to be too unreliable for it to base its charges on their testimonies. Riot victims in turn contended that the agency was suppressing the corroborative evidence. They also alleged that the CBI’s clean chit was timed to legitimize the Congress party’s decision to field Tytler as a candidate in the current election. It remains to be seen whether the court will again reject the closure report on April 9, the next date of hearing. Whatever the outcome of the Tytler case in the year that marks the 25th anniversary of the carnage, the big picture is that for the 2,733 Sikhs officially admitted to have been killed in Delhi alone, the legal system has so far imposed punishment on just 13 persons in six murder cases. In all other cases, the police have either accepted closure reports or acquitted the accused, including Sajjan Kumar, another Congress candidate in this election. Tytler and Sajjan Kumar were among the political leaders indicted by the Nanavati Commission, which conducted a re-inquiry into the 1984 riots as the first probe by Justice Ranganath Misra was widely denounced as a whitewash. The first time any judicial inquiry indicted prominent political leaders was the Justice B N Srikrishna Commission which recommended action against Bal Thackeray and Madhukar Sarpotdar of Shiv Sena for their involvement in the Bombay riots of 1993.

Notice to EC on gun deposit order
http://timesofindia.indiatimes.com/Bangalore/Notice-to-EC-on-gun-deposit-order/articleshow/4352383.cms
3 Apr 2009, 0336 hrs IST, TNN
BANGALORE: The Karnataka High Court on Thursday ordered issuance of notice to the Election Commission of India and the state chief electoral officer on a petition challenging the directive to deposit guns and other registered firearms with the police during the Lok Sabha polls. S P Mahadevaiah, president, Kodagu district unit of Veerashaiva Mahasabha, claimed the order issued by the DC on March 11 exempts Kodavas from its purview and it is discriminatory. He challenged the March 14 police notice asking him to deposit his gun in the Ponnampet police station. Hotel told to remove penthouse The high court asked Capitol Hotel on Rajbhavan Road to file a statement by Monday regarding dismantling of penthouse on its terrace. “Under what permission have you put up this structure? You built this and bring large drums and foreign singers to create a nuisance just across the residence of his excellency the governor, where two senior citizens reside? Will you remove it or shall we direct the BBMP? They have structural engineers who can build or dismantle any structure within no time,” the judge sternly asked the the petitioner advocate. G K Bhat, BBMP counsel, said they are ready to remove structures in a day’s time. The hotel management challenged the BBMP notice to remove the structure. Notice to BIAAPA The high court ordered notices to BIAAPA and the Urban Development Department on a petition filed by Messrs Baba Developers. The petitioners challenged the BIAPAA master plan 2021 notification of January 29, 2009 showing its 45 acres of land in Hegganahalli near Devanahalli as agricultural land though it was converted land. Plea dismissed A division Bench dismissed the writ appeal filed by V Shashidhar, president, Akhila Karnataka Police Mahasangha, challenging the endorsement given by the government, saying that police personnel and their family members cannot participate in political activities. Hearing begins The Green Bench headed by the Chief Justice took up the hearing on a batch of writ appeals challenging the Aug. 7, 2008 order of the single Bench quashing the mining leases pursuant to the March 15, 2003 notification. The single Bench had, among other things, suggested nationalization of mining.

Cops find the going tough on the fake money trial
http://timesofindia.indiatimes.com/Chennai/Cops-find-the-going-tough-on-the-fake-money-trial/articleshow/4352102.cms
3 Apr 2009, 0458 hrs IST, A Selvaraj, TNN
CHENNAI: The problem of counterfeit currency is growing at an alarming rate. There are 132 land customs check-points, 93 at ports and 36 at international airports but the racketeers still manage to pump in lakhs of such currency. “The periodic seizures by the various law-enforcing agencies are only the tip of the iceberg. Those caught may not know, most of the time, the brain behind the racket,” a senior police officer said. In 2008, the Coimbatore police and banks detected as many as 170 cases of circulation of fake currency against none in 2007. Chennai reported 134 cases of counterfeit currency in 2008 and 7 in 2007. According to sources, then Union home secretary Madhukar Gupta had sent a confidential report to all state chief secretaries to assign a nodal officer to curb the circulation of fake Indian currency notes (FICNs). Several government agencies were brought on one platform to share information. “In 2008, banks across Tamil Nadu detected 612 cases of counterfeit currency while the state police unearthed 38. In 2007, banks detected 76 cases and the state police 37,” said CBCID additional director-general of police Archana Ramasundaram. Sources said that about 5-10% or Rs 2,500 crore of the Rs 2,50,000 crore presently in circulation in the country is estimated to be counterfeit. The total seizure of fake currency in the country is about Rs 15 crore a year. The average life of a currency note is 9 to 10 months and fake notes are also discarded. Whenever there is a seizure of fake currency, the RBI announces that notes of a particular series are fake. Information can also be had at http://www.rbi.org.in. Most Indian currency notes have 14 salient features. Some of them are watermarks, security thread, intaglio printing, optically variable ink (OVI), see-through register of flower in front and back registration, number panel, micro letters, ID mark, register, latent image electrolyte water mark, omron anti-copying feature and optically variable ink. Those arrested can be booked under Section 11 of the Customs Act, 1962, under the Conservation of Foreign Exchange and Prevention of Smuggling Activities (COFEPOSA) Act, apart from Sections 489 (A) (counterfeiting currency notes), 489 (B) (using as genuine, forged or counterfeit currency notes), 489 (C), 489 (D) and 489 (E) of the IPC. It hasn’t helped that the country’s borders with Nepal and Bangladesh are porous. The Indo-Bangaldesh border at Dharam Nagar (north Tripura), Karimganj district of Assam and Malda in West Bengal are used to bring FICNs to the north-east. Flights from Dubai, especially to Mumbai, Chennai, Bangalore and Mangalore, are considered sensitive as are those from Colombo to Chennai. Bangalore and north Kerala towns like Kozhikode are some of the distribution centres of FICNs. According to DRI sources, the price of a FICN with a face value of Rs 1,000 ranges between Rs 350 and Rs 400 at the time of its entry into India. When it reaches a wholesale distributor, the price goes up to Rs 550-Rs 600 and further rises to Rs 750-Rs 800 at a a retailer. The payment for overseas suppliers of FICNs is usually in US dollars. According to sources, India’s borders with Pakistan, Nepal and Bangaldesh, the Samjhauta Express from Pakistan and passengers coming by air from Dubai, Pakistan, Thailand, Sri Lanka, Singapore and Malysia are closely checked. selvaraj.a@timesgroup.com

UGC draft law wants ragging to be treated on a par with rape
http://timesofindia.indiatimes.com/Chennai/UGC-draft-law-wants-ragging-to-be-treated-on-a-par-with-rape/articleshow/4352616.cms
3 Apr 2009, 0324 hrs IST, D Suresh Kumar, TNN
CHENNAI: In an attempt to stamp out ragging in educational institutions, the University Grants Commission (UGC) has decided to recommend that ragging be treated as a cognizable offence on a par with rape. Significantly, even “freshers who do not report the incidents of ragging either as victims or as witnesses shall also be punished suitably,” says the UGC’s policy draft on curbing the menace of ragging. A senior UGC official said the regulations, when notified, will serve as a framework on the basis of which the police can take action on complaints from educational institutions and students. “The Supreme Court had entrusted to the UGC the responsibility of preparing the draft regulations,” he said. They are expected to help provide the legal framework for the police to act quickly.

Nod to mining leases despite apex court ban
http://timesofindia.indiatimes.com/Goa/Nod-to-mining-leases-despite-apex-court-ban/articleshow/4352361.cms
3 Apr 2009, 0351 hrs IST, TNN
PANAJI: Despite a Supreme Court ban and a state government task force recommendation, the Union Ministry of Environment and Forest has approved mining leases within a one-km range of Bhagwan Mahavir wildlife sanctuary at Molem based on applications filed by three mining companies. The task force had recommended a one-km safety zone around national parks and sanctuaries as eco-sensitive zones -1. The environment ministry cleared the proposals based on the contentions of the chief wildlife warden (chief conservator of forests), Goa that these were old leases of Portuguese period, and also that the lease operators had ensured enough safeguards to prevent adverse impacts on environment in the area. The three firms, Hede Groups, Achuta V S Velingkar and V M Salgaocar and Brother Pvt Ltd had sought to expand within the one-km zone of the wildlife sanctuary, which forms part of a mega biodiversity hot-spot of the country. The lease sought to be operated by Hede is barely 650 metres from the limits of the Molem national park and requires the felling of 2,128 trees in nine hectares of land. In the case of Velingkar, the lease is located within 160-400 metres from the sanctuary limits while the third one is just 550 metres from the sanctuary, seeking to mine in 8.627 hectares of area in addition to 49.735 already mined. The Supreme Court had earlier referred the matter to the National Board for Wildlife (NBWL), but its non-official members had opposed the proposals in view of the apex court ruling which banned mining in protected areas. The twin sanctuaries in Molem form part of the majestic Sahyadri range of hills and are endangered bio diversity hot-spots with rare species of flora and fauna. The Task Force had also recommended that the one-km zone (marked on draft RP 2021) be treated as ESZ-1, taking note that a number of mines are located close to such zones. The final report on forests submitted by the state level expert committee had also revealed that a total of 1110.81 hectares of forest land has been diverted for mining purpose and 547 hectares more as a buffer for mining activity. The Task Force had recommended that all mines operating in ESZ -1 or 2 be mandatorily phased out within five years. Meanwhile, Claude Alvares of Goa Foundation said the decisions would be challenged before the apex court.

HC seeks details of steps to prevent waterlogging
http://timesofindia.indiatimes.com/Patna/HC-seeks-details-of-steps-to-prevent-waterlogging/articleshow/4352049.cms
3 Apr 2009, 0259 hrs IST, TNN
PATNA: The Patna High Court on Thursday directed Patna Municipal Corporation (PMC) to give details of the steps taken for cleaning of drains and other measures to make the city free of waterlogging during monsoon. A division bench comprising Justice S K Katriar and Justice K K Mandal issued the directive while hearing a PIL of a lawyer Shyam Kishore Sharma seeking direction to the civic agencies, including PMC, to take effective steps for keeping Patna free of waterlogging. The division bench directed PMC to file an action taken report in four weeks. The next hearing will be on June 24. Advocate general P K Shahi submitted that the state government had already sent a project to the Union government for providing civic facilities with sufficient infrastructure for the city under an urban area development programme. But the response from the Centre is still awaited and that has made it quite difficult to improve the situation in the city, he said. Incidentally, many localities in the city, including Kankerbagh, Kadamkuan, Rajendra Nagar, Lohanipur and Pataliputra Colony, had witnessed acute waterlogging.

Gauridhar firing: Juneja brothers surrender in court
http://timesofindia.indiatimes.com/Rajkot/Gauridhar-firing-Juneja-brothers-surrender-in-court/articleshow/4351464.cms
2 Apr 2009, 2114 hrs IST
RAJKOT: Wanted in the Gauridhar firing incident and missing since February 25, Yusuf Juneja surrendered in a city court with his brother Hanif on Thursday afternoon. The court remanded him to police custody for a day with certain stipulations. In the news for the last one month and a half, Juneja brothers went missing after Gauridhar episode in which shots were fired after an altercation over a soil digging issue on a government land on the outskirts of the city. In a clash with a Bharwad group, shots were fired from both the sides. Few persons were also injured in the incident. Since then, police had been on the lookout for Yusuf, a BJP minority cell office-bearer. Last week, police initiated a procedure to declare him an absconder and also sent across a warning to confiscate his property, if he did not present himself. In fact, they obtained a warrant under the CrPC Act from the court to declare him absconder. Scared of police beating and humiliation, Yusuf presented himself before the junior divisional court after 4 pm on Thursday and presented a surrender application. Judge LG Chudasama sent him in a day’s police custody on their request, but set a condition for police to deal with him according to Supreme Court Justice DK Basu’s verdict. Under this verdict, police were instructed to interrogate Yusuf within confines of human rights and not harm him physically. Juneja brothers were handed over to police after a medical check-up at Rajkot Civil Hospital and will again undergo the same on Friday evening before they are re-presented in court. Court also asked police not to parade him in full public view, but granted them the permission to seek further remand if they wished after the day’s remand is over on Friday. source: sandesh

CBI to file Satyam chargesheet on April 9
http://timesofindia.indiatimes.com/India-Business/CBI-to-file-Satyam-chargesheet-on-April-9-/articleshow/4351388.cms
2 Apr 2009, 2020 hrs IST, IANS
NEW DELHI: The Central Bureau of Investigation (CBI) will file April 9 its first charge sheet in the Rs.78 billion ($1.5 billion) Satyam fraud, which surfaced in January shocking India Inc. “We are going to file the first charge sheet April 9,” CBI director Ashwini Kumar told reporters here. Last month, the CBI accused Satyam founder B Ramalinga Raju, his brother and another arrested official of “not sharing everything” in connection with the multi-billion dollar fraud in the IT major. The probe agency wanted them to go through a lie-detector test. The probe agency said if they were dissatisfied with the answers then they would make the Raju brothers undergo a narco analysis. Ramalinga Raju had Jan 7 confessed to having cooked the company’s account books and inflated profits over the past several years. The company founder and his brother Rama Raju were arrested on January 9. Former chief financial officer Vadlamani Srinivas was picked up the next day. Two former auditors from Price Waterhouse were detained later.

SC stays arrest of Kampani
http://timesofindia.indiatimes.com/India-Business/SC-stays-arrest-of-Kampani/articleshow/4352552.cms
3 Apr 2009, 0208 hrs IST, PTI
NEW DELHI: The Supreme Court on Thursday stayed the arrest of J M Financial founder and investment banker Nimesh N Kampani in the Nagarjuna Finance scam case. Kampani and other executives of Hyderabad-based Nagarjuna Finance (NFL), a non-banking financial company, are under investigation for the firm’s alleged failure to return around Rs 98.3 crore collected from 85,160 depositors in 1997-98. A bench headed by Chief Justice K G Balakrishnan stayed the arrest of Kampani as the Andhra Pradesh government had initiated criminal proceedings against him and others in its efforts to recover the alleged defaulted amount to depositors of NFL. Kampani has challenged the Andhra Pradesh High Court judgment that dismissed the anticipatory bail petitions filed by the directors of NFL, including that of Kampani and other non-executive directors. Besides, the High Court on February 25 this year also dismissed another petition filed by Kampani seeking quashing of the criminal proceedings initiated against him on 94 complaints filed by the investors under the Andhra Pradesh Protection of Depositors of Financial Establishment Act, 1999, and removal of his name from the list of accused. Kampani, the well-known Mumbai-based investment banker, submitted that he resigned as an independent director on April 28, 1999, much before the alleged defaults took place.

EDITORIAL COMMENT Beyond The Law
http://timesofindia.indiatimes.com/Editorial/EDITORIAL-COMMENT–Beyond-The-Law/articleshow/4350866.cms
3 Apr 2009, 0001 hrs IST
The comments against Muslims attributed to Varun Gandhi are abominable. They violated the norms of civilised political discourse and the state government invoked relevant sections of the Indian Penal Code to investigate Varun. Many, including this newspaper, welcomed the government’s decision. However, do Varun’s words and later actions call for the UP government to invoke the National Security Act (NSA) against him? The NSA, as the title suggests, is a law meant to deal with threats to national security and crack down on crimes more serious than hate speech. The NSA must, ideally, be used against terrorists. Laws such as the NSA invest enormous power in the state and hence are deemed to be extraordinary legal measures that must be used sparingly and under extraordinary circumstances. Hate speech, especially in the context of elections, is a political tactic. To view it merely in the framework of the law may work against the very purpose of acting to crack down on hate speech. In times of elections, politicians are wont to voice extreme views with the intent of polarising voters. They need to be challenged, legally and politically. But excessive dependence on legal measures to mount a political challenge may backfire. In this case, the move to invoke NSA against Varun undercuts the intent of the law itself. If it results in communal polarisation, the purpose of moving against him would be defeated. The UP government has argued that it was forced to invoke the NSA against Varun after his supporters indulged in violence in the court premises last Saturday. Could this not have been dealt under IPC provisions, as the police did soon after the violence? The NSA, unlike the IPC, allows the government to detain Varun as a preventive measure for up to a year. Expectedly, Varun’s supporters have alleged a political conspiracy in the government’s move to slap the NSA on him. Now, the Supreme Court is set to take a call on the UP government’s decision. The episode is instructive for a young democracy like ours where concepts like freedom of speech are yet to be understood and practised with the responsibilities they entail. Sure, politicians abuse them. But the state can also act irrationally, invoking legal provisions far more stringent than necessary and inadvertently aiding the abuser. It is important for a democracy to strike the right balance between the use and abuse of the right to free speech. Young politicians like Varun too must know what is acceptable in political discourse. Elders in the BJP, however, are undermining his political education when they compare his detention to the experiences of political detenus during the Emergency.

Notices served on medical college officials
http://www.hindu.com/2009/04/03/stories/2009040356090100.htm
Staff Correspondent
SHIMLA: The Himachal Pradesh Government on Thursday served show cause notices on 40 officials of Dr. Rajendra Prasad Medical College at Tanda in Kangra, on the ragging issue.
“Show cause notices have been served on principals, wardens and managers since 2001 when the first case of ragging was reported at the medical college, Tanda. We will not spare the guilty,” State Health Minister Rajeev Bindal said. The officials have been directed to clear their position by April 23, 2009.
Dr. Suresh Sankhyan, who headed the college when Aman Kachroo was ragged to death has already been suspended on a directive of the Supreme Court.
The Dhumal government, in the face of widespread criticism, is leaving no stone unturned to stop ragging in educational institutions in the State. The government has already approved Himachal Pradesh Educational Institutions (Prohibition of Ragging) Ordinance, 2009, besides taking action against four officials of the College including Dr Suresh Sankhyan. The State government has accepted the suggestion of Aman’s father, Rajender Kachroo, to support the ‘Aman Movement’, a country-wide campaign for zero-tolerance to ragging. .
The State government had also announced to set up the Aman Kachroo Memorial Trust with a corpus of Rs 50 lakh to provide scholarships to meritorious students.

“CBI role limited to investigation”
http://www.hindu.com/2009/04/03/stories/2009040360441100.htm
Special Correspondent
NEW DELHI: It was point-counterpoint between the Congress and the BJP on Thursday over the CBI giving a clean chit to Jagdish Tytler in the 1984 anti-Sikh riots case.
Union Home Minister P. Chidambaram said the CBI’s role was limited to investigation and submission of a report to the court. “It is now for the court to take a view.”
But BJP spokesman Ravi Shankar Prasad said: “We doubt the integrity of the CBI. What is distressing is that there has been no proper inquiry and certainly no justice has been delivered to the thousands of Sikhs killed in the 1984 riots.” He expressed the hope that the courts would look at the case dispassionately.
Mr. Chidambaram said whenever there was a difficult case needing investigation, everybody demanded that the CBI look into it. But, when the CBI took a view on the basis of its investigation, one lot of people always criticised it. He was responding to a question by journalists on allegations of misuse of the CBI to serve political ends. “We are damned if we do and damned if we don’t. I urge all political parties to leave the CBI alone.”
Mr. Prasad alleged that the CBI had been used politically to give a clean chit to the high-profile Congress candidate for the Northeast Delhi constituency, who was also, briefly, a Minister in the Manmohan Singh government.
The BJP charged that in the Mulayam Singh disproportionate assets case, the government had abused the CBI and “manipulated” it “to keep Manmohan Singh government in power.” Mr. Prasad said the message was clear: “if you support the government, the CBI will bail you out. But, if you don’t, the CBI will prosecute you.”

Magistrate’s authority to detain Varun questioned
http://www.hindu.com/2009/04/03/stories/2009040355521000.htm
Legal Correspondent
New Delhi: Senior counsel Mukul Rohatgi, appearing for Mr. Varun Gandhi, submitted to the Supreme Court Bench on Thursday that under Section 3 (3) of the National Security Act, the Pilibhit District Magistrate had no independent power to pass a detention order.
A Bench of Chief Justice K.G. Balakrishnan and Justice P. Sathasivam was hearing a habeas corpus petition filed by the BJP candidate, challenging his preventive detention under the NSA.
Mr. Rohatgi said the State government would have to expressly confer it on him giving reasons and specifying the period for which such detention was required. But the order did not mention anything, he said. Further the documents relied on were not supplied to the petitioner and this would materially affect the order of detention.
Counsel said the petitioner could not be held responsible for incidents that happened after his arrest. He said Mr. Varun Gandhi was shifted from one jail to another and according to media reports this was done since there was a threat to his life. He needed time to file his nomination and for campaigning, counsel said and quoted judgments to argue that even NSA detenus could be granted interim bail.

Habeas corpus petition to be posted before another High Court Bench
http://www.hindu.com/2009/04/03/stories/2009040359840500.htm
Special Correspondent
It challenges the detention of MDMK propaganda wing secretary Nanjil Sampath CHENNAI: A Division Bench of the Madras High Court on Thursday directed the Registry to place a habeas corpus petition (HCP) challenging the detention of Nanjil Sampath, MDMK propaganda wing secretary, before the Chief Justice, for necessary orders posting it before any other Bench.
The Bench, comprising Justices Elipe Dharma Rao and C.T. Selvam, passed the order when the HCP came up before them and MDMK general secretary Vaiko started making submissions in defence of the detenu.
Mr. Justice Dharma Rao said that Mr. Justice Selvam was expressing his objection to hearing the petition. To this, Mr.Vaiko said he had no objection.
In its order, the court said that when the matter came up for admission, Mr. Justice Selvam expressed his objections to hearing it. Hence, the Registry was being directed to post the matter before any other Bench after obtaining necessary orders from the Chief Justice.
In the petition, Sasikala, wife of the detenu, submitted that her husband was arrested on March 7 in connection with a speech on Eelam Tamils at a hall meeting at Tirupur on March 1. He was released on bail with stringent conditions. By an order dated March 14, Mr. Sampath was detained under the NSA by Tirupur Collector.
The petitioner submitted that the detenu’s entire speech had not been placed before the detaining authority. The detenu had only explained to the public what was happening in Eelam and elaborated his viewpoint.
The detention order was arbitrary and illegal. It was based solely on the speech delivered by the detenu at the meeting and the statements recorded under section 161 Cr.P.C., which contained isolated parts of his speech.

Information on completed cases can be obtained under RTI Act: Activist
http://www.hindu.com/2009/04/03/stories/2009040358180200.htm
Shyam Ranganathan
It would not apply to notified intelligence and security organisations
CHENNAI: The Directorate of Vigilance and Anti-Corruption (DVAC) has not been forthcoming with information though the State government clarified that the exemption of the DVAC from the purview of the RTI Act did not include cases where the investigation was completed.
V. Madhav, an RTI activist, says that he had filed a petition asking for some information on number of cases where investigations had been completed and the identity of those convicted after investigation, from the DVAC, on October 4, 2008. When no information was forthcoming after 30 days, he filed a first appeal and also visited the Public Information Officer on November 24, 2008. As he was not even allowed to meet the PIO, he filed a petition with the State Information Commission.
Clarification
“I am aware that the DVAC has been exempted under the Right to Information Act by G.O. No. 158 dated 26 August, 2008, but there has been a later press release No. 786 dated 23 September, 2008 from the government, which clarified that information regarding cases where investigations have been completed, information can be obtained,” Mr. Madhav says in his petition to the State Information Commission on December 11, 2008.
He also argues that Section 24(4) of the Act, under which the DVAC has been exempted, mentions that the provisions of the Act would not apply to “intelligence and security organisations” which may be identified by the State and the Central government, “provided that the information pertaining to allegations of corruption and human rights violations shall not be excluded under this sub-section.”
While the High Court has recently upheld the exemption of the DVAC from the RTI Act, the State Information Commission is yet to take up his petition for examination, Mr. Madhav says, while pointing out that the Central Bureau of Investigation (CBI) and the Central Vigilance Commissioner, the equivalent bodies under the Central government, are under the purview of the Act.

State seeks revised opinion from Attorney General
http://www.hindu.com/2009/04/03/stories/2009040354670400.htm
S. Vijay Kumar
On the view of the Madras High Court in connection with February 19 incident
CHENNAI: The State government has sought a revised opinion from Attorney General Milon K. Banerji on the view of the Madras High Court that two senior police officials should be suspended in connection with the February 19 advocates-police clash. According to a government source, the Attorney General had taken some “factually incorrect” points into consideration to form his opinion that was initially communicated to the Chief Secretary of Tamil Nadu.
“After consultations with the Chief Minister and other top officials, it was decided to seek a fresh opinion from Mr. Banerji. A senior official was sent to New Delhi to present the facts and get revised opinion…we have to file our reply before the Supreme Court on the issue on April 9,” one official said. A three-member Bench comprising Justices S.J. Mukhopadhaya, V. Dhanapalan and K. Chandru, in an order on a writ petition taken up suo motu on March 18 observed: “we are of the view that A.K. Viswanathan, IPS, Additional Commissioner of Police (Law and Order), M. Ramasubramani, IPS, formerly Joint Commissioner of Police (North) should be placed under suspension as they were the persons who were at the helm of affairs and under whose direct supervision the operation was carried on.”
“Various legal issues have to be considered before acting on the recommendations of the court. We are also carefully studying the findings of the Justice B.N. Srikrishna Committee that was constituted by the Supreme Court. A few officials, including Mr. Ramasubramani, involved in the lathicharge (on February 19) have already been transferred out,” the official added.

Passport office employees move SHRC
http://www.hindu.com/2009/04/03/stories/2009040359820500.htm
Staff Reporter
HYDERABAD: The agitation by the employees of the Regional Passport Office took a serious turn on Thursday, when police arrested 80 of the striking staff, who later moved the State Human Rights Commission (SHRC) seeking the removal of the Regional Passport Officer B. Balabhaskar.
For the second day, work in the passport office was affected with the Group C employees striking work in protest against the installation of the CCTV cameras.
The agitating employees alleged that the footage was being viewed by certain officials after the office hours. The other demand was the payment of honorarium of Rs.5,000 to employees for handling maximum number of applications last year.
The arrested employees were taken to Bollaram police station and later let off.
The employees said that they would continue their protest till the Regional Passport Officer is removed.

High Court dismisses MUDA’s plea
http://www.hindu.com/2009/04/03/stories/2009040356460300.htm
Staff Reporter
Bangalore: The Karnataka High Court has dismissed an appeal by the Mysore Urban Development Authority (MUDA) against a single judge order refusing early hearing of a case relating to tender for the six-laning of Bangalore-Mysore-Nanjangud Road. MUDA had filed an appeal seeking early hearing as the project was being taken up with financial assistance of Rs. 219.60 crore from the Centre.
According to MUDA, it had called for one single tender for the six-laning of the existing Bangalore-Mysore-Nanjungud highway. It said the technical bids for the project were opened on May 31, 2008 and the tender of KMC Constructions was accepted.
However, on September 17, 2008 the MUDA decided to call for re-tenders saying that there was only one bid for the project.
MUDA then split up the project into four packages. KMC Constructions had moved a single judge against the re-tendering.
A Division Bench comprising the Chief Justice P.D. Dinakaran, and Justice V.G. Sabhahit dismissed the appeal but gave liberty to MUDA to file an application for early hearing before the single judge.

Witness turns hostile in Sankararaman murder case
http://www.hindu.com/2009/04/03/stories/2009040360230800.htm
Staff Reporter
PUDUCHERRY: One of the key witnesses in the Sankararaman murder case on Thursday turned hostile during examination at the Principle District and Sessions Court here.
Durai Kannu, the fifth prosecution witness, contradicted his statement made before the police and the Kancheepuram district magistrate during examination by Special Public Prosecutor N. Devadoss.
He told the public prosecutor that he had not seen the accused and had identified the persons involved in the assault of Sanakararaman after the police showed their photographs.
He was present at the Varadarajaperumal temple at the time of the offence and saw the accused running after assaulting Sankararaman, but could not identify them.
Mr. Davadoss informed Principle District and Sessions Judge D. Krishnaraja that the witness had identified the accused before the police and the Magistrate during the investigation stage.
Since the accused had contradicted his earlier stand, he was treating him as hostile and would cross examine him on Friday.
The other four key witnesses in the case — Sankaraman’s wife Padma, daughter Uma Maithrayee, son Anand Sharma and complainant Ganesh — were also examined by the Special Public Prosecutor.

No, he can’t
http://www.hindu.com/2009/04/03/stories/2009040355510800.htm
The Supreme Court’s refusal to stay the conviction of Bollywood film star and Samajwadi Party candidate, Sanjay Dutt, cannot be faulted. It is a firm application of the law and sends a strong signal against the criminalisation of politics. Two years ago, Mr. Dutt was sentenced to imprisonment for six years under the Arms Act for illegal possession of firearms, which he received from those connected with the 1993 Mumbai bomb blasts. This made him ineligible to contest elections under Section 8(3) of the Representation of the People Act 1951, which disqualifies all those who have been convicted of any offence and sentenced to imprisonment for two years or more for a period of six years from the time of release. Appellate courts have the authority to suspend or grant a stay on an order or conviction, but as the Supreme Court has observed, this power must be exercised only in exceptional circumstances, where failure to stay the conviction would lead to injustice and irreparable consequences (Ravikant S. Patil vs. Sarvabhouma S. Bagali, 2006). In other words, granting a stay on conviction is not the rule but the exception to be resorted to in rare cases depending on the facts of a case.
The case against Mr. Dutt, who was charged with receiving three AK-56 rifles, a pistol, hand grenades, and cartridges that were part of a consignment smuggled at the behest of Tiger Memon, the mastermind behind the 1993 terrorist explosions, was an extremely serious one. There were no exceptional circumstances to merit the grant of a stay. Last month, the Patna High Court dashed the hopes of controversial Rashtriya Janata Dal MP, Mohammed Shahabuddin, by refusing to stay his conviction in a case pertaining to the recovery of weapons from his house during a police raid. It is true that the Supreme Court granted such relief to Navjot Singh Sidhu, former Test cricketer and BJP MP, who was charged with culpable homicide. But in that case, the court took note of other considerations — for instance, that he quit his parliamentary seat soon after he was convicted. As a sitting member of Parliament, Mr. Sidhu had the privilege, under Section 8(4) of the 1951 Act, of being able to file an appeal against his conviction and be immune from disqualification until the case was decided in court. The Samajwadi Party is understandably unhappy that Sanjay Dutt, now elevated as its general secretary, cannot contest on its ticket for the prestigious Lucknow Lok Sabha seat. But its representatives must desist from the nasty practice of dragging the court into politics by insinuating that the central government somehow influenced its judgment.

 

 

JUDGEMENTS

Commissioner of Customs & Central Excise Versus M/s Hongo India (P) Ltd. & Anr
http://legalapproach.net/case_details.php?jid=1401
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2009
(Arising out of S.L.P. (C) No. 14467 of 2007)

Commissioner of Customs & Central Excise …. Appellant(s)
Versus
M/s Hongo India (P) Ltd. & Anr. …. Respondent(s)

WITH
CIVIL APPEAL NO. 2009
(Arising out of S.L.P. (C) No.18999 of 2007)
&
CIVIL APPEAL NO. 2009
(Arising out of S.L.P. (C) No.20703 of 2007)

J U D G M E N T

P. Sathasivam, J.
1) Leave granted.
2) In all these appeals, the question for consideration is whether the High Court has power to condone the delay in presentation of the reference application under unamended Section 35 H(1) of the Central Excise Act, 1944 (hereinafter referred to as “the Act”) beyond the prescribed period by applying Section 5 of the Limitation Act, 1963. When S.L.P.(c) No. 14467 of 2007 came up for hearing on 4.12.2008, a two-Judge Bench, after noticing the decision in Commissioner of Customs, Central Excise, Noida vs. Punjab Fibres Ltd., Noida (2008) 3 SCC 73, expressed doubt about the said judgment with regard to the jurisdiction of the High Court in the matter of condoning delay beyond the prescribed period under the Act. After finding that under Section 35H of the unamended Act (before enactment of Act 49/2005), with regard to application for reference, the High Court exercises its advisory jurisdiction in a case where the substantial question of law of public importance arise, the said Bench directed the matter to be heard by larger Bench. In this way, all the above mentioned matters arising from the judgments of the Allahabad High Court on identical issue posted before this Bench for determining the question, namely, “whether the High Court in the reference application under Section 35H (1) of the unamended Act, has power under Section 5 of the Limitation Act, 1963 to condone the delay beyond the period prescribed under the main statute i.e., Central Excise Act.”
3) In all these three matters, Commissioner of Customs &
Central Excise approached the High Court of Allahabad by way of reference application under Section 35 H(1) of the unamended Act beyond the prescribed period as provided in the same. The High Court relied on earlier orders and finding that it has no power to condone the delay in filing the reference application under the said provision, dismissed the reference application as barred by limitation.
4) Chapter VI-A of the Act deals with Appeals. As per Section 35, any person aggrieved by any decision or order passed by a Central Excise Officer may file an appeal to the Commissioner of Central Excise (Appeals) within sixty days from the date of the communication to him of such decision or order. Proviso to sub-section (1) enables the Commissioner (Appeals), if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days.
5) Section 35B speaks about appeals to the Appellate Tribunal. Any person aggrieved by certain decisions/orders passed by the Commissioner of Central Excise or Commissioner (Appeals), may prefer an appeal to the Appellate Tribunal within three months from the date on
which the order sought to be appealed against is communicated to the officer concerned or the other party. Sub-section (5) enables the Appellate Tribunal to condone delay even beyond the prescribed period if there was sufficient cause for not presenting it within that period.
6) Section 35EE provides revision by Central Government.
As per sub-section (2), an application under sub-section (1) shall be made within three months from the date of the communication. However, proviso to sub-section (2) enables the revisional authority to condone the delay for a further period of ninety days, if sufficient cause is shown.
7) Unamended Section 35G speaks about Appeal to the High Court. Sub-section 2(a) enables the aggrieved person to file an appeal to the High Court within 180 days from the date on which the order appealed against is received by the Commissioner of Central Excise or the other party. There is no provision to condone the delay in filing appeal beyond the
prescribed period of 180 days.
8) Unamended Section 35H speaks about reference application to the High Court. As per sub-section (1), the Commissioner of Central Excise or other party within a period of 180 days of the date upon which he is served with notice of an order under Section 35C direct the Tribunal to refer to the High Court any question of law arising from such order of the Tribunal. Here again as per sub-section (1), application for reference is to be made to the High Court within 180 days and there is no provision to extend the period of limitation for filing the application to the High Court beyond the said period and to condone the delay.
9) In these three appeals, we are concerned with “reference application” made to the High Court under Section 35H (1) of the Act before amendment of Central Excise Act by Act 49/2005 (w.e.f. 28.12.2005) by which several provisions of the Act were omitted including Section 35H. However, in view of the reference made it is but proper to consider the question referred before us. Admittedly in all these matters, the Commissioner of Customs & Central Excise approached the High Court by way of reference application beyond the prescribed period of 180 days. The High Court of Allahabad, with reference to the scheme of the Act and in the absence of specific provision for applying Section 5 of the Limitation Act, took note of other provisions i.e., Sections 35, 35B and 35EE, which enable the other authorities to condone the delay if sufficient cause was shown, accordingly, dismissed the reference application filed by the Commissioner of Central
Excise on the ground of limitation.
10) Now let us consider whether Section 5 of the Limitation Act is applicable in respect of reference application filed in the High Court under Section 35H of the unamended Act.
11) Mr. Parag P. Tripathi, learned Additional Solicitor General, appearing for the appellant contended that in view of the fact that the High Court has all inherent and plenary power, is competent to consider the delay even after the prescribed period under the Act. He further contended that in the absence of specific prohibition in the Act for condoning delay particularly in Section 35H in lieu of Section 29(2) of the Limitation Act, Section 5 of the Limitation Act is applicable and the High Court ought to have exercised its power by condoning the delay. He initially contended that since Section 35H speaks about the substantial question of public importance, even the delay, if any, has to be condoned. On the other hand, learned counsel appearing for the respondents supporting the stand taken by the High Court submitted that the Central Excise Act is a self-contained Act and a Code by itself and in the absence of specific provision enabling the High Court to exercise its power by condoning the delay, the High Court is justified in refusing to entertain the reference application of the Excise Department filed beyond the prescribed period. He also contended that in the light of the scheme of the Act and of the fact that sufficient period, i.e, 180 days, has been provided for the Commissioner as well as the other party for making reference to the High Court, the legislative intent has to be respected.
12) Article 214 of the Constitution of India makes it clear that there shall be a High Court for each State and Art. 215 states that every High Court shall be a court of record and shall have all the powers including the power to punish for contempt of itself. Though we have adverted to Section 35H in the earlier part of our order, it is better to extract sub-section (1) which is relevant and we are concerned with in these appeals :
“35H. Application to High Court – (1) The Commissioner of Central Excise or the other party may, within one hundred and eighty days of the date upon which he is served with notice of an order under section 35C passed before the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment), by application in the prescribed form, accompanied, where the application is made by the other party, by a fee of two hundred rupees, apply to the High Court to direct the Appellate Tribunal to refer to the High Court any question of law arising from such order of the Tribunal.”
Except providing a period of 180 days for filing reference application to the High Court, there is no other clause for condoning the delay if reference is made beyond the said prescribed period. We have already pointed out that in the case of appeal to the Commissioner, Section 35 provides 60 days time and in addition to the same, Commissioner has power to condone the delay up to 30 days, if sufficient cause is shown. Likewise, Section 35B provides 90 days time for filing appeal to the Appellate Tribunal and sub-section (5) therein enables the Appellate Tribunal to condone the delay irrespective of the number of days, if sufficient cause is shown. Likewise, Section 35EE which provides 90 days time for filing revision by the Central Government and, proviso to the same enables the revisional authority to condone the delay for a further period of 90 days, if sufficient cause is shown, whereas in the case of appeal to the High Court under Section 35G and reference to the High Court under Section 35H of the Act, total period of 180 days has been provided for availing the remedy of appeal and the reference. However, there is no
further clause empowering the High Court to condone the
delay after the period of 180 days. 13) Reliance was placed to Section 5 and Section 29(2) of the
Limitation Act which read as under:
“5. Extension of prescribed period in certain cases. –
Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.”
“29. Savings.- (1) Nothing in this Act shall affect section 25 of the Indian Contract Act, 1872 (9 of 1872).
(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section
3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections
4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.”
14) In this background, let us examine the contentions raised by both sides. Learned Additional Solicitor General relying on the judgment of this Court in Union of India vs. M/s Popular Construction Co., (2001) 8 SCC 470 contended that in the absence of specific exclusion of the Limitation Act in the Central Excise Act, in lieu of Section 29(2) of the Limitation Act, Section 5 of the same is applicable even in the case of reference application to the High Court. The said decision arose under the Arbitration and Conciliation Act, 1996. The question which arose for consideration in that case was whether provisions of Section 5 of the Limitation Act, 1963 are applicable to an application challenging an award under Section 34 of the Arbitration and Conciliation Act, 1996. In that case, award was filed by the appellant-Union of India in the Bombay High Court on 29.3.1999. The appellant filed an application challenging the award on 19.4.1999 under Section 30 read with Section 16 of the Arbitration Act, 1940. Subsequently, the application was amended by inserting the words “Arbitration and Conciliation Act, 1996” in place of “Arbitration Act, 1940”. The application was dismissed by the learned single Judge on 26.10.1999 on the ground that it was barred by limitation under Section 34 of the 1996 Act. The Division Bench rejected the appeal and upheld the findings of the learned single Judge. The said order was challenged in this Court. Though learned counsel for the appellant relied on the said decision in support of his claim, on perusal of the same, we are unable to concur with him. In paragraph 12, this Court held that as far as the language of Section 34 of the 1996 Act is concerned, the crucial words used in the proviso to sub-section (3) are “but not thereafter” and this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would, therefore, bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the award beyond the extended period under the proviso, would render the phrase “but not thereafter” wholly otiose. No principle of interpretation would justify such a result. Ultimately, this Court dismissed the appeal filed by the Union of India and confirmed the order of the High Court holding that the application filed to set aside the award is barred by limitation.
14) The next decision relied on by the learned ASG was in the case of Sharda Devi vs. State of Bihar, (2002) 3 SCC
705. This relates to an appeal before the Letters Patent Bench in the High Court against judgment of Single Judge. While considering Section 54 of the Land Acquisition Act, 1894, this Court held as under:
“9. A Letters Patent is the charter under which the High Court is established. The powers given to a High Court under the Letters Patent are akin to the constitutional powers of a High Court. Thus when a Letters Patent grants to the High Court a power of appeal, against a judgment of a Single Judge, the right to entertain the appeal would not get excluded unless the statutory enactment concerned excludes an appeal under the Letters Patent.
10. The question which thus arises is whether Section 54 of the said Act excludes an appeal under the Letters Patent. Section 54 of the said Act reads as under:
“54. Appeals in proceedings before Court.—Subject to the provisions of the Code of Civil Procedure, 1908, applicable to appeals from original decrees, and notwithstanding anything to the contrary in any enactment for the time being in force, an appeal shall only lie in any proceedings under this Act to the High Court from the award, or from any part of the award, of the Court and from any decree of the High Court passed on such appeal as aforesaid an appeal shall lie to the Supreme Court subject to the provisions contained in Section 110 of the Code of Civil Procedure, 1908, and in Order 45 thereof.”
It was argued that Section 54 of the said Act contains a non-obstante clause containing the words “an appeal shall only lie”. After finding that Letters Patent is not an enactment, it is the charter of the High Court, this Court found that a non- obstante clause of this nature cannot cover the charter of the High Court. By pointing out Section 54 it was contended that the said Act provides for only one statutory appeal to the High Court and then a further appeal to this Court. In other words, it was submitted that on a plain reading of Section 54, it is clear that a Letters Patent Appeal would not lie against a judgment passed by a Single Judge of the High Court in an appeal under Section 54. On the other hand, counsel appearing for the other side submitted that a Letters Patent Appeal would lie. Accepting the said contention, this Court concluded that Section 26 of the said Act provides that every award shall be a decree and the statement of grounds of every award shall be a judgment. By virtue of the Letters Patent “an appeal” against the judgment of a Single Judge of a High Court would lie to a Division Bench. Section 54 of the said Act does not exclude an appeal under the Letters Patent. It was clarified that the word “only” occurring immediately after the non-obstante clause in Section 54 refers to the forum of appeal. In other words, it provides that the appeal will be to the High Court and not to any other court and the term “an appeal” does not restrict it to only one appeal in the High Court. It was explained that the term “an appeal” would take within its sweep even a Letters Patent Appeal. Though learned ASG heavily relied on the above three-Judge Bench decision, we are of the view that the said decision deals with Letters Patent power of the High Court. There is no dispute that the powers given to a High Court under the Letters Patent are akin to the constitutional powers of the High Court. In such circumstances, when a Letters Patent grants to the High Court a power of appeal, against a judgment of a Single Judge, the right to entertain the appeal would not get excluded unless the statutory enactment concerned excludes an appeal under the Letters Patent. Inasmuch as the Letters Patent enables the High Court that the judgment of a Single Judge would lie to a Division Bench and of the fact that Section 54 of the Land Acquisition Act does not exclude an appeal under the Letters Patent, the said decision is right in holding that under Section 54 there is no bar as to the maintainability of a Letters Patent Appeal. While there is no dispute about the power of the High Court under the Letters Patent jurisdiction, we are of the view that the said analogy is not applicable to the cases on hand.
16) The other decision relied on by the counsel for the appellant is M.V. Elisabeth and Others vs. Harwan Investment and Trading Pvt. Ltd., Hanoekar House, Swatontapeth, Vasco-De-Gama, Goa, 1993 Supp (2) SCC 433. The learned ASG heavily relied on the following observations:
“66. The High Courts in India are superior courts of record. They have original and appellate jurisdiction. They have inherent and plenary powers. Unless expressly or impliedly barred, and subject to the appellate or discretionary jurisdiction of this Court, the High Courts have unlimited jurisdiction, including the jurisdiction to determine their own powers…..”
Here again, there is no dispute about the above proposition. The High Courts in India are having inherent and plenary powers and as a Court of Record the High Courts have unlimited jurisdiction including the jurisdiction to determine their own powers. However, the said principle has to be decided with the specific provisions in the enactment and in the light of the scheme of the Act, particularly in this case, Sections 35, 35B, 35EE, 35G and 35H of the unamended Central Excise Act, it would not be possible to hold that in spite of the above-mentioned statutory provisions, the High Court is free to entertain reference application even after expiry of the prescribed period of 180 days.
17) The other decision relied on is M.M. Thomas vs. State of Kerala and Another, (2000) 1 SCC 666. This case arose out of the vesting of all private forests in the State of Kerala on the appointed day (10.05.1971) under the Kerala Private Forests (Vesting and Assignment) Act, 1971. It is true that in para 14 it was held that the High Court as a court of record, as envisaged in Article 215 of the Constitution, must have inherent powers to correct the records. A court of record envelops all such powers whose acts and proceedings are to be enrolled in a perpetual memorial and testimony. A court of record is undoubtedly a superior court which is itself competent to determine the scope of its jurisdiction. The High Court, as a court of record, has a duty to itself to keep all its records correctly and in accordance with law. Hence, the High Court has not only power, but a duty to correct any apparent error in respect of any order passed by it. This is the plenary power of the High Court. In para 17 of the abovementioned decision, it was held :
“17. If such power of correcting its own record is denied to the High Court, when it notices the apparent errors its consequence is that the superior status of the High Court will dwindle down. Therefore, it is only proper to think that the plenary powers of the High Court would include the power of review relating to errors apparent on the face of the record.”
There is no doubt that the High Court possess all powers in order to correct the errors apparent on the face of record. While accepting the above proposition, in the light of the scheme of the Act, we are of the view that the said decision is also not helpful to the stand taken by the appellant.
18) In the earlier part of our order, we have adverted to Chapter VIA of the Act which provides appeals and revisions to various authorities. Though the Parliament has specifically provided an additional period of 30 days in the case of appeal to the Commissioner, it is silent about the number of days if there is sufficient cause in the case of an appeal to Appellate Tribunal. Also an additional period of 90 days in the case of revision by Central Government has been provided. However, in the case of an appeal to the High Court under Section 35G and reference application to the High Court under Section 35H, the Parliament has provided only 180 days and no further period for filing an appeal and making reference to the High Court is mentioned in the Act. In this regard, it is useful to refer to a recent decision of this Court in Punjab Fibres Ltd., Noida (supra). Commissioner of Customs, Central Excise, Noida is the appellant in this case. While considering the very same question, namely, whether the High Court has power to condone the delay in presentation of the reference under Section 35H(1) of the Act, the two-Judge Bench taking note of the said provision and the other related provisions following Singh Enterprises vs. Commissioner of Central Excise, Jamshedpur and Others, (2008) 3 SCC 70 concluded that “the High Court was justified in holding that there was no power for condonation of delay in filing reference
application.”
19) As pointed out earlier, the language used in Sections 35, 35B, 35EE, 35G and 35H makes the position clear that an appeal and reference to the High Court should be made within 180 days only from the date of communication of the decision or order. In other words, the language used in other provisions makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days which is the preliminary limitation period for preferring an appeal. In the absence of any clause condoning the delay by showing sufficient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act. The High Court was, therefore, justified in holding that there was no power to condone the delay after expiry of the prescribed period of 180 days. Even otherwise, for filing an appeal to the Commissioner, and to the Appellate Tribunal as well as revision to the Central Government, the legislature has provided 60 days and 90 days respectively, on the other hand, for filing an appeal and reference to the High Court larger period of 180 days has been provided with to enable the Commissioner and the other party to avail the same. We are of the view that the legislature provided sufficient time, namely, 180 days for filing reference to the High Court which
is more than the period prescribed for an appeal and revision. 20) Though, an argument was raised based on Section 29 of the Limitation Act, even assuming that Section 29(2) would be attracted what we have to determine is whether the provisions of this section are expressly excluded in the case of reference to High Court. It was contended before us that the words “expressly excluded” would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. In this regard, we have to see the scheme of the special law here in this case is Central Excise Act. The nature of the remedy provided therein are such that the legislature intended it to be a complete Code by itself which alone should govern the several matters provided by it. If, on an examination of the relevant provisions, it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our considered view, that even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent, the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. In other words, the applicability of the provisions of the Limitation Act, therefore, to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of reference application to the High Court. The scheme of the Central Excise Act, 1944 support the conclusion that the time limit prescribed under Section 35H(1) to make a reference to High Court is absolute and unextendable by court under Section 5 of the Limitation Act. It is well settled law that it is the duty of the court to respect the legislative intent and by giving liberal interpretation, limitation cannot be extended by
invoking the provisions of Section 5 of the Act.
21) In the light of the above discussion, we hold that the High Court has no power to condone the delay in filing the “reference application” filed by the Commissioner under unamended Section 35H(1) of the Central Excise Act, 1944 beyond the prescribed period of 180 days and rightly dismissed the reference on the ground of limitation.
22) In view of the above conclusion, we confirm the decision of the High Court. Hence, all the appeals are accordingly dismissed. No costs.

…….…….……………………CJI.
(K.G. BALAKRISHNAN)
……………………………………J.
(P. SATHASIVAM)
….…………………………………J.

(J.M. PANCHAL)
NEW DELHI; MARCH 27, 2009.

Pooja Batra vs. Union of India & Ors. dated 2009-03-27
http://legalapproach.net/case_details.php?jid=1402

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO……… OF 2009
(Arising out of S.L.P.(Crl.)No. 7644 of 2008)

Pooja Batra …. Appellant(s)
Versus
Union of India & Ors. …. Respondent(s)

J U D G M E N T

P. Sathasivam, J.

1) Leave granted.

2) This appeal is directed against the judgment dated 05.09.2008 passed by the High Court of Delhi in W.P. (Crl.) No. 782 of 2008 which was filed by Pooja Batra wife of Deepak Kumar @ Deepak Batra detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as “the COFEPOSA Act”) praying for issuance of a writ of Habeas Corpus to release the detenu i.e. her husband from detention. The High Court, by the said judgment, dismissed the writ petition with costs of Rs.50,000/- on her and directed the department to initiate criminal proceedings against the detenu under Sections 199, 420, 468 and 471 of the Indian Penal Code in exercise of its power under Section 482 of the Code of Criminal Procedure.

3) The case of the department is as follows: (a) The Detaining Authority has issued the detention order dated 05.12.2007 against Shri Deepak Kumar @ Deepak Batra, the husband of the appellant herein on the basis of the facts and documents put up before them and after satisfying with the facts on records that the detenu has propensity and potentiality to indulge in smuggling activities in future. The detenu is the mastermind for import of the goods covered under Bill of Entry No. 589144 dated 25.04.2007. The goods covered under abovementioned Bill of Entry were not only mis-declared in respect of quantity but also there were certain goods which were concealed in the container. The value of such mis-declared/smuggled goods as calculated comes to Rs.87,07,220/- and attracting duty has worked out to Rs. 30 lacs approximately. The detenu had indulged in repeated offences since 2006 as he was not the actual owner of the Importer Exporter Code, (in short “IEC”). The grounds are based on the eight Bills of Entry which were filed by the detenu through his Customs House Agent, (in short “CHA”) and also on the basis of the statements tendered by Shri Naveen Kumar, an employee of CHA. Eight Bills of Entry have been filed by the CHA in the name of firm provided by the detenu. The detenu also provided the photocopy of the IEC. Shri Naveen Kumar also identified the earlier signatures of the detenu on the authorization letter dated 20.08.2007 given by the detenu. Shri Naveen Kumar confirmed the relationship between the last consignment and the earlier eight consignments imported by the detenu. The detenu had fraudulently used IEC No. and PAN No. of M/s Om Prakash Deepak Kumar. The actual owner of the IEC was not aware of the fact that his IEC is being misused by the detenu since 2006 and thorough investigation conducted by the Customs Authorities has revealed that in the past also eight such Bills of Entry were filed by the same CHA on the directions of the detenu and the goods were cleared and handed over to the detenu. The Detaining Authority has issued the detention order after satisfying with the facts and circumstances of the case and material available on record.
(b) Ms. Pooja Batra, wife of Deepak Batra has filed Writ Petition (Crl.) No. 782 of 2008 before the High Court of Delhi for quashing the detention order bearing No. F.N.673/06/2007-CUS/VIII dated 5th December, 2007 issued by the Joint Secretary (COFEPOSA), Ministry of Finance, Department of Revenue under Section 3 of the COFEPOSA Act. Before the High Court, various contentions such as non-application of mind on the part of the Detaining Authority, consideration of irrelevant material, reliance on extraneous material, non-supply of relevant and relied on materials, delay in passing detention order and delay in disposal of representation etc were raised. The High Court, by the impugned order dated 05.09.2008, dismissed her writ petition. Questioning the same, she filed the present appeal by way of special leave petition.
4) Heard Mr. R.S. Sodhi, learned senior counsel for the appellant and Mrs. K. Amreshwari, learned senior counsel for the respondents.
5) Mr. R.S. Sodhi, learned senior counsel for the appellant after taking us through the grounds of detention order, impugned order of the High Court dismissing the writ petition of the appellant and all other connected materials contended that
(a) The detention order is liable to be quashed on the ground of non-application of mind and non-supply of materials relied on and acted upon by the Detaining Authority while passing the detention order.
(b) The Detaining Authority relied on extraneous and irrelevant materials.
(c) The offences alleged are not “smuggling” under the Customs Act, hence, there is no question of violation of any Act including the Customs Act, therefore,
detention under COFEPOSA Act is not sustainable.
(d) Delay in passing the detention order as well as in
disposal of the representation of the detenu.
6) On the other hand, Mrs. K. Amreshwari, learned senior counsel for the Union of India and their officials, by taking us through the grounds of detention and the counter affidavit filed by the Department, submitted that the detention order was passed on the basis of the relevant materials and after subjective satisfaction by the Detaining Authority. She further submitted that there is no illegality or violation of any of the statutory provision including that of Article 22(5) of the Constitution of India and prayed for dismissal of the appeal.
7) For convenience, first let us consider whether there is any delay in passing the detention order and delay in disposal of the representation. (a) Regarding delay in passing detention order, the alleged violation relates to Bill of Entry No. 589144 dated 25.04.2007, the detention order was passed on 05.12.2007. After the seizure of the goods from the container covered under Bill of Entry No. 589144 dated 25.04.2007, nobody appeared before the authorities to get the goods cleared till 23.07.2007. The detenu himself appeared before Customs Authorities for the first time on 03.08.2007. His statement under Section 108 of the Customs Act was recorded 6 and he was arrested on 04.08.2007. It was explained that in the light of the fact that earlier also similar eight consignments were got cleared by the detenu, the investigation relied on the statement of witness as if he is the actual owner of the proprietary concern, the statement of the clearing agent and his nominee were recorded and it was only on 29.10.2007 the sponsoring authority recommended to the COFEPOSA Department for consideration of the matter to pass detention order against the detenu. All those actions, various orders/proceedings were mentioned in seriatim both in the grounds of detention, and in the counter affidavit filed by the very same authority. We have carefully gone through the same and find no merit in the contention. On the other hand, we are satisfied that there is proximity to the alleged offence and the detention order. In our view, there was no undue delay so as to snap the link between the incident and the alleged potentiality of the detenu in indulging in smuggling activity. Hence, we reject the said contention. (b) Coming to the contention relating to delay in disposal of the representation, it is true that whenever a representation is made either by the representative of the detenu or by the detenu himself, it is incumbent on the part of the named authority to consider, dispose of the same and pass appropriate orders and communicate it without any unreasonable delay. However, it depends upon the facts and circumstances of each case. In the instant case, the detenu has taken the plea that he made a representation to the Secretary, Government of India as suggested in the detention order on 13.06.2008 which was received by the Suptd. of Jail on 16.06.2008, and on the very same day it was forwarded to COFEPOSA Department. It is the contention of the counsel for the appellant that though the representation was sent to the COFEPOSA Department on 16.06.2008 itself and the fact that the Jail and COFEPOSA Department both located in Delhi yet it took time for more than ten days to respond in obtaining the comments from the sponsoring authority and get the same disposed of which is fatal and accordingly the detention order deserves to be quashed. As against the said detention, in the counter affidavit, it is clarified that the representation was received by them on 20.06.2008. The specific assertion made in the counter affidavit has not been refuted by the detenu in his rejoinder. On the same day, i.e., 20.06.2008 itself, it was sent to the sponsoring authority, i.e. Customs Authority, who sent their comments on 27.6.2008. The comments on the said representation were sent to the COFEPOSA department on 27.06.2008, 28/29.06.2008 were holidays being Saturday and Sunday and on the next day i.e. 30.06.2008, the representation of the detenu was considered by the competent officer of the COFEPOSA department and the same was rejected. The rejection order was communicated to the detenu on 01.07.2008 and received by him on 02.07.2008. In the light of the details furnished in the counter affidavit, we do not find any substance in the contention and satisfy that there was any delay much more than the bare minimum time required to obtain the comments of the sponsoring authority accordingly, we reject the said
contention also.
8) Let us consider the main contention, namely, non-application of mind on the part of the Detaining Authority and consideration of extraneous and irrelevant materials. This issue covers all the rest of the contentions raised by the learned senior counsel for the appellant. Mr. R.S. Sodhi, learned senior counsel, submitted that though the detention order was passed on 05.12.2007 after seizure of the goods contained in Bill of Entry No. 589144 dated 25.04.2007, the Detaining Authority relying on the eight Bills of Entry/Consignments which related to earlier years and on the assumption that the detenu misused CHA and IEC passed the detention order. According to him, those eight consignments were cleared by the Customs authorities after proper verification, hence the same cannot be a subject matter for detaining the detenu under COFEPOSA Act. No doubt, Mrs. K. Amreshwari, learned senior counsel for the Department contended that except the goods seized from the container covered under Bill of Entry No. 589144 dated 25.04.2007, the authorities have not based reliance on any other instance. She also contended that even solitary instance is sufficient to clamp the detention order if the Detaining Authority is satisfied with the materials placed before it. There is no dispute that even for a solitary instance if sufficient materials are available and if the Detaining Authority is subjectively satisfied that the detenu is indulging in smuggling activities which is detrimental to the interest of the Department, the detention order can be clamped. However, perusal of the grounds of detention order dated 05.12.2007 as well as the counter affidavit sworn to by the Joint Secretary to the Govt. of India, Ministry of Finance, Department of Revenue dated 12.12.2008 amply demonstrate that the Detaining Authority has based its conclusion not only with reference to Bill of Entry No. 589144 dated 25.04.2007 but also relating to eight Bills of Entry/Consignments cleared earlier. The detention order, Annexure P-2, is available at page 97 of the paper book. In the order apart from narration of various materials as to the seizure of goods dated 25.04.2007 the Detaining Authority has adverted to and relied upon the clearance of eight consignments. In paragraph 18 of the detention order, there
is a specific reference to those facts which reads as under:
“M/s P.P. Datta, Wg. Cdr. (Retd.), the CHA vide their letter dated 9.9.2007 submitted photocopies of bills of entry No. 530534 dated 28.8.2006 No. 538152 dated 25.9.2006 No. 543052 dated 16.10.2006, No. 548191 dated 7.11.2006, No. 554135 dated 1.12.2006, No. 558417 dated 20.12.2006, No. 559159 dated 23.12.2006 and No. 562725 dated 9.1.2007 (total 8 (eight) bills of entry). It was observed that in all the said bills of entry the importers were M/s Om Prakash Deepak Kumar and the items imported were Hinges, Scrubber, Telescopic Channels from M/s Mount Overseas (HK) Ltd. and M/s PIT Industries (Hong Kong).”
The same particulars were reiterated in paragraph 22. In paragraph 23, it is stated that enquiries are being conducted at overseas to find out the description of goods declared at port of export, details of payment and the value declared at port of export in respect to the goods already stands cleared under the aforesaid eight Bills of Entry. In paragraph 26, Detaining Authority has asserted that the detention order was passed “after taking into consideration the foregoing facts and materials on record” and concluded that “satisfied that you ought to be detained under the COFEPOSA Act, 1974 with a view to preventing you from smuggling goods in future.” In paragraph 29, the Detaining Authority once again reiterated that the clearance of goods on the basis of eight Bills of Entry, and finally in paragraph 32, the Detaining Authority has concluded thus:
“While passing the detention order under the provisions of Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974, I have referred to and relied upon the documents mentioned in the enclosed list.” (Emphasis supplied)
“The enclosed list” mentioned in paragraph 32 is available as Annexure P-4 at page 143 of the paper book. S.No. 33 of Annexure P-4 specifically refers “Request for overseas inquiry in respect of eight consignments claimed to be cleared by M/s Om Prakash Deepak Kumar”. As rightly contended, paragraph 32, makes it clear that the Detaining Authority had not only referred to eight Bills of Entry but also relied upon those documents in respect of eight consignments. It is not in dispute that those eight Bills of Entry/consignments were cleared by M/s Om Prakash Deepak Kumar after verification and on the orders of the Department. Though, learned senior counsel for the Department submitted that out of eight consignments only five of the 10% of the checking of goods alone were verified by the Department, the fact remains that firstly nothing prevented the concerned officer from verifying the entire consignment as it was done in the case of Bill of Entry No. 589144 dated 25.04.2007 and secondly there was a valid order for clearance by the officer concerned. No doubt, the department is free to reopen the issue but the fact remains that on the date of passing the detention order it was only at the stage of notice and no final decision/conclusion was taken for violation of the provisions of the Customs Act. In such circumstances, reliance on those materials which is evident from paragraph 32 read with S.No. 33 of Annexure P-4 clearly demonstrate that Detaining Authority has considered irrelevant materials while formulating the grounds of detention. As pointed out above though the counsel for the respondents submitted that the Detaining Authority has considered only in respect of Bill of Entry No. 589144 dated 25.04.2007 for passing detention order, it is clear that apart from the reference in the detention order itself about the eight consignments, paragraph 5(1) of the counter affidavit clearly shows that the Detaining Authority had relied on eight Bills of Entry while arriving subjective satisfaction. Though, learned senior counsel for the respondents, in the course of arguments, submitted that whatever said in the counter affidavit may be eschewed, in view of the fact that the very same person who signed the detention order has also signed the counter affidavit before this Court, the contents therein cannot be lightly ignored as claimed. On the other hand, the details mentioned in the detention order as well as in the counter affidavit clearly demonstrate that in addition to the Bill of Entry dated 25.04.2007 the Detaining Authority heavily relied on eight Bill of Entries/consignments and satisfying that he will continue to indulge in smuggling activities which will be detrimental to the department passed the impugned detention order.

9) We have already pointed out that the authorities are free to reopen the case in respect of import of eight consignments/Bill of Entries which is said to have been taken place prior to the Bill of Entry dated 25.04.2007. However, even according to the department, those consignments were cleared under proper orders by the authority concerned. It is also not in dispute that on the date of the passing of the detention order the authorities have issued notice calling for certain details in respect of import of those eight consignments. In other words, the said issue has not 15 concluded and no adverse finding against him is passed on the date of the passing of the detention order. In such circumstances, we are of the view that ‘inconclusive state of investigation’ cannot legitimately help the authorities to pass an order of detention against the detenu on the perfunctory and inchoate material relied upon. It is useful to refer a decision of this Court in Chowdarapu Raghunandan vs. State of Tamil Nadu and others, 2002 (3) SCC 754. After finding that on the date of passing of the detention order investigation in respect of certain other alleged violations is still pending to ascertain the involvement and role of persons concerned and noting that apart from the absence of any positive or concrete materials to connect the baggage in question with the petitioner therein, the nature of stand disclosed in counter affidavit filed on behalf of the first respondent does not really help the authority to prove that the said material and such vitally relevant aspect was either adverted to or really considered before passing the order of detention and taking note of the fact that the detention order suffers the vice of the total non-application of mind to a relevant and vital material touching question of the culpability as well as the necessity to order the detention of the petitioner, quashed the same and allowed the writ petition. It is settled law that Courts exercising powers of judicial review do not consider the challenge to an order of detention as if on an appeal, re-appreciating the materials, yet since an order of detention in prison involves the fundamental rights of citizens, freedom of movement and pursuit of normal life and liberty, no absolute immunity can be claimed by the authorities as to the decision arrived and it is open to the Courts to see whether there has been due and proper application of mind and that all the relevant and vital materials for the purpose have been noticed, adverted to and considered. If we consider the case on hand on the above principles, though, the Detaining Authority has relied on the import of eight consignments, the fact remains that the goods were cleared after passing appropriate orders by the authorities and any event on the date of passing of detention order it was at the stage of notice calling for reopening the issue hence the same cannot be a valid material for passing an order of detention against the detenu. In fact, while determining the subjective satisfaction the Detaining Authority had said that enquiries are pending on all those documents placed on record and relied upon by them. Use of incomplete material which is either pending or inconclusive cannot be a basis for detention order. In the recent judgment Kothari Filaments & Anr. vs. Commissioner of Customs (Port), Kolkata and Ors. JT 2009 (1) SC 516, this Court has held that if any enquiry is inconclusive pending consideration the same cannot be the basis for passing an order against the person concerned. Therefore, the eight consignments/Bill of Entries relied upon by the Detaining Authority become irrelevant and conclusion on extraneous material cannot be sustained.

10) Learned senior counsel for the appellant has also pointed out that all the materials which were relied on and actually considered in the grounds of detention have not been supplied to detenu. We have already pointed out that both in the grounds of detention as well as counter affidavit filed in support of the said order the Detaining Authority has reiterated all those documents including the import of eight consignments were relied on in more than one place while passing the order of detention. In fact, the Detaining Authority has adverted to the statement of Deepak Kumar and mentioned that he had seen his signature in his statement recorded on 03.08.2007 as well as on letter dated 02.08.2007 and agreed that signature of Deepak Kumar on the declaration and authorization letter do not tally with his signature on the statement dated 03.08.2007 and letter dated 02.08.2007 and concluded that both the formats do not tally.

11) It is also relevant to refer the definition of “smuggling” in Section 2(39) of the Customs Act, 1962 which reads as under:
“”smuggling”, in relation to any goods, means any act or omission which will render such goods liable to confiscation under section 111 or section 113;”
Section 111 of the Customs Act, 1962 deals with confiscation
of improperly imported goods which reads as thus:-“111. Confiscation of improperly imported goods, etc.— The following goods brought from a place outside India shall be liable to confiscation:–
(a) any goods imported by sea or air which are unloaded or attempted to be unloaded at any place other than a customs port or customs airport appointed under clause (a) of section 7 for the unloading of such goods;
(b) any goods imported by land or inland water through any route other than a route specified in a notification issued under clause (c) of section 7 for the import of such goods;
(c) any dutiable or prohibited goods brought into any bay, gulf, creek or tidal river for the purpose of being landed at a place other than a customs port;
(d) any goods which are imported or attempted to be imported or are brought within the Indian customs waters for the purpose of being imported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force;
(e) any dutiable or prohibited goods found concealed in any manner in any conveyance;
(f) any dutiable or prohibited goods required to be mentioned under the regulations in an import manifest or import report which are not so mentioned;
(g) any dutiable or prohibited goods which are unloaded form a conveyance in contravention of the provisions of section 32, other than goods inadvertently unloaded but included in the record kept under sub-section (2) of section 45;
(h) any dutiable or prohibited goods unloaded or attempted to be unloaded in contravention of the provisions of section 33 or section 34;
(i) any dutiable or prohibited goods found concealed in any manner in any package either before or after the unloading thereof;
(j) any dutiable or prohibited goods removed or attempted to be removed from a customs area or a warehouse without the permission of the proper officer or contrary to the terms of such permission;
(k) any dutiable or prohibited goods imported by land in respect of which the order permitting clearance of the goods required to be produced under section 109 is not produced or which do not correspond in any material particular with the specification contained therein;
(l) any dutiable or prohibited goods which are not included or are in excess of those included in the entry made under this Act, or in the case of baggage in the declaration made under section 77;
(m) any goods which do not correspond in respect of value or in any other particular with the entry made under this Act or in the case of baggage with the declaration made under section 77 in respect thereof or in the case of goods under transshipment, with the declaration for transshipment referred to in the proviso to sub-section (1) of section 54;
(n) any dutiable or prohibited goods transited with or without transshipment or attempted to be so transited in contravention of the provisions of Chapter VIII;
(o) any goods exempted, subject to any condition, from duty or any prohibition in respect of the import thereof under this Act or any other law for the time being in force, in respect of which the condition is not observed unless the non-observance of the condition was sanctioned by the proper officer;
(p) any notified goods in relation to which any provisions of Chapter IVA or of any rule made under this Act for carrying out the purposes of that Chapter have been contravened.”
This Section refers to goods brought from a place outside India shall be liable to confiscation. Unless there is proper enquiry and arrive at a conclusion in terms of Section 111 or Section 113 it cannot be concluded that smuggling had taken place. There is nothing in the order of detention which would indicate that any of the said earlier imports were effected in contravention of any of the provisions of the Customs act, 1962, or that they could have been regarded as having been smuggled into the country within the meaning of Section 2(39) of the said Act. Except notice for reopening the order clearing eight consignments prior to Bills of Entry dated 25.04.2007, there is no adjudication and final order by the authority concerned. In other words, the reference to alleged violation of the Customs Act in respect of import of eight consignments which was only at the pre-mature stage and considering extraneous materials, which are inconclusive cannot be a
valid ground for clamping detention under COFEPOSA Act. Inasmuch as, the Detaining Authority has extensively relied upon the allegations that the detenu was involved in the import of eight consignments through M/s P.P. Dutta, reliance on those irrelevant material vitiates the detention order. This is more so as the said alleged earlier imports, apparently constitute the main basis for the opinion formed by the Detaining Authority that the detenu had the propensity and potentiality to indulge in smuggling activities in future.
12) As already discussed, even based on one incident the
Detaining Authority is free to take appropriate action including detaining him under COFEPOSA Act. The Detaining Authority has referred to the violation in respect of importable goods covered under Bill of Entry No. 589144 dated 25.04.2007. In an appropriate case, an inference could legitimately be drawn even from a single incident of smuggling that the person may indulge in smuggling activities, however, for that purpose antecedents and nature of the activities already carried out by a person are required to be taken into consideration for reaching justifiable satisfaction that the person was engaged in smuggling and that with a view to prevent, it was necessary to detain him. If there is no adequate material for arriving at such a conclusion based on solitary incident the Court is required and is bound to protect him in view of the personal liberty which is guaranteed under the Constitution of India. Further subjective satisfaction of the authority under the law is not absolute and should not be unreasonable. In the matter of preventive detention, what is required to be seen is that it could reasonably be said to indicate any organized act or manifestation of organized activity or give room for an inference that the detenu would continue to indulge in similar prejudicial activity warranting or necessitating the detention of the person to ensure that he does not repeat this activity in future. In other words, while a single act of smuggling can also constitute the basis for issuing an order of detention under the COFEPOSA Act, highest standards of proof are required to exist. In the absence of any specific and authenticated material to indicate that he had the propensity and potentiality to continue to indulge in such activities in future, the mere fact that on one occasion person smuggled goods into the country would not constitute a legitimate basis for detaining him under the COFEPOSA Act. This can be gathered from the past or future activities of the said person. In the case on hand, we have already pointed out that there were no such past activities as could lead to a reasonable conclusion that he possesses the propensity or the potentiality to indulge in smuggling activities in future, to prevent which it is necessary to detain him. At present there is nothing in the order of detention which would indicate that any of the said earlier imports was effective in contravention of any of the provisions of the Customs Act, 1962 or that they could have been regarded as having been smuggled into the country within the meaning of Section 2(39) of the said Act. In such a case, as held by this Court in Chowdarapu Raghunandan (supra), the invocation of the COFEPOSA Act against such a person would not be justified.
13) Apart from these aspects, it is unfortunate that the High Court while considering the Habeas Corpus writ petition filed under Article 226 of the Constitution of India by the wife of the detenu challenging the order of detention on various grounds, on going through the materials of the department as if as an Appellate Court relying on Section 482 Code of Criminal Procedure directed the Commissioner of Customs, ICD, Tughlakabad, to lodge a report with the police station, Tughlakabad within a period of 15 days along with the complete set of relevant documents to enable them to register a case under Sections 199, 420, 468 and 471 of the Indian Penal Code against the detenu. The said direction is not warranted considering the fact that issue before the High Court was about the validity of the detention order and the curtailment of the personal liberty of the detenu and nothing more. We are of the view that the High court is not justified in issuing such direction and awarding exemplary cost of Rs. 50,000/- payable to the sponsoring authority.
14) In the light of the above discussion and for the reasons stated above the impugned order of the High Court dated 05.09.2008 in W.P. (Crl.) 782/2008 is set aside, consequently the detention order bearing F.N. No. 673/06/07-CUS/VIII dated 05.12.2007 issued by Joint Secretary (COFEPOSA), Ministry of Finance, Department of Revenue is quashed. The detenu-husband of the appellant viz., Deepak Kumar @ Deepak Batra is ordered to set at liberty forthwith if he is not required in any other case.

Appeal is allowed.

….…….…….……………………J.
(DALVEER BHANDARI)
……………………………………J.
(P. SATHASIVAM)
New Delhi; March 27, 2009.

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  3. Great initiative.

  4. Ganesh Naik orders the rehabilitation of street vendors.
    Labour and Enviornment Minsiter Ganesh Naik has ordered the proper rehabilitation of an estimation of an estimated hawkers who have been displaced by the ongoing work of Sanpada-Palm Beach Flyover.
    Among those who have lost theirs means of livelihood were vegetable vendors and some women’s self help groups. On 10 January, they went with their grievances to labour minister Ganesh Naik immediately directed NMMC that the affected persons be provided with a suitable plot where they can continue their businesses.
    “They should be rehabilitated in the same manner as the Project Affected Persons (PAPs),” the minister told the NMMC officials present on the spot.

  5. Sanjeev Naik -“five mantras”
    On April 23, Sanjeev Naik “unveiled” his “five mantras” for the constituency’s rapid development which is:
    1) Solving water crisis – by bringing the excess water from Morbe Dam to Thane in future to fulfill water requirement.
    2) Healthy living – by replicating his success in getting the Cleanest City Award for Navi Mumbai to Thane and Mira-Bhayander as well.
    3) Solving traffic problems – by starting sea transport and mono rail in the constituency which will not save time but also reduce the traffic on raod and help to develop reliable and low cost transportation in the region.
    4) Pollution Control – by installing sewerage treatment plants in the constituency and plant more trees to protect the environment.
    5) Rehabilitation of slums – through SRA similar to Mumbai’s Dharavi slum redevelopment and making the dream come true of the slum dwellers to own a house in a building.

  6. Dr.Sanjeev Naik, who became mayor of Navi Mumbai , has proved his ability to work for the welfare of the masses.
    While there has been a drastic geographical change in the erstwhile PARLIAMENTARY CONSTITUENCY due to delimitation, the width of one of the new and resultant constituencies has not changes much. That means a candidate for a single constituency, such as Thane-Belapur, will have to represent an area right from Navi Mumbai to Thane,Bhayander and Uttan, as one of the major developing areas.
    The interests of the people in this constituency are as varied as are the locations. Navi Mumbai has outgrown the initial expectations of the Government and CIDCO and has become a real city in readiness for the crown in the 21st Century.
    There should be a contact office and the smallest of the small complaints should reach the elected representative. He should understand the aspirations of the common people in his constituency and should have viable solutions to their genuine problems.
    This is Irrespective of the fact that he happens to be the son of the Maharashtra Minister and NCP heavyweight Mr. Ganesh Naik.

  7. Dr.Sanjeev Naik, who became mayor of Navi Mumbai , has proved his ability to work for the welfare of the masses.
    While there has been a drastic geographical change in the erstwhile PARLIAMENTARY CONSTITUENCY due to delimitation, the width of one of the new and resultant constituencies has not changes much. That means a candidate for a single constituency, such as Thane-Belapur, will have to represent an area right from Navi Mumbai to Thane,Bhayander and Uttan, as one of the major developing areas.
    The interests of the people in this constituency are as varied as are the locations. Navi Mumbai has outgrown the initial expectations of the Government and CIDCO and has become a real city in readiness for the crown in the 21st Century.
    There should be a contact office and the smallest of the small complaints should reach the elected representative. He should understand the aspirations of the common people in his constituency and should have viable solutions to their genuine problems.

  8. Sandeep Naik on New Bombay plus connect 12.
    As part of our ‘Reader connect’ initiative, we have started new column wherein you can Email us all your Grievances (related to civic issues) and we shall forward the same to the chairman of the standing committee of NMMC, Sandeep Naik. He will then personally look into the matter and shall take appropriate action. We shall publish your grievance and the action taken by him, ensuring full transparency every week. Last week we got several mails from our readers and we forwarded some of them to him. HERE is the response and action taken by him.

  9. Environment and lab our Minister Ganesh Naik orders the rehabilitation of street vendors.
    Labour and Enviornment Minsiter Ganesh Naik has ordered the proper rehabilitation of an estimation of an estimated hawkers who have been displaced by the ongoing work of Sanpada-Palm Beach Flyover.
    Among those who have lost theirs means of livelihood were vegetable vendors and some women’s self help groups. On 10 January, they went with their grievances to labour minister Ganesh Naik immediately directed NMMC that the affected persons be provided with a suitable plot where they can continue their businesses.
    “They should be rehabilitated in the same manner as the Project Affected Persons (PAPs),” the minister told the NMMC officials present on the spot.

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