Case BriefsHigh Courts

Bombay High Court: The Division Bench of Ujjal Bhuyan and Abhay Ahuja, JJ., gave a splitting verdict on the constitutionality of Sections 13(8)(b) and 8(2) of the Integrated Goods and Services Tax Act, 2017.

The petitioner, who was engaged in providing marketing and promotional services to customers located outside India had challenged the validity of Sections 13(8)(b) and 8(2) of the Integrated Goods and Services Tax (IGST) Act, 2017 contending that these provisions were ultra vires Articles 14, 19, 245, 246, 246A, 269A and 286 of the Constitution and also ultra vires the provisions of the Central Goods and Services Tax  (CGST) Act, 2017, IGST Act, 2017 and Maharashtra Goods and Services Tax (MGST) Act, 2017. The case of the petitioner was that he is a proprietor of a proprietorship firm  Dynatex International having its registered office in Mumbai which was engaged in providing marketing and promotion services to customers located outside India. It was registered as a supplier under the provisions of the CGST Act, 2017.

Grounds for Challenge

  1. The petitioner contended that Section 13(8)(b) of the IGST Act seeks to levy GST on services provided to, used and consumed by recipients located outside India and treating the same as intra-state supply leviable to CGST and MGST which is not only illegal, void, arbitrary and unreasonable but also ultra vires Articles 14, 19(1)(g), 21, 286, 246A, 265, 269A and 300A of the Constitution Section 9 of the CGST Act and the MGST Act.
  2. Though all service providers like the petitioner should be treated in the same manner, service providers like marketing agents, marketing consultants, professional advisers etc. provide similar services. But by virtue of the exception carved out under section 13(8)(b) of the IGST Act, the service rendered by the petitioner despite satisfying all the conditions of section 13(2) read with section 2(6) of the IGST Act would be subject to GST. Therefore, the levy was most unreasonable and arbitrary, thus violative of Article 14.
  3. Article 269A only grants power to the Parliament to frame laws for interstate trade and commerce i.e., for determining inter-state trade or commerce. It does not permit imposition of tax on export of services out of the territory of India by treating the same as a local supply. Hence, section 13(8)(b) of the IGST Act was ultra vires Articles 246A and 269A of the Constitution.
  4. That Article 286(1) provides that no law of a state shall impose or authorize the imposition of a tax on the supply of goods or services or both where such supply takes place outside the state or in the course of import of the goods or services or both into the territory of India or export of goods or services out of the territory of India. Thus no state has authority to levy local tax on export of services. Section 13(8)(b) of the IGST Act had deemed an export to be a local supply. This was violation of Article 286(1).
  5. That section 13(8)(b) of the IGST Act leads to double taxation and more as the same supply would be taxed at the hands of the petitioner and following the destination based principle it would be an import of service from India for the foreign service recipient and would be taxed at his hands in the importing country.

Analysis by the Court

In All India Federation of Tax Practitioners, it was held that service tax is a VAT which in turn is a destination based consumption tax in the sense that it is on commercial activities. It is not a charge on the business but on the consumer and it would logically be leviable only on services provided within the country. Similarly, in Commissioner of Service Tax Vs. SGS India Pvt. Ltd., 2014 (34) STR 554 (Bom.), the High Court had held that if services were rendered to such foreign clients located abroad then such an act can be termed as ‘export of service’ which act does not invite a service tax liability.

Section 13 of the IGST Act deals with place of supply of services where location of supplier or location of recipient is outside India. However, as per the proviso, where the location of the recipient of services is not available in the ordinary course of business, the place of supply shall be the location of the supplier of services. Thus sub-section (2) lays down the general proposition that place of supply of services shall be the location of the recipient of services barring the exceptions carved out in sub-sections (3) to (13). Thus what sub-section (8)(b) says is that in case of supply of services by intermediary the place of supply shall be the location of the supplier of services i.e., the intermediary which is an exception to the general rule as expressed in sub-section (2) of section 13.

The Bench explained, while Article 246A deals with special provision with respect to GST, Article 269A provides for levy and collection of GST in the course of inter-state trade or commerce. Therefore,

“A conjoint reading of the two Articles would show that the Constitution has only empowered Parliament to frame law for levy and collection of GST in the course of inter-state trade or commerce, besides laying down principles for determining place of supply and when such supply of goods or services or both takes place in the course of inter-state trade or commerce. Thus the Constitution did not empower imposition of tax on export of services out of the territory of India by treating the same as a local supply.”

Further, Article 286 lays down restrictions as to imposition of tax on the sale or purchase of goods. Similarly, Article 286(1) imposes an expressed bar that no law of a state shall impose or authorize imposition of a tax on the supply of goods or services or both where such supply takes place in the course of import into or export out of the territory of India. The Bench expressed, though Article 286(2) empowers the Parliament to make laws formulating principles for determining supply of goods or of services or both certainly the same could not be used to foil or thwart the scheme of clause (1).

Noticeably, the petitioner fulfilled the requirement of an intermediary as defined in Section 2(13) of the IGST Act, and all the conditions stipulated in sub-section (6) of Section 2 for a supply of service to be construed as export of service were complied with. The overseas foreign customer of the petitioner fell within the definition of ‘recipient of supply’ in terms of section 2(93) of the CGST Act read with Section 2(14) of the IGST Act. Therefore, it was an ‘export of service’ as defined under section 2(6) of the IGST Act read with Section 13(2) thereof. Hence, Justice Ujjal Bhuyan opined,

“Evidently and there is no dispute that the supply takes place outside the State of Maharashtra and outside India in the course of export. However, what we notice is that section 13(8)(b) of the IGST Act read with section 8(2) of the said Act has created a fiction deeming export of service by an intermediary to be a local supply i.e., an inter-state supply. This is definitely an artificial device created to overcome a constitutional embargo.”

In State of Travancore – Cochin Constitution Bench of the Supreme Court referred to Article 286(1) and held that whatever else may or may not fall within Article 286(1)(b), sales and purchases which themselves occasion the export or the import of the goods, as the case may be, out of or into the territory of India would come within the exemption. Reliance was placed on GVK Industries Ltd., wherein the Supreme Court had held that the Parliament is constitutionally restricted from enacting extra-territorial legislation but such restriction should be made subject to certain exigencies, such as, it should have a real connection to India which should not be illusory or fanciful.

Similarly, in Electronics Corporation of India Limited v. Commissioner of Income Tax, 1989 Supp (2) SCC 642 , it was held that unless a nexus with something in India exists, Parliament would have no competence to make the law. Article 245(1) empowers Parliament to enact law for the whole or any part of the territory of India. The provocation for the law must be found within India itself. Such a law may have extra-territorial operation in order to subserve the object and that object must be related to something in India. It is inconceivable that a law should be made by Parliament in India which has no relationship with anything in India.

Thus, the Bench held that it was apparent that Section 9 of the CGST Act cannot be invoked to levy tax on cross-border transactions i.e., export of services. Likewise from the scheme of the IGST Act, it is evident that the same provides for levy of IGST on inter-state supplies. Import and export of services have been treated as inter-state supplies in terms of Section 7(1) and Section 7(5) of the IGST Act. On the other hand sub-section (2) of Section 8 of the IGST Act provides that where location of the supplier and place of supply of service is in the same state or union territory, the said supply shall be treated as intra-state supply. However, the Bench remarked,

“By artificially creating a deeming provision in the form of Section 13(8)(b) of the IGST Act, where the location of the recipient of service provided by an intermediary is outside India, the place of supply has been treated as the location of the supplier i.e., in India. This runs contrary to the scheme of the CGST Act as well as the IGST Act besides being beyond the charging sections of both the Acts.”

In the light of the above, Ujjal Bhuyan, J., held that Section 13(8)(b) of the IGST Act, 2017 was ultra vires the said Act besides being unconstitutional. However, Abhay Ahuja, J., stated that he was unable to share the opinion of Justice Ujjal Bhuyan and directed to list the matter on 16-06-2021 to express his opinion.[Dharmendra M. Jani v. Union of India, WP No.2031 of 2018, decided on 09-06-2021]


Kamini Sharma, Editorial Assistant has reported this brief


Appearance before the Court by:

Counsel for the Petitioner: Adv. Bharat Raichandani a/w. Adv. Pragya Koolwal Counsel for Union of India: ASG Anil C. Singh a/w. Sr. Adv. Pradeep S. Jetly
Counsel for Respondent 1 to 4: Adv. J. B. Mishra
Counsel for State of Maharashtra: AGP S.G. Gore

Case BriefsHigh Courts

Bombay High Court: Dama Seshadri Naidu, J., in a suit for specific performance, observed that:

“..in a suit for specific performance, a third party’s assertion that he has a stake in the subject matter of the suit counts to noting (sic). What matters is the contract, not the property covered by the contract. “

Background

‘A’ engaged in a contract with B for purchasing some property and B defaulted. Later, C the brother of A, represented A as his power of attorney agent (POA) and after a few years, A discharged C from being his POA and pursued the case independently and got a decree – not for specific performance but for the return of money.

Now an objection arose when A wanted to withdraw the deposited decretal amount and the objection was raised by C.

The ground for objection was that C wanted a part of the decretal amount since he too had contributed to the sale consideration.

Question for Consideration

Can C’s claim be countenanced? Is such an ‘intervention application’ maintainable?

Discussion

Code of Civil Procedure must be interpreted in a manner to subserve and advance the cause of justice. 

— C.K. Thakker’ s Code of Civil Procedure, Vol. 1, EBC, p. 200 (EBC Reader) 

Bench noted that in the present matter, firstly, there was no lis before the Court for it to entertain an interlocutory application. Thus, Court was proverbially functus officio. 

Adding to the above, Court stated that C wanted the Court to revive and resurrect a disposed of suit and to do that the Court must set aside the decree that was already passed.

But the question was, can the Court do so?

To the above, the answer was Court cannot. Further, it was elaborated that “A decree can be set aside under Order 9 Rule 13 CPC. In the Supreme Court decision of Ram Prakash Agarwal v. Gopi Krishna, (2013) 11 SCC 296, it was held that the applicant must have been a party to the suit, in the first place, whereas Supreme Court in Raj Kumar v. Sardari Lal, (2004) 2 SCC 601, took a different view and stated that the same was in the context of a lis pendens purchaser.

Bench coming back to the present matter, expressed that:

Subhash has a highway or a thoroughfare to travel on if ever he wants to reach his judicial destination: a separate suit, seeking a declaration.

Looking at the issue from another perspective, Court stated that in a suit for specific performance, whatever be its outcome, no third party can have the role to play.

Precedential Position

Ajay Kumar v. Tulsabai, 1973 SCC OnLine Bom 4, Court held that by very nature, a suit for specific performance confines itself to the agreement and several please that can either defeat or lead to its enforcement. The cause of action in such a suit is the agreement and its enforceability.

In the above-cited case, Court posed a question unto itself: Can it really be said that the stranger to an agreement is concerned with the relief sought by the plaintiff or the defences raised against such specific performance? The answer was that, firstly the stranger not being a party to the suit, any decision in that suit does not affect him. Secondly, the Court is being called upon to enforce the agreement but not to settle any disputes between the plaintiff and the stranger, therefore such a person’s presence is not necessary for the Court to decide the controversy of the suit.

In Panne Khushali v. Jeewanlal Mathoo Khatik,  AIR 1976 MP 148,  a Full Bench of the High Court of Madhya Pradesh has held that strangers to the contract making a claim adverse to the title of the defendant—for example, that they are the co-owners of the contracted property—are neither necessary nor proper parties. So they are not entitled to be joined as parties to the suit.

Delhi High Court in its decision of Raj K. Mehra v. Anjali Bhaduri, 1981 SCC OnLine Del 105, echoed the same view as above.

Analysis, Law and Decision

In view of the above, Court proceeded to examine the issue:

(1) The agreement was between Rajesh and Sudarshan.

(2) From the very inception, Subhash represented Rajesh as his POA in the suit; thus, he knew his brother’s pleadings and assertions to the exclusion of everyone else.

(3) Despite that, Subhash never objected to his principal’s (Rajesh’s) contentions.

(4) Though Rajesh, as the principal, cancelled GPA in 2017, Subhash never attempted, if ever permissible, to come on record as a defendant to protect his independent interest, if any.

(5) The suit was eventually decreed in 2001.

(6) Sudarshan willingly suffered the decree and deposited the amount to be appropriated by Rajesh alone.

Collateral Issue:

Subhash insisted that this Court in its Order dated 16-04-2012 noted that Subhas, too, contributed to the sale consideration.

To the above contention Bench stated that to facilitate adjudication of the matter, the Court undertakes various steps and during that process, Court prima facie observe or record certain aspects based on the counsel’s representation but the same does not acknowledge the parties existing rights if any, but they do not create rights on their own.

A Court’s observation cannot give rise to a right unless it has already existed, nor does it provide a cause of action. Here, in this case, it had never been in the Court’s contemplation as to who contributed the sale consideration. It is a non sequitur.

Concluding the matter, Court held that however strong a person’s right to recovery may be, he cannot file an intervention application in an already disposed of matter and stay the execution of the decree or nullify the decree without proper judicial recourse.

In view of the above discussion, Court dismissed the application. [Rajesh Saichand Sharma v. Sudershan Gangaram Rajula, Interim Application (L) No. 11624 of 2021, decided on 11-06-2021]


Advocates before the Court:

Mr. Sanjiv Sawant a/w Mr. Abhishek P. Deshmukh – Advocate for the Applicant.

Sukeshi Bhandari a/w Akshay Chauhan – Advocate for the Defendants.

Mr. Chandrakant N. Chavan a/w Mr. Rajesh Sharma – Advocate for Plaintiff.

Case BriefsHigh Courts

Bombay High Court: Sandeep K. Shinde, J., granted anticipatory bail to a constable accused of rape and other offences as detailed below.

Instant anticipatory bail application was filed in crime registered under Sections 376(2)(n), 354(5), 417, 419, 427, 504, 506(2), 502 of the Penal Code, 1860 read with Section 66(C) of the Information Technology Act, 2000.

Applicant was attached to constabulary cadre of the Maharashtra Police and was serving at the traffic Department, Malabar Hill, Mumbai.

Complainant developed a close friendship with the applicant after being deployed and the same took the form of a love affair. Later, the complainant alleged that the applicant had suppressed his marital status.

Though the complainant alleged, the applicant had informed her, his wife was psychologically unwell and hence he desired to divorce his wife. Further, in the year 2018, the applicant borrowed money from the complainant from time to time and when she demanded her own money from him, he abused her.

Applicant on the false promise of marriage persuaded the complainant to succumb to physical desires at various places and hotels.

It was also alleged that the applicant had recorded her obscene videos and was threatening to upload the same on social media and disseminate the same to her relatives if she refused to maintain the relationship with him.

Applicant damaged the complainant’s cell phone to cause disappearance of the evidence.

After such incidents, complainant disclosed everything to applicant’s wife. She also added that her proposed marriage broke down, since the applicant sent some objectionable messages to the sister of her fiancé.

Decision

Bench stated that on taking into consideration the facts of the case, prima facie opined that since he has been suspended from service and is available for investigation, a case for granting interim-pre-arrest protection was made.

High Court directed the investigating officer to place the reports for further consideration on 19-07-2021.

Lastly, the Court added that the applicant shall join the investigation as and when called and shall not contact the complainant or influence prosecution witnesses. [Madhav Krishna Vasave v. State of Maharashtra, Ant. Bail Application No. 1217 of 2021, decided on 4-06-2021]


Advocates before the Court:

Mr. S.R. Nargolkar i/by Shri Arjun Kadam for the Applicant.

Ms. P.P.Shinde, APP for the Respondent-State.

Mr. Shrikant S. Rathi for the Complainant/Intervenor.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of S.S. Shinde and Abhay Ahuja, JJ., reiterated the observation of Supreme Court in Gian Singh v. State of Punjab, (2012) 10 SCC 303, while quashing an FIR registered for offences under Sections 498(A), 406, 504, 323, 34 of the Penal Code and Sections 3, 4 of the Dowry Prohibition Act, on the ground of matter being resolved amicably.

Factual Matrix

Due to differences between the husband and wife, they sought a divorce and a petition was filed before the Family Court, Bandra which was later converted into mutual consent divorce petition under Section 13-B of the Hindu Marriage Act, 1955.

High Court stated that considering the fact that a matrimonial dispute which sought to be amicably resolved, the Court deemed it appropriate to seek guidance from the Supreme Court decision in Gian Singh v. State of Punjab, (2012) 10 SCC 303, wherein it was observed that:

“…the criminal cases having overwhelmingly and pre-dominatingly civil favour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affrmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.”

Bench added that the present matter involved offences arising out of matrimony and was basically private in nature and the parties sought to resolve their entire dispute and due to the compromise between them, the possibility of conviction would be remote and bleak and continuation of criminal case would lead to great prejudice or injustice.

Therefore, in view of the above discussion, petition was allowed while allowing the below prayer clause:

“a. That this Hon’ble Court be pleased to quash and set aside the FIR No.256 of 2019, registered by Vikhroli Police Station at Mumbai, under Sections 498(A), 406, 504, 323, 34 of Indian Penal Code, and 3, 4 of Dowry Prohibition Act dated 19.06.2019 and Criminal Case No.959/PW/2020 and pending before Ld. 31st Metropolitan Magistrate’s Court at Vikhroli, Mumbai, and further be pleased to discharge the Petitioners from C.C. No.256 of 2019 under Sections 498(A), 406, 504, 323, 34 of Indian Penal Code, and 3, 4 of Dowry Prohibition Act.” 

Petition was disposed of in the above terms. [Yuvraj Raman Jadhav v. State of Maharashtra, 2021 SCC OnLine Bom 780, decided on 1-06-2021]


Advocates before the Court:

Ms. Anushka Shreshtha for the Petitioners.

Mr.J.P. Yagnik, APP for the Respondent-State.

Mr. Jayesh Bhosle for Respondent No.2.

Mr. Yuvraj R. Jadhav – Petitioner No.1 present through V.C.

Mrs. Madhuri Jadhav (maiden name–Madhuri Sawant)-Respondent No.2 present through V.C.

Case BriefsCOVID 19High Courts

Bombay High Court: The Division Bench of Sunil B. Shukre & Avinash G. Gharote, JJ. addressed various Mucormycosis related issues prevalent in Maharashtra.  The Bench warned,

“This is a sort of war like situation for Maharashtra and in particular city of Nagpur, which calls for rapid response and mighty one. We hope that these entreaties would be positively answered by the Central Government and if not, further loss of lives of a few more patients, unfortunate as it may be, may be a fait accompli.”

The Indian Medical Association (IMA) had submitted a report before the Court pertaining to prevalence and spread of fungal infections. It not only highlighted types of fungal infections but also the causes, symptoms, precautions, which the Bench opined that if considered seriously and implemented by all the hospitals presently treating the Covid patients and also patients with fungal infections, there will be a considerable reduction in prevalence and spread of the fungal infections.

Shortage of Drugs

Noticing that raw materials used for manufacturing drugs to cure Mucormycosis which are Amphotericin B (Lipid Complex) and Amphotericin (Liposomal) are imported for their bigger part, the Bench stated that the State Government, as well as the Central Government, need to take the issue of shortage of drugs available for treating the fungal infections seriously. The Bench reminded the governments,

“After all, such invaders; fungii are the invaders; require speedy action and they do not wait for anybody to respond to them. It’s not the case that once they raid a house i.e. body of the patient, they would lie dormant and wait for the house owner to make his preparations and then have a word or duel of resistance with them. The response to be given in such situations is akin to a response given in a war like situation.”

Believing that unless quick action is taken, destruction is inevitable, the Bench directed the Central and the State Government to take immediate steps for increasing the production capacity of Indian manufacturers involved in producing these drugs and if needed, press the entire State machinery into service for increasing of the production capacity.

Reportedly, number of patients suffering from Mucormycosis in Nagpur alone was 1584 on 29-05-2021 and out of these patients 830 patients had been operated on.  The data further showed that out of 1584 patients, eye exenteration had taken place in 74 cases and so far 69 patients had succumbed to Mucormycosis. The Bench expressed alarm over the situation and remarked that in Nagpur city the situation is no longer a rare fungal infection, that it has already assumed a form of an epidemic. Therefore, the Bench reiterated that the Central Government and State Government, and additionally, Indian Society in general need start taking effective measures for restricting the spread of fungal infections. These measures would be of maintaining of individual cleanliness and hygiene through improvement of immunity levels by remaining on good diet and also keeping contributing ailments like Hyperglycemia, diabetes and the like under control to making available in sufficient quantities drugs required for treating these infections.

Deficit Allocation of Drugs to Maharashtra

Raising concerns on inefficient method of drug allocations, the Bench expressed concerns that the State of Maharashtra and in particular city of Nagpur having very high prevalence of Mucormycosis infection remain in crying state for Amphotericin B and the patients were not getting enough number of vials per day for the treatment because of deficit allocation and short supply to State of Maharashtra; due to which many patients had lost organs of their body while others had even lost their eyes and a sizable number of patients were dead. Hence, the Bench reiterated that the situation could be improved by sensible allocation of Amphotericin B to the State of Maharashtra.

“But, the steps that it (Central Government) had to take or it must take, considering the fundamental duty of the State and also the concept of welfare State in the Directive Principles of State Policy, its response appears to be not on the expected lines.”

Import of Raw Material

Some public spirited importers from Nagpur who had forward to extend their helping hands had highlighted their problem in importing of the raw-material required for manufacturing of the required drugs. Noticing that major hurdles that these interested importers were facing were in respect of the delay occurring at the level of Drugs Controller General of India (DCGI) in granting registration to the private players, the Bench directed the Central government to actively consider the suggestion of interested importers that procedure for obtaining registration of DCGI for making import of the drugs or raw material should be done away with atleast during the pandemic and the Authority to grant permission for import of the drugs and/or raw material for drugs be delegated to the Food and Drugs Administration of individual States.

In the backdrop of above, the Bench directed the Divisional Commissioner, Collector and Commission of Nagpur to extend all the help to make available the requisite man power and paraphernalia for increasing the check-ups and survey of all the hospitals in Nagpur city in order to find out any deficiency, lacunae, and other incidental factors which contribute to spread of fungal infections. The State government was also directed to invoke relevant provisions of Section 136, Companies Act, 2013 for dealing with erring companies which are unwilling, defaulting and non-responsive regarding their CSR and are reluctant to make contributions at this hour of need.[Court on its own motion v. Union of India, 2021 SCC OnLine Bom 790, order dated 02-06-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

Amicus Curiae: S.P.Bhandarkar

For Union of India: ASGI U.M.Aurangabadkar with Adv.Santok Singh Sokhi and Adv. Deshmukh
For Respondents: GP. Ketki Joshi Addl. GP D.P. Thakare and AGP N.S. Rao

For Respondent 4 and 10: Adv. S.M.Puranik and Adv. B.G.Kulkarni, respectively

For MADC:  Adv. C.S.Samundra

Case BriefsCOVID 19High Courts

Bombay High Court: Addressing the matter of dysfunctional ventilators supplied through PM Cares Fund, the Division Bench of Ravindra V. Ghuge and B. U. Debadwar, JJ., remarked,

“We would not permit experimentation of the ventilators which have undergone major repairs, in treating the patients, since this would be causing a risk/health hazard to the patients and unfortunately, the use of such ventilators may cause loss of life.”

Faulty Ventilators

Observing the report pertaining to the special meeting held in the Government Medical College and Hospital (GMCH), Aurangabad for conducting an analysis of installation, commissioning and operation of ventilators provided to the State by the Central Government for COVID-19 management, the Bench reached to the findings that:

  1. The ventilators had suffered continuous break down even after repairs;
  2. Desaturation, water drain issue, UI not proper, frequent oxygen sensor failure, water drain failure and defective user interface were some of the defects;
  3. There is a sufficient stock of consumables with the hospitals;
  4. The hospital has 269 trained personnel to operate the ventilators;
  5. Training material/User Manuals had been provided to the hospital at the time of the deployment of the ventilators;
  6. The personnel operating the ventilators were found to be aware of the functioning and operations of the said ventilators;
  7. Amongst the 21 persons who participated in the said inspection and analysis, were the representatives of the manufacture, the procurement agency HLL, CDSCO representatives, DGHS/AIIMS Nagpur and two more representatives of the manufacturer.

The ASGI had submitted before the Court that two senior Doctors, each from the Ram Manohar Lohiya Hospital and the Safdarjang Hospital would be visiting GMCH to carry out extensive inspection of the ventilators at issue and if the ventilators are found to be dysfunctional after inspection/repairs, the manufacturer would be held liable and would be made to replace defective ventilators. The ASGI further contended that no casualty would occur since these ventilators would not be made operational in the treatment of the patients until the team of the doctors visiting GMCH Aurangabad and representatives of the manufacturer ensure that the ventilators are upto desirable operational standards.

Considering the above, the Bench directed Union of India to adopt firm approach with the manufacturer in the event of a supply of defective ventilators and that if found necessary, the Bench may direct returning of the defective ventilators. The Bench clarified that it would be the responsibility of the Union of India to ensure that the defective ventilators are replaced with new functional ventilators. The Bench further made it clear that it would not permit experimentation of the ventilators which had undergone major repairs, in treating the patients as that might risk the life of the patients.

Ambulance Operators over Charging Fare

On the submission of State government that the rate chart had been affixed on every such ambulance by the RTO ensuring that those ambulances which had violated the conditions imposed as regards the fare to be charged had been penalized; the Bench directed that the competent committee deal with the offenders on day-to-day basis. The Bench further directed the RTO to carry out surprise checks of such ambulance vehicles and in the event of noticing any ambulance operator having torn/ripped off the fare chart affixed on the vehicles, such a vehicle can be impounded and heavy penalty may be imposed before granting permission to commission the said vehicle.[Registrar (Judicial) v. Union of India,  2021 SCC OnLine Bom 790, Order dated 02-06-2021]


Kamini Sharma, Editorial Assistant has reported this brief.

Appearance before the Court by:

Amicus Curiae: Satyajit S. Bora
For State of Maharashtra: Chief PP D. R. Kale
For Union of India: ASGI Ajay G. Talhar
For the respondent 8: Adv. S. G. Chapalgaonkar
For the respondent 22: Adv. K. N. Lokhande
For the respondent 25: Adv. R. K. Ingole

Case BriefsCOVID 19High Courts

Bombay High Court: The Division Bench comprising of Ravindra V. Ghughe and B. U. Debadwar, addressed the issue relating to supply of dysfunctional ventilators through PM Cares Fund. The Bench slammed the Center for contending that the ventilators were in working condition and the deficiencies were with the hospital staffs, the Bench remarked,

We would have appreciated had the affiant avoided entering into a blame game and instead shown sensitivity towards the patients, it being the paramount object of the welfare State to take care of the health of its citizens.

Whether the Ventilators Supplied through PM Cares Fund dysfunctional?

Regarding the use of the 113 ventilators supplied through PM Cares Fund a report was prepared by the Committee of eight doctors of the GMCH who deal with ICU and the utilization of ventilators. The said report indicated that the ventilators developed errors from day one. About 25 ventilators were installed in the Medicine Department and 25 ventilators were distributed to the District and private hospitals. All such 25 ventilators were returned by the ICU departments of the concerned hospitals, as they were not functioning properly and patients had started complaining about breathlessness and associated symptoms within hours of the ventilators having been switched on. The report suggested that Private hospitals also returned the ventilators stating that they were not working properly. Although, a Team of three technicians of the Manufacturer visited the GMCH, and a Company Service Engineer joined the Team and calibrated `in-put oxygen’ regulators of two ventilators, they worked well overnight and next day by afternoon patients complained about poor oxygen and showed signs of restlessness.

The Committee noted that even after major repairs, the results indicate the failure of the ventilators. In the final conclusion, the Committee opined that these machines are unsafe for patients use and it was decided not to test any of these machines on patients, henceforth.

Stand Taken by the Central Government  

The ASGI contended that the alleged 150 ventilators were never supplied through the P.M. Cares Funds thereby, completely denying that these ventilators were funded through the P.M. Cares Funds, as was earlier announced. However, to defend the same, ASGI submitted that the ventilators manufactured by M/s Jyoti CNC Automation Limited, were modern ventilators, which were highly complex and sophisticated medical equipments. Shifting the blame on the Hospitals the ASGI contended that Doctors and paramedics were not properly trained to operate such ventilators at Aurangabad. It was also submitted that after the Dean of the Government Medical College submitted a report, the MoHFW sought an explanation from the Manufacturer and as per the said explanation there was no material before the MoHFW to conclude that the ventilators were not working satisfactorily.

Explanation Given by the Manufacturer

On the other hand, the Manufacturer alleged that the Government Medical College, Aurangabad was non-cooperative right from the acceptance of the delivery and the local District Collector had to direct the GMCH for unloading and accepting the ventilators. It was submitted that there was nothing on record to demonstrate that the ventilators were malfunctioning. Applying the same scheme as that of Central government, the Manufacturers contended that the user manual and training videos were not followed by the operators and that the infrastructure available at the GMCH is inadequate hence, the ventilators were not being used properly. Lastly, it was argued that 300 ventilators were performing satisfactorily in other States of India and other regions of Maharashtra and Aurangabad, therefore, there was no fault on the part of the manufacturer and it could not be held responsible for inadequacies on the part of the GMCH.

Observations and Findings of the Court

The Amicus curiae highlighted before the Court that not a single hospital/institution which was delivered with such ventilators had submitted that even one ventilator was operating satisfactorily. Noticing that the subject “Public Health and Hospitals” is at entry-6 in the State list and the legislative powers as well as executive and administrative powers of the State Government pertaining to the said subject are covered by Article 162, the Bench opined that it is the State Government which would be answerable on this subject. Hence, before accepting or acquiring such medical equipments/instruments by any medical facility/hospital, the State Government should make it mandatory for the Manufacturer to undertake fullest cooperation and assistance in the event of the equipment becoming dysfunctional. The Bench slammed the Center Government stating that,

We are unable to appreciate the contention of the ASGI that the ventilators are in perfect operating conditions and it is the hospitals who do not have trained personnel to operate the said ventilators properly. We find that such statements demonstrate insensitivity on the part of Ministry of Health and Family Welfare (MoHFW).

The Bench opined that instead of expressing whole hearted support to ensure that such costly instruments are put to optimum utilization in the interest of the lives of the patients, the affiant found it advantageous to contend that there was no merit in the report of the Dean of the Government Medical College. Hence, the tenor of the Center government was that the ventilators were in working condition and the deficiencies were with the hospitals and the doctors/paramedics/technicians. On such submissions made by ASGI, the Bench expressed,

We find that he (ASGI) is questioning the report of the Dean, and does not even remotely refer to the six reasons as regards the malfunctioning of the ventilators cited by the GMCH. The ASGI has addressed us as if he is holding the brief for the Manufacturer.

In the backdrop of the above, the Bench directed the MoHFW to take all remedial steps and ensure that the ventilators would operate normally and all defects, if any, would be removed. The Bench warned the MoHFW to refrain from questioning the reports of the Medical Experts and respect the same in the larger interest of the society and concentrate on rectifying the ventilators.

Overcharging by Ambulance Operators

On the issue of ambulance operators openly demanding multi-fold times of the approved rates of Ambulances as disclosed by an sting operation carried out by a local reporter, the Bench held that since the District Collector of every district is the authority under the Disaster Management Act, all aggrieved patients/relatives of patients would be at liberty to complain to the District Collector, if they had suffered such overcharging of Ambulance fare and the District Collector would deal with such complaints in accordance with the procedure as is laid down.[Registrar (Judicial) v. Union of India, 2021 SCC OnLine Bom 761, Order dated 28-05-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

Amicus Curiae: Satyajit S. Bora
For State of Maharashtra: Chief PP D. R. Kale
For Union of India: ASGI Ajay G. Talhar
For the respondent 8: Adv. S. G. Chapalgaonkar
For the respondent 22: Adv. K. N. Lokhande
For the respondent 25: Adv. R. K. Ingole

Appointments & TransfersNews

Appointment of Permanent Judges

President appoints the following Additional Judges to be Permanent Judges of the Bombay High Court:

  • Avinash Gunwant Gharote
  • Nitin Bhagwantrao Suryawanshi
  • Anil Satyavijay Kilor
  • Milind Narendra Jadhav
  • Mukund Govindrao Sewlikar
  • Virendrasingh Gyansingh Bisht
  • Debadwar Bhalchandra Ugrasen
  • Smt. Mukulika Shrikant Jawalkar
  • Surendra Pandharinath Tavade
  • Nitin Rudrasen

Ministry of Law and Justice

[Notification dt. 27-05-2021]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Sunil B. Shukre and Avinash G. Gharote, JJ. addressed a very pertinent issue of what is the proper procedure for execution of a search and seizure warrant when such warrant is sought to be executed outside of the local jurisdiction of the court issuing the warrant.

In the instant case, the petitioners were rice traders in Nagpur (Maharashtra). Their godowns in Nagpur were raided by the Karnataka Police under the authority a search and seizure warrant issued by the Judicial Magistrate, Gangavathi (Karnataka). A considerable number of rice bags of a particular brand were seized and taken away by the Karnataka Police from their godowns. Aggrieved, the petitioners approached the Bombay High Court.

Territorial jurisdiction of High Courts

The respondent-State of Karnataka took a preliminary objection that the Bombay High Court had no jurisdiction to entertain the instant petition as the entire cause of action including the registration of offences, investigation into the offences and pursuant issuance of search warrant arose in the State of Karnataka.         

Refuting the submission, the Bombay High Court noted the search warrant (although issued in Gangavathi, Karnataka) was executed at two places in Nagpur, Maharashtra, and therefore part of the cause of action arose within the territorial jurisdiction of the Bombay High Court.

After this, the Court went on to state the law regarding the power and authority of a High Court to issue directions, orders or writs to any Government, Authority or any person. It said that such power includes the power to issue directions, orders or writs to a Government or Authority or a person situated outside its territorial jurisdiction, if the cause of action for filing a petition under Article 226 of the Constitution arises, wholly or in part, within its territorial jurisdiction. This power of the High Court originates from clause (2) of Article 226 of the Constitution.

Argument of alternate remedy

The State of Karnataka next contended that the petitioners had an alternate remedy under Section 451 CrPC (Order for custody and disposal of property pending trial in certain cases) and, therefore, they should knock at the doors of criminal courts in Karnataka. As such, it was argued that the Bombay High Court need not hear the petitioners.

To this the Court answered that the question raised here was about jurisdiction of the Bombay High Court, which it was found to exist. Then it would follow that just because an application under Section 451 can be made before Gangavathi Court (in Karnataka) and all the objections taken by petitioners can be raised before a court in Karnataka, such possibility still does not divest the Bombay High Court of its jurisdiction, which comes from law and not by choice of the parties.

The law is neither dependent on choice of parties nor gets its validity from acts of the parties, rather it makes the choice and acts of the parties meaningful.”

Periphery within which prayers could be entertained

The Court then considered and determined the periphery within which it would confine itself while entertaining the instant petition as the major part of the cause of action denoted by registration and investigation of the crime arose in  Karnataka.

The petition was grounded in two objections: (i) The first referred to absence of any criminality of the petitioners making their entitlement to custody of the goods seized sound; (ii) The second objection emphisesed upon the procedural aspect.

The High Court noted that the first objection was merit-oriented and though it had jurisdiction to hear it, but would not do so in its discretion. Reason being that court in Karnataka is better placed to consider and decide such objection, with the registration of the crime and its investigation being done in Karnataka. Then if an application for interim custody of goods is to be granted under Section 451 CrPC, then not only the merits of the claim require consideration but other relevant factors such as possibility and practicability of goods being conveniently produced in Court during trial, if directed, conditions to be imposed and so on, also need to be borne in mind.

But as for the claim originating from the procedural aspects, the Bombay High Court found itself to be eminently suited to hear it as the part of the cause of action arising from execution of the warrant issued by Gangavathi Court had sprouted up within the territorial jurisdiction of the Bombay High Court, which was evident from seizure of the goods from places situated within the limits of Nagpur.

Procedural requirements while executing a search warrant in different territory    

Petitioners submitted that procedure prescribed in Section 101 (Disposal of things found in search beyond jurisdiction) and Section 105 (Reciprocal arrangements regarding processes) of CrPC being mandatory had not been followed by Karnataka Police while executing the search warrant and, therefore, the seizure of rice bags had been vitiated thereby entitling the petitioners to have the seized goods restored to their custody. Sections 105 and Section 101 lay down an elaborate procedure for service or execution of summons or arrest warrant or search warrant issued by a court at a place situated outside its territorial jurisdiction.

The question raised before the Court was: Whether procedure regarding search and seizure prescribed in Sections 105 and 101 CrPC is mandatory in nature?

Adopting a holistic approach, the Court concluded the position of law which emerges from various provisions of CrPC that whenever a search warrant is to be executed at a place situated beyond the local limits of jurisdiction of a Court, the Court would have three options available before it and by electing one of the options, it may cause the search warrant executed at a place beyond its territorial jurisdiction:

            (i) The first option is of sending the warrant in duplicate to the Presiding Officer of the other Court within whose jurisdiction the place where search warrant is to be executed is situated and the procedure as regards this option is laid down in Section 105.

            (ii) The second option is, as per the provisions contained in Section 78, empowering the Court to forward the search warrant by post or otherwise to Executive Magistrate or Superintendent of Police or Commissioner of Police, who shall cause the warrant to be executed, in the manner provided therein.

            (ii) The third option is of directing the police officer to execute the search warrant, by following the procedure prescribed in Section 79.

Central theme of such elaborate mechanism is of expeditious and effective execution of search warrant within the four corners of law. The safeguards embedded are in the nature of Executive Magistrate or the Superintendent of Police or the Commissioner of Police or Police Station In-charge endorsing his name on the search warrant before its execution (Section 78 and 79); and the Presiding Officer of a Court causing the search warrant to be executed within his jurisdiction (Section 105), by subjecting it, as far as possible, to the procedure of Section 101.

Section 105 CrPC not mandatory

Discussing the above, the Court stated that procedure prescribed under Section 105 is not the only one which can be resorted to in such matters and that other options are also available. Therefore, the Court held that the words “may send such summons or warrant in duplicate by post or otherwise, to the Presiding Officer of that Court” used in Section 105(1)(i) cannot be understood as having any prescriptive or mandatory form. The word “may” used here, therefore, cannot be read as signifying a command which inheres in the verb “shall”. If any mandatory form is clothed to “may”, it would render the other modes available for execution of warrant redundant. The Magistrate would be left with no option but to get his warrant executed only by procedure of Section 105. The Magistrate would feel tied down to only Section 105 procedure, inspite of availability of other options. To prevent any such constriction of the power of the Magistrate from taking place the legislature intentionally employed the word “may” and left it to the discretion of the Magistrate to choose between the three modes of execution of warrant.

Section 101 CrPC mandatory with exceptions

The High Court noted that Section 101 is an omnipotent provision, it being the only of its kind which deals with disposal of things found in the search, whether under Section 78 or Section 79 or Section 105 and so it has universal application to all searches made by resorting to any of the three modes of the execution of warrants, barring the power of the Magistrate to depart from it in a rare case under Section 105.

Language of Section 101 has an imperative character. This is evident from the use of an expression indicative of a mandate therein. The mandate is expressed in words “such things, together with the list of same prepared under the provisions hereinafter contained, shall be immediately taken before the Court”. Uses of the modal verb “shall” here signifies nothing but command of the legislature which must be followed. The command is that the things found in the search must be taken before the Court issuing the warrant but, if such Court is situated farther than the Court within whose local jurisdiction the things are found, the things are required to be taken before such nearer Court. When the things are produced before the nearest Magistrate having jurisdiction over the place searched, along with list of the articles found, such Magistrate is required to make an order authorising the things to be taken to the Court issuing the warrant, unless he finds a good cause to the contrary.

Explaining the scope of exception to the command in Section 101, the Court stated that Section 105(2)(d)(ii), lays down that where a search warrant has been executed, things found in the search shall, so far as possible, be dealt with in accordance with the procedure prescribed by Section 101. This would suggest that ordinarily Section 101 procedure should be followed while executing the search warrant in accordance with the procedure prescribed by Section 105, but in exceptional cases, such procedure, in so far as it relates to producing the seized articles before the nearest Magistrate, can be dispensed with by the Court concerned depending on the fact situation of each case. The reason being that Section 105 procedure is a Court-monitored mode of execution of the search warrant, which is not so in case of the modes referred to in Sections 78 and 79.

In view of above, it was answered that Section 101 procedure governing the disposal of things found in search beyond jurisdiction is mandatory when the modes of execution of warrant laid down in Sections 78 and 79 are resorted to and without any exception. Further, when the mode of execution of warrant referred to in Section 105 is taken recourse to, ordinarily the procedure prescribed by Section 101 for production of seized articles must be followed and it is only in exceptional cases when warranted by fact situation of a particular case that departure therefrom, for reasons to be recorded in writing, can be permitted to be made by the Court getting the warrant executed and that too upon prescription of suitable conditions and adequate safeguards to ensure misuse of powers by the executing officer.

Decision in the instant case

Having understood the law governing the subject, the High Court noted that the Karnataka Police obtained the authorisation of the officer in-charge of the jurisdictional police sttion and executed the search warrant at two placed in Nagpur, Maharashtra. This was as per the procedure laid down in Section 79 CrPC. But, thereafter, the procedure governing disposal of things found in the search as prescribed by Section 101 was not followed by the Karnataka Police, who executed the warrant.

Having already found that procedure contained in Section 101 CrPC, in so far as it relates to Sections 78 and 79, is mandatory and no exception to it and no departure from it are permitted, the Court held that the entire search and seizure operation was vitiated and the seizure of rice bags was illegal. The respondents were directed to restore the seized rice bags to the petitioners. [Angel Click v. State of Karnataka, 2021 SCC OnLine Bom 682, decided on 7-5-2021]

Case BriefsHigh Courts

Bombay High Court: The Division Bench of M.S. Sonak and M.S. Jawalkar, JJ., addressed the instant PILs in the context of the unprecedented COVID-19 pandemic in the country and its deleterious effects in the State of Goa.

On Security Measures for the Protection of Healthcare Professionals

The Bench observed that, the situation is quite telling on the aspect of security measures for the protection of healthcare professionals in the light of statement issued by the Goa Association of Resident Doctors (GARD), which spoke of overcrowding at the hospitals, lack of sufficient oxygen, and other infrastructure necessary to treat and support the COVID-19 patients. The statement also raised the issue of disconnect between the facilities projected and the facilities actually available. Above all, it had highlighted the plight of the healthcare professionals in the particular context of their personal security and the conditions in which they are presently working.

Observing that the healthcare professionals which includes the Resident Doctors, whose cause the GARD espoused, are in the frontline, at the hospitals, at the casualty wards, and the Intensive Care Units along with the COVID patients. Therefore, the said statement could not be lightly brushed aside or completely ignored. The Bench expressed,

Each of us owes a debt of gratitude to the healthcare professionals who have gone beyond the call of their duty and toiled day in and day out relentlessly, without any rest amidst this serious crisis. Therefore, the minimum that we collectively owe to these healthcare professionals is security.”

The Bench added that very often the stress of patients and their relatives result in physical violence against healthcare professionals. Nevertheless, “A message must go out loud and clear that there will be zero tolerance for any form of physical or verbal violence against healthcare professionals. Such violence against healthcare professionals is simply not acceptable and must be dealt with by a firm hand.”

On Covid “Negative” Certificate for Entering in the State

“We see no justification in the State of Goa not insisting upon a negativity certificate from persons who seek entry into Goa at this crucial juncture when reports indicate that the positivity rate in Goa is as high as 52%.”

Noticing that, reportedly, each day travelers by road, flight, or train entering into Goa are found to be COVID positive; the Bench stated, if this is the status of the tested cases, it is reasonable to estimate a similar or perhaps larger number of positive cases that enter in Goa.

To permit virtually unrestricted entry in such critical times is neither fair to the populace in Goa already suffering from the overstretched medical infrastructure nor to the unsuspecting tourists who have to very often avail of the overstretched facilities at a great price. The Bench remarked,

This is not a case of sealing the borders. This is only a case where steps are taken to ensure that the persons who are entering into Goa are not already tested as COVID positive so that they do not contribute to the spread of the epidemic and at the same time are cared for better in their own State.”

In the light of above, the Bench issued detailed directions to the State Government:

  1. Ensure there is no violence against the healthcare professionals and such violence, if any, shall be dealt with firmly following the law. For this purpose, sufficient police personnel shall be posted round the clock at hospitals, wards, etc.
  2. Sufficient boards or posters must also be put up at such places to make it clear that there will be zero tolerance towards any form of violence against healthcare professionals.
  3. Formulate some suitable mechanisms to ensure that some testing facilities are available at the borders or entry points so the supplies of essentialities or in the ingress of essential personnel are not affected.
  4. Give patients and their relatives proper information as to the line of treatment or otherwise, counsel them about the health status of the patients.
  5. Formulate a fair and transparent hospital admission policy and, no patient shall be denied hospital admission for want of residential proof of his/her State or even in the absence identify proof.
  6. File an affidavit to indicate the infrastructure presently available and the efforts and timelines for augmentation of the same.
  7. Considering that the State of Goa has no bulk manufacturing plant and it has to rely upon the Central Government or some other sources for procuring this oxygen, the Court directed the State Administration to file an affidavit as to the need of the State and whether this need is met by the supplies made from the various sources. Affidavit to also indicate whether any steps have been taken by State Administration for having plants for the manufacture of oxygen in the State of Goa itself and the status thereof.
  8. The State Administration should also file an affidavit indicating the position of stocks of essential medicines available in the State of Goa and the steps taken to augment the same.
  9. At this stage, it is necessary that there are proper testing facilities available and further, the result of such tests are made available at the earliest. Directions were issued to file an affidavit to indicate whether any arrangements have been made to collect samples from home where the patients, for genuine reasons are unable to access testing stations.
  10. File an affidavit indicating the position of vaccination drive in the State, which shall also indicate whether any facilities have been provided for the marginalized section of the society, the disabled or the senior citizens, who are unable to access the vaccination centers. The affidavit to also indicate the status of the vaccination drive for the persons between 18 and 44 years.
  11. To make the website indicating the availability of beds in various hospitals operational. Further, this website to indicate not only the number of beds available in realtime but also the type of beds, which are available so that the patients have a clear picture as to the hospitals in which they can seek admission.

Lastly, the Bench expressed, the populace has to understand that the State is faced with an overwhelming numbers of covid-19 cases; hence, some inadequacies are quite natural. However, there has to be transparency on the part of the State and the nature and the extent of facilities available must be put out in the public domain so that there is no scope for unnecessary anxiety or rumor-mongering.

[South Goa Advocates Assn. v. State of Goa, 2021 SCC OnLine Bom 694, decided on 06-05-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

For the Petitioners: Adv. Nikhil Pai

For the State of Goa: AG D.J. Pangam with Adv. Ankita Kamat,
For the Union of India: ASG P. Faldessai and SC R. Chodankar,

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Dipankar Datta, CJ and G.S. Kulkarni, J., said that it is for the Government and its appropriate department to explore ways and means to prevent contamination as well as exposure of vaccine beyond recommended temperature so that vaccination programme can be taken to doorsteps of elderly and disabled citizens.

 Door-to-Door Vaccination

Petitioners in the present matter were the practicing advocates who placed their concern for the elderly and disabled citizens and sought orders on respondents to introduce door-to-door vaccination for such citizens.

Bench appreciated the above concern and had asked the respondents to file reply affidavits in the last hearing.

What was the respondent’s response?

Respondent laid down the following reasons due to which door-to-door policy for COVID-19 vaccines does not exist:

“6.1 In case of any Adverse Event Following Immunization (“AEFI” for short), case management may not be proper and there will be delay in reaching health facility.

6.2 Challenges in maintaining protocol of observation of beneficiary for 30 minutes after vaccination.

6.3 The vaccine will be place in and out of Vaccine Carrier for each vaccination there by increasing chances of contamination and exposure beyond recommended temperature which could affect vaccine efficacy and cause Adverse Events Following Immunization which will be detrimental to vaccine confidence and programme performance.

6.4 high vaccine wastage due to increased time going from door to door taking more time for reaching out to each beneficiary.

6.5 Following protocols for Physical Distancing and Infection prevention and Control might not be possible during door to door campaign.”

Analysis and Decision

Bench in view of the above-stated reasons prima facie opined that despite not being experts in the field of medicine and healthcare, the said reasons, if indeed form part of a policy decision of the Central Government, need to be revisited for what follows.

If indeed, vaccination of elderly citizens by adopting a door-to-door vaccination policy is being avoided because such elderly citizens are aged and suffer from comorbidities, we regretfully record that the elderly citizens are literally being asked to choose between the devil and the deep sea.

 Court held that a policy that leads to the above conclusion is arbitrary and unreasonable, for the elderly citizens are entitled to the protection of Article 21 of the Constitution of India as much as the young and abled-bodies citizenry of the country. Hence such a reason is difficult to be sustained.

With respect to paragraph 6.3 in the said reasons above, Court stated that it is difficult to assume that ambulances fitted with refrigerators to maintain the recommended temperature are not available and, therefore, efficacy of the vaccine would be compromised or that AEFI following vaccination would have a detrimental effect on vaccine confidence and programme performance.

Should long exposure of the vaccine result in contamination, it is for the Government in its appropriate department to explore ways and means to prevent contamination as well as exposure beyond the recommended temperature so that the vaccination programme can be taken to the door steps of elderly and disabled citizens.

Further, Bench added that if indeed proper temperature control measures are taken and personnel well trained to vaccinate together with the vaccine is made to travel in appropriate vehicles for reaching duly identified elderly and disabled citizens, who could benefit by reason of such vaccination, Court does not see any reason as to why this particular reason could hinder adoption of a door-to-door vaccination policy.

Finally, while concluding High Court addressed the reason at paragraph 6.5, which was found oblivious of the realities at the ground level.

Court stated that it could take judicial notice of the huge crown at the vaccination centers at any given point where COVID protocols are being unintentionally compromised.

Respondent did not explain how it would not be possible to maintain physical distancing and infection prevention control measures of a door-to-door vaccination campaign was introduced.

Anil C. Singh, Addl. Solicitor General, assured the Court that the decision of respondent 1 not to initiate door-to-door vaccination programme shall be given a relook within 2 weeks.

Hearing adjourned till 6-05-2021. [Dhruti Kapadia v. Union of India, 2021 SCC OnLine Bom 659, decided on 22-04-2021]


Advocates before the Court:

Ms Dhruti Kapadia and Mr Kunal Tiwari, Petitioners-in-person. Mr Anil C. Singh, Addl. Solicitor General a/w Advaith Sethna i/by Anusha P. Amin for respondent 1-UOI.

Ms. K. H. Mastakar for MCGM.

Mr A. A. Kumbhakoni, Advocate General a/w Smt. Purnima Kantharia, Govt. Pleader a/w Ms Geeta Shastri, Addl. Govt. Pleader for respondent-State.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Z.A. Haq and Amit B. Borkar, JJ., while addressing the matter, observed that:

In the absence of a specific penal provision creating vicarious liability, an administrator of a WhatsApp group cannot be held liable for objectionable content posted by a member of a group.

Common intention cannot be established in the case of WhatsApp service user merely acting as a group administrator.

By the present application under Section 482 of the Code of Criminal Procedure, the applicant laid challenge to charge-sheet filed in the Court of Judicial Magistrate in pursuance of FIR registered with non-applicant 1 for offences punishable under Sections 354-A(1)(iv), 509 and 107 of the Penal Code, 1860 and Section 67 of the Information Technology Act, 2000.

As per the FIR, applicant was an administrator of a WhatsApp group, that accused 1 used filthy language against non-applicant 2 on a WhatsApp group of which applicant was an administrator, that despite accused 1 using filthy language against the non-applicant 2, applicant had not taken any action against accused 1.

Further, it was alleged that the applicant being the administrator had not removed nor deleted accused 1 from the WhatsApp Group.

In view of the above, non-applicant 2 lodged the FIR against the applicant and accused 1.

Hence, the applicant has, therefore, filed a present application challenging filing of charge-sheet and continuation of proceedings against the applicant.

Crux of the Issue

Whether an administrator of a WhatsApp group can be held criminally liable for the objectionable post of its member for committing offences punishable under Sections 354-A(i)(iv), 509 and 107 of the Penal Code, 1860 and Section 67 of the Information Technology Act, 2000?

Powers of the WhatsApp Group Administrator:

A group administrator has limited power of removing a member of the group or adding other members of the group. Once the group is created, the functioning of the administrator and that of the members is at par with each other, except for the power of adding or deleting members to the group.

The administrator does not have the power to regulate, moderate or censor the content before it is posted on the group. But, if a member of the WhatsApp group posts any content, which is actionable under law, such person can be held liable under relevant provisions of law.

Further, it was expressed that, a group administrator cannot be held vicariously liable for an act of a member of the group, who posts objectionable content, unless it is shown that there was a common intention or pre-arranged plan acting in concert pursuant to such plan by such member of a Whatsapp group and the administrator.

In the FIR it was stated that sexually coloured remarks were made by accused 1 and applicant being administrator of the WhatsApp group had not taken action of deleting the accused 1 from the group, nor had sought an apology from accused 1.

Decision

In Court’s opinion, non-removal of a member by the administrator of a WhatsApp group or failure to seek apology from a member, who had posted the objectionable remark, would not amount to making sexually coloured remarks by the administrator.

Court found that essential ingredients of Section 107 of IPC that the applicant had instigated or intentionally aided by his act or illegal omission to accused 1 to make sexually coloured remarks against non-applicant 2 were conspicuously absent. Hence the said Section will not be attracted in the present case.

Section 509 of the IPC criminalizes word, gesture, or act ‘intended’ to insult the modesty of a woman. In order to establish this offence, it is necessary to show that modesty of a particular woman has been insulted by a spoken word, gesture or physical act.

In the present matter, the above-stated offence cannot be made out against applicant, when the grievance of non-applicant 2 was that accused 1 had used filthy language against the non-applicant 2.

To constitute an offence under Section 67 of the Information Technology Act, 2000, a person must publish or transmit an obscene material in electronic form.

High Court in view of the above discussion, found no allegation or material that the applicant had either published, transmitted or caused to be published or transmitted in electronic form any material, which was lascivious or appealed to prurient interest or its effect was such to tend to deprave and corrupt persons who were likely to read, see or hear the matter contained.

Bench added that the applicant had neither published nor transmitted or caused to be published or transmitted any electronic form, any material which was obscene in nature.

Lastly while concluding, the High Court held that parameters of exercise of the powers conferred on this Court under Section 482 CrPC being settled, that in order to prevent the abuse of process of any Court and to secure the ends of justice, this power can be exercised.

Bench stated that the present case is the one where power needs to be exercised.

Taking the overall view of the matter, Court was satisfied that even if allegations in the FIR were accepted as correct and considering the material in charge sheet on its face value it does not disclose essential ingredients of offences alleged against the applicant under Sections 354-A(1)(iv), 509 and 107 of the Indian Penal Code and section 67 of the Information Technology Act, 2000.

Hence the continuation of present proceedings against the applicant would amount to an abuse of process of Court. [Kishor v. State of Maharashtra, 2021 SCC OnLine Bom 654, decided on 01-03-2021]


Advocates before the Court:

Mr R.M.Daga, Advocate for the applicant. Mr T.A.Mirza, A.P. P. for the non-applicant No.1.

Mr Sanjay A. Bramhe, Advocate for the non-applicant No.2.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Sunil B. Shukre and S.M. Modak, JJ., heard the present matter at the late hour of the night.

Reason for later night hearing?

To provide immediate succour to the COVID patients who have been suffering no end in the present situation of scarcity and non-availability of almost every essential service, insofar as their medical management was concerned.

Two Fundamental Issues in the hearing

Issue of an adequate supply of:

  • what is considered to be a life-saving drug, Remdesivir
  • what is considered to be a lifeline of the COVID patients, oxygen supply.

Bench stated that on 19-04-2021, Court had directed the authorities at the helm of affairs to release and provide to Nagpur not less than 10000 vials of Remdesivir within a few hours of passing of the order, however, it was not complied with fully. Though Court noted that some vials had been released and allocated for being used for the treatment of serious COVID patients.

Information came before the Bench was that 6752 vials of Remdesivir were to be received in Nagpur latest by 22-04-2021 and as they would be received it would be fairly and equitably distributed amongst the government and private hospitals by the nodal agency.

Another significant point that was noted was that seven pharmaceutical companies had been actively involved in supply of the said drug and all the companies except for Jubilant based in Ghaziabad assured supply of specific quantity of the vials latest by 22-04-2021.

In view of the above, High Court directed the nodal authority to distribute all the vials equitably amongst all private and government hospitals latest by evening of 22-04-2021.

Coming to the supply to be made by Jubilant Company, it was informed that the agents had no information was available with them regarding the quantity of the drug that would be sent.

Bench directed the Joint Commissioner, Food and Drugs Administration, Nagpur to ensure that specific information was to be supplied by Jubilant Company to this Court on the next date of hearing.

Further, the Bench requested the A.S.G.I to obtain instructions from respondent 3 regarding the steps taken by him exercising his powers under the Drugs Control Act and other relevant laws in ensuring the fair and equal supply of the said drugs by the 7 companies not only to Maharashtra or Vidarbha Region of Maharashtra but to the entire nation.

ASGI to ensure the proper and continuous supply of the said drug to all the areas across the nation and also to prevent hoarding, undue stocking and black-marketing of the drug.

Bench remarked that:

“…something for the present is required to be done, if we have to perform our duty of preservation of precious human life arising from Article 21 of the Constitution of India.”

Court has also received information that some stockists in Nagpur and also some depots in Nagpur have been holding over substantial quantities of Remdesivir vials which is in violation of law.

In view of the above, Bench directed Mr Kose Joint Director of F.D.A to initiate effective action and ensure that G.M.C Nagpur receives at least 100 vials so that the lives of serious COVID patients would be saved.

Supply of Oxygen 

Bench while calling the present scenario to be disappointing, noted that the Court has been informed PRAX AIR, HYPHEN LINDE had been, till recently, supplying 110 metric tons of liquid oxygen every day. But, now this supply has been reduced to 60 metric tons as per the communication dated 18.4.2020 issued by the Ministry of Health and Family Affairs, New Delhi.

In Court’s opinion, the above-stated communication dated 18th April, 2020 has hit the State of Maharashtra as a bolt from the blue. Although no order for fixing the quota of liquid oxygen supply was made from PRAX AIR – Bhilai for the State of Maharashtra.

In this situation of emergency poignantly enveloping a region which accounts for almost 40% Covid patients of the entire nation, the communication from the Ministry of Health and Family Affairs should have been to the effect of increasing the supply of liquid oxygen to the State of Maharashtra from the present practice of 110 metric tons per day to somewhere between 200 to 300 metric tons per day.

High Court remarked that unfortunately things have been turned in a reverse manner and it has been affected very severely  COVID patients in the State of Maharashtra and in particular the Vidarbha Region.

Further, the Bench considered the dire need of these patients and also total share of Covid patients of this State in the entire cases the country, High Court deemed it necessary that the earlier practice of supply of 110 metric tons of oxygen per day by PRAX AIR – Bhilai is restored and accordingly, we direct that notwithstanding the communication dated 18.4.2021 issued by the Ministry of Health and Family Welfare, PRAX AIR – Bhilai shall continue to supply 110 metric tons of liquid oxygen to the State of Maharashtra until further orders.

Adding to the above, Joint Commissioner, F.D.A Nagpur has been directed to see that there is no breakdown in the supply of oxygen to all the hospitals in Nagpur and in case any COVID Hospital run in a short supply of oxygen, they should bring this fact immediately to the notice of the Joint Commissioner, F.D.A, Nagpur and also the Collector, Nagpur.

Before parting with this order, Court would like to remind the Joint Commissioner, F.D.A, Nagpur and A.S.G.I that they need to comply with the directions given by this Court in the order dated 30-04-2021.

“…it has been brought to our notice that a proposal for bringing Remdesivir drug under the sweep of the Drugs (Price Control Order), 2013 has been moved and a meeting in this regard was also held at Mumbai on 19th March, 2021.”

Next sitting of this Court would be on 23-04-2021. [Court on its own motion v. Union of India, 2021 SCC OnLine Bom 660, decided on 21-04-2021]


Advocates before the Court:

Mr S.P. Bhandarkar, amicus curiae for petitioner.

Mr U.M. Aurangabadkar, ASGI for respondent no.1. Mr M.G. Bhangde, Sr. Cl. Assisted by Mr D.P. Thakare, Addl. G.P. along with Mrs Ketki Joshi, G.P for respondent nos. 2, 5, 6, 8 & 9.

Mr S.M.Puranik, Advocate for respondent no.4. Mr B.G. Kulkarni, Advocate for respondent no.10. Mr C.S.Samundre, Advocate MADC.

Mr M. Anilkumar, Advocate for Intervenor/applicant (C.A. No.5775 of 2021 & 692 of 2020 in P.I.L. No.4 of 2020). Mr T.D.Mandlekar wit Mr Tushar Malviya, Advocates for Intervenor/applicant (C.A. St.No.5806 of 2021 in P.I.L. No.10 of 2020).

Dr P.K.Arora, in-person in CAO No.723 of 2021.

Mr Ram Heda, Advocate for Applicants in Civil Applications C.AO. St. Nos. 4987 of 2021 and 4988 of 2021.

Mr Nitin Lambat, Advocate for Railways.

(Ms Sushma Advocate for Respondent No.1 & Mr J.B.Kasat, Advocate for Respondent No.4 in P.I.L. No.25 of 2020).

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Sunil B. Shukre and Avinash G. Gharote, JJ., addressed the suo motu public interest litigation raising concern with regard to a deficient supply of Remdesivir Drug and Oxygen Supply.

Bench stated that no solution has been found regarding the deficiency in the supply of Remdesivir drug and also oxygen to COVID hospitals in Nagpur City as well as the hospitals situated in the entire Vidarbha region.

Joint Commissioner, F.D.A Nagpur, Mr Kose informed the Court that there has been shortage in supply of the drugs by the manufacturing Companies and hence resulting in a shortage on making available the said drugs to all the COVID Hospitals.

Court’s earlier direction to the State with regard to releasing ten thousand vials of Remdesivir has also been partially complied and several reasons for non-compliance were laid down.

Bench observed that Joint Commissioner, F.D.A. and the Additional Collector, Nagpur, have started to shirk their responsibilities in giving succour and relief to COVID-19 patients.

Further, the Court requested Nagpur COVID-19 Committee to hold an emergency meeting immediately and to come back to the Court with some positive response on the said issue.

High Court emphasized that Nagpur COVID-19 Committee must take efforts to procure Remdesivir vials today itself in sufficient quantity and augment supply of oxygen to COVID Hospitals.

Noting the reports of malpractices, Bench advised the authorities to consider increasing frequency of checks, surprise raids and inspection.

Lastly while concluding the present order, Court held that the purpose of hearing was to make effective rendering of essential services to COVID patients and therefore, authorities concerned should not take any coercive actions against persons coming to the Court to assist the Court.

“…affidavits filed by the Joint Commissioner and Additional Collector today making contradictory statements and taking inconsistent stands would have to be ignored and opportunity would have to be given to both these Officers to come out with consistent and correct stands and also stating correct facts.”

Leave granted to file fresh affidavits. [Court on its own motion v. Union of India, 2021 SCC OnLine Bom 660, decided on 21-04-2021]


Advocates before the Court:

Mr.S.P.Bhandarkar, amicus curiae for petitioner.

Mr.U.M.Aurangabadkar, ASGI for respondent no.1. Mr.M.G.Bhangde, Sr. Cl. Assisted by Mr.D.P.Thakare, Addl. G.P. along with Mrs.Ketki Joshi, G.P for respondent nos. 2, 5, 6, 8 & 9.

Mr.S.M.Puranik, Advocate for respondent no.4. Mr.B.G.Kulkarni, Advocate for respondent no.10. Mr.C.S.Samundre, Advocate MADC.

Mr.M. Anilkumar, Advocate for Intervenor/applicant (C.A. No.5775 of 2021 & 692 of 2020 in P.I.L. No.4 of 2020). Mr.T.D.Mandlekar, Advocate for Intervenor/applicant (C.A. St.No.5806 of 2021 in P.I.L. No.10 of 2020).

Dr.P.K.Arora, in-person in CAO No.723 of 2021.

Mr.Ram Heda, Advocate for Applicants in Civil Applications C.AO. St. Nos. 4987 of 2021 and 4988 of 2021.

Mr.Nitin Lambat, Advocate for Railways.

(Ms Sushma Advocate for Respondent No.1 & Mr.J.B.Kasat, Advocate for Respondent No.4 in P.I.L. No.25 of 2020).

Case BriefsCOVID 19High Courts

Bombay High Court: The Division Bench of Nitin Jamdar and C.V Bhadang, JJ., upheld the order of the District Court refusing to pass injunction against the use of the name “Covishield” by Serum Institute of India for its COVID-19 vaccine.

What is the subject matter of the instant appeal?

Instant appeal is with regard to the trademark ‘Covishield’.

Factual Matrix

Appellant and Respondent applied for registering the above-stated trademark and their application have been pending.

In the present suit, Cutis Biotech sought an interim injunction to restrain Serum Institute from using the trademark ‘Covishield’ and maintain the accounts regarding the sale.

The above stated interim application was rejected by the District Judge/Commercial Court, therefore, Cutis Biotech filed an appeal before this Court under Section 13 of the Commercial Court Act, 2015.

On 29th April, 2020 Cutis Biotech had filed an application for the registration of trademark ‘COVISHIELD’ under Class-5 and the same is pending and in June, 2020 the Serum Institute applied for the registration of trademark ‘Covishield’.

While rejecting the interim application, District Court held that:

The District Court considered the law on the subject and the tests required for grant of injunction in case of passing off. The District Court held that Cutis Biotech had earned no goodwill in a short time. There was no dishonest deception by Serum Institute for passing off or to divert the business of Cutis Biotech.

Analysis, Law and Decision

Bench noted that neither Cutis Biotech nor Serum Institute have a registration for the trademark ‘Covishield’, but as per Section 27(1) of the Trade Marks Act, 1999 it is mandated that no person shall be entitled to institute any proceeding to prevent or recover damages for the infringement of an unregistered trademark. Though sub-section 2 of the above provision, reserves the right to take action against any person for passing off his goods or services as the goods and services of the applicant and preserves the remedies to prevent passing off actions.

Hence in the instant case, Cutis Biotech has based its case on the action of passing off.

Ingredients to grant an injunction 

While granting an injunction in the case of passing off, both ingredients of injunction i.e. prima facie case and balance of convenience should exist in favour of the applicant.

Court must be satisfied that there are serious questions to be tried at the suit, irreparable damage will be caused to the applicant and hardship would be more to the applicant, and therefore an interim injunction is necessary.

Bench remarked that,

“foundation of passing off action is the existence of goodwill. Further as to who conceived and adopted the mark earlier is also relevant.”

 High Court found no prima facie case to be established by Cutis Biotech with respect to the prior user.

On evaluating the evidence on record, Court found that Serum Institute had coined the word ‘Covishield’ and took substantial steps towards its development and manufacture. Thus, the evidence demonstrates the prior adoption of the mark by Serum Institute. Hence, no perversity was found with the finding that Cutis Biotech cannot claim to be a prior user of ‘Covishield’.

Likelihood of deception and Whether the products of Cutis Biotech and Serum Institute are in the common field

To establish the above-stated point, actual confusion is not required to be established and a likelihood of confusion is enough to establish the ingredients of passing off.

In the present matter, a common-sense approach will have to be adopted to find out whether Serum Institute’s conduct was calculated to pass off its goods as that of the Cutis Biotech’s or at least create confusion in the mind of the customers leading to the Serum Institute benefiting at the expense of the Cutis Biotech.

Bench expressed that the vaccine ‘Covishield’ produced by Serum Institute is not available across the counter and is being administered through Government agencies. The buyer of the product ‘Covishield’ of Serum Institute is the Government of India. The administration of the vaccine is through an injection. The sale of disinfectant or hand sanitiser, though it may relate to the same field, that, health care products, cannot be said to cause confusion in the mind of average consumers.

Court remarked that, it would be too farfetched to hold that there will be confusion in the average consumers’ minds between the use of a trademark in a Government administered vaccine at designated places and over the counter sanitizer products.

Adding to the decision, Bench held that Cutis’s contention that people may buy its products of thinking they are protected against coronavirus because of the use of mark ‘Covishield’ is self-destructive and against the concept of passing off.

Cutis Biotech through its submissions could not establish a case of passing off action, whereas the High Court observed that Serum Institute claimed the ingredients of passing off action, yet it had not moved any cause for restraining Cutis Biotech for passing off action.

Regarding maintaining accounts, a direction to maintain accounts is not a routine order and cannot be issued when there is no prima facie case made out by Cutis Biotech.

Balance of Convenience

Vaccine ‘Covishield’ of Serum Institute had started being administrated from 16 January 2021. The Government of India rolled out an extensive vaccine administration programme and identified almost 300 million people for the vaccine in the first round, and the first order for 11 million doses for the ‘Covishield’ vaccine was placed. The second dose would be administered after the stipulated weeks. On 1 March 2021, a vaccination drive for those above the age of sixty and the age of forty-five years with comorbidities was launched. ‘Covishield’ vaccine of Serum Institute was supplied through the States and Union Territories.

Serum Institute has also placed on record that it has spent Rs 28 crore on the development, research and is expected to spend a further Rs 20 crore. With these facts, the balance of convenience is not in favour of Cutis Biotech.

A temporary injunction directing Serum Institute to discontinue the use of mark ‘Covishield’ for its vaccine will cause confusion and disruption in the Vaccine administration programme of the State.

 Hence, grant of an injunction would have large scale ramification traversing beyond the parties to the suit.

Scope of an Appeal

High Court observed that appellate court doesn’t generally interfere if the conclusion arrived at by the trial court is reasonably possible.

A total deference to the discretion by the trial court is not expected from the appellate court if the order is arbitrary or perverse.

 Bench held that, in the present case, discretion used by District Judge in refusing to grant an injunction was not arbitrary or perverse.[Cutis Biotech v. Serum Institute of India (P) Ltd., 2021 SCC OnLine Bom 616, decided on 20-04-2021]


Advocates before the Court:

Mr Abhinav Chandrachud and Mr Aditya Soni with Chetan Alai, Shriniwas Bade and Mr Swaraj Jadhav i/b. White & Brief Advocates & Solicitors for the Appellant.

Dr Birendra Saraf, Senior Advocate with Mr Rohan Savant, Mr Hitesh Jain, Ms Pooja Tidke, Ms Monisha Mane Bhangale and Ms Warisha Parkar i/b. Parinam Law Associates for the Respondent.

Case BriefsCOVID 19High Courts

Bombay High Court: The Division Bench of Nitin Jamdar and C.V. Bhadang, JJ., took suo motu cognizance of the rise on COVID-19 cases in the prisons of State of Maharashtra.

Instant Public Interest litigation was a Suo Motu PIL initiated Re: the rise in COVID-19 Virus cases in March-April 2021 in the prisons of the State of Maharashtra.

Newspaper reports, more particularly, Hindustan Times and Free Press Journal have highlighted an alarming rise in the COVID-19 cases in the prisons in the State of Maharashtra. It had been reported that almost two hundred prisoners amongst 47 prisons in the State have been tested positive as of 14th April 2021. For about 86 staff members working in the prisons have been tested positive.

Advocate General informed the Bench that the Court had taken up a similar cause in July 2020 where the measures taken by the State Government were noted and certain directions were issued.

“…reports show a sudden rise of the COVID-19 cases in the State prisons, indicating a need for the Court’s intervention to revisit the measures.”

Bench directed the Registry to register the Suo Motu (Criminal) Public Interest Litigation under Rule 4 of the Bombay High Court Public Interest Litigation Rules, 2010.

The petition will be taken up today.

Court directed respondents to place the following information on record:

  • Status of the COVID-19 cases, both the staff members and the inmates in the prisons in the State of Maharashtra.
  • Measures being taken and proposed to be taken to control the spread of the Virus in the prisons
  • Measures to de-congest the jails in the State of Maharashtra.

[High Court on its own motion v. State of Maharashtra, Suo Motu Public Interest Litigation No. 1 of 2021, decided on 16-04-2021]


Advocates before the Court:

Mr A.A. Kumbhakoni, Advocate General a/w. Mr Deepak Thakare, Govt. Pleader for the Respondent – State

Case BriefsCOVID 19High Courts

Bombay High Court: The Division Bench of Z.A. Haq and Amit Borkar, JJ., directed that reports for RT PCR test shall be made available to patients on Whatsapp.

Dr Mukesh Chandak, Intervener raised the difficulties that the patients were being subjected to during the upsurge of the COVID-19 pandemic in obtaining the reports of the RT-PCR Test.

Delay in receiving the reports by patients was being caused for the reason that till the time reports were being uploaded on the ICMR website the same was not being provided to the laboratories.

Hence, Court directed for the said reports to be uploaded and made available to the patients on Whatsapp, who tests positive shall be uploaded on the ICMR portal within 24 hours and reports of patients who test negative should be uploaded on ICMR portal within 7 days.

If the above-said directions will not be complied with by the laboratories, Court directed the authorities to take appropriate action against the laboratories concerned.

The said arrangement shall continue until further orders.

In view of the above, civil application was disposed of.[Court on its own motion v. Union of India, Suo Motu Public Interest Litigation 4 of 2020, decided on 15-04-2021]


Advocates before the Court:

S. P. Bhandarkar, Amicus Curiae
D.P.Thakre,Addl.G.P.forState
U. M. Aurangabadkar, ASGI for Union of India Shri Raheel Mirza, Advocate for Intervener
T. D. Mandlekar, Advocate for Intervener
M. Anilkumar, Advocate for Intervener

Case BriefsCOVID 19High Courts

Bombay High Court: The Division Bench of Z.A. Haq and Amit Borkar, JJ., issued directions till the regulation of Remdesivir and Tocilizumab injections.

It was submitted that the State Government, on principle, accepted the proposal regarding setting up of oxygen plant/factory at Nagpur. Government considered setting up of such plants at other places in Maharashtra as well, for the said reason a meeting with Chief Secy. of Maharashtra Government on 15-04-2021 was convened.

Remdesivir Injections

M.G. Bhangde, Senior Advocate stated that as far as the issue of Remdesivir Injections was concerned and making provision for centralized portal containing the name of the patient with details/number of Aadhar card of the patient, name of the hospital where such patient is hospitalized/treated and the number of dose/doses given to the patients, such centralized portal would be started immediately.

Further, it was added that the hospitals where the patients were administered dose/doses of Remdesivir Injections will have to ensure that required data is being updated on the centralized portal immediately.

Adding to the above, another submission was made that if a patient is not able to get bed in a Dedicated Hospital and is required to be administered dose/doses of Remdesivir Injections, he can be given the dose/doses in the Outdoor Patient Department of that Dedicated Hospital.

If a patient is not able to get the bed in a Dedicated Hospital and is not able to get service even in Outdoor Patient Department in Dedicated Hospital and such patient undergoes treatment in a Non-Dedicated Hospital and the Doctor treating such patient is of the opinion that the dose/doses of Remdesivir Injections is / are required to be administered to such patients, the Collector of the District shall ensure that the dose/doses of Remdesivir Injections is / are made available to such patient also.

Such patient shall not be denied the Remdesivir Injections only on the ground that he has undergone treatment in a Non-Dedicated Covid-19 Hospital

With regard to issue of availability of Tocilizumab injections was concerned, Senior Advocate stated that the injection was being imported and the distribution and supply of the said injection was to be regulated by the State Government and its authorities, whereas its distribution was covered by Central Government. 

Following directions were issued by the Bench:

  • Joint Commissioner, Food and Drugs Administration, Nagpur shall take all the details from the Depot Manager or from the Authorized Person working at the Nagpur Depot of Cipla Pharmaceuticals about receipt of Tocilizumab Injections.
  • Joint Commissioner, Food and Drugs Administration, Nagpur shall also collect the data from the pharmacists to whom Tocilizumab Injections are supplied from the Nagpur Depot of Cipla Pharmaceuticals or from the Agent of Cipla Pharmaceuticals.
  • Depot Manager / Responsible Officer of Nagpur Depot of Cipla Pharmaceuticals and the agent and pharmacists shall furnish all the details to the Joint Commissioner, Food and Drugs Administration, Nagpur within two hours of receipt of the notice from the office of the Joint Commissioner, Food and Drugs Administration, Nagpur regarding that.
  • Agent of Cipla Pharmaceuticals at Nagpur and the pharmacists who are supplied Tocilizumab Injections and who have sold it shall also furnish the details to the Joint Commissioner, Food and Drugs Administration, Nagpur immediately.
  • If any of the above person fails to give the necessary details, the Joint Commissioner, Food and Drugs Administration shall take strict action against the erring person.
  • Details of availability of Tocilizumab Injections with the pharmacists shall be made available on the centralized portal which is being started by the Collector, Nagpur.

Court directed the Collector, Nagpur to examine whether beds can be made available for the needy patients at Mankapur Stadium, Nagpur and at Nagpur Nagrik Sahakari Rugnalaya.

For the above purpose, Collector, Nagpur may take the assistance of any officer of Nagpur Municipal Corporation or State Government.

Collector, Nagpur to submit a report regarding the feasibility of making available beds at Mankapur Stadium, Nagpur and Nagpur Nagrik Sahakari Rugnalaya till the next date.

Bench requested U.M. Aurangabadkar, ASGI to discuss the matter with the railway authorities concerned and ask them to interact with the Collector, Nagpur so that the facility which is not being properly utilized can be utilized to its optimum for the needy patients.

Matter to be listed on 10-04-2021. [Court on its own motion v. Union of India, Suo Motu PIL No. 4 of 2020, decided on 13-04-2021]


Advocates before the Court:

Shri S.P. Bhandarkar, Amicus Curiae

Shri U.M. Aurangabadkar, ASGI for Union of India

Shri M.G. Bhangde, Sr. Adv. a/b Shri D.P. Thakre, Addl. G.P. for State Shri S.M. Puranik, Advocate for NMC

Shri T.D. Mandlekar, Advocate for Intervener

Shri M. Anilkumar, Advocate for Intervener

Shri B.G. Kulkarni, Advocate for IMA

Case BriefsCOVID 19High Courts

Bombay High Court: The Division Bench of S.C. Gupte and Abhay Ahuja, JJ., permitted the distribution of Ayambil food to be served to the Jain devotees during their 9 days of fasting.

Petition sought a mandamus requiring Respondent-State and local authority to allow petitioners and other 58 Jain Trusts to open their temples for Jain devotees in keeping with Standard Operating Procedure (SOP) declared by the State.

The grievance of the petitioners concerned was that a special food called “Ayambil” to be served to their devotees during a period of 9 days fast commencing on 19th April 2021 for a religious penance called “Ayambil Oli Tap”.

Since, as per the State SOP order dated 13-04-2021, it was not permissible to open temples for worship by devotees, counsel for petitioners restricted the petition for catering to community devotees Ayambil food during the period of 9 days penance.

SOP of the State does not permit any dining hall to operate so as to allow in-room dining for any number of people. Hence, direction has been sought that respondents shall allow devotees to take away free of charge pious Ayambil cooked food from Jain Religious Trusts’ premises.

Bench opined that in view of the number of devotees to whom each religious trust may have to cater to, such delivery system may well be operated through volunteers not exceeding 7 in number by each concerned religious trust or through organized delivery chains who are permitted to deliver food under the State SOP.

High Court disposed of the petition in following terms:

  • Respondent-State shall allow the Petitioner trust together with 58 others to make use of the kitchens in their temples for preparation of special cooked pious food, Ayambil, and distribute the same to Jain devotees in accordance with the following manner during the penance days of ‘Ayambil Oli Tap’ commencing from 19 April 2021 and ending on 27 April 2021;
  • Each of the Petitioners and the trusts shall organize delivery of such cooked food through teams of volunteers not exceeding 7 persons for each trust or through professional distribution service agencies.
  • In preparing the food and executing its delivery, the trusts and their agents shall abide by the guidelines issued by the State
  • Name and particulars of the volunteers/delivery agents to be communicated to the jurisdictional police stations/authorities concerned
  • Under no circumstances, devotees shall be allowed to enter the temple premises for taking away pious Ayambil food allowed by this order

[Shree Trustees Atma Kamal v. State of Maharashtra, WP (L) No. 10154 of 2021, decided on 16-04-2021]


Advocates before the Court:

Mr. P.B. Shah a/w Ms. Gunjan Shah i/b Kayval P. Shah for the Petitioners.

Ms. Jyoti Chavan, AGP for Respondent Nos.1 and 2-State.

Ms. Rupali Adhate for Respondent No.3-MCGM.

Case BriefsCOVID 19High Courts

Bombay High Court: The Division Bench of R.D. Dhanuka and V.G. Bisht, JJ., held that offering of prayers only in the mosque during the period of Ramzan could not be considered due to the ongoing critical COVID situation which is serious in nature.

Petitioner sought direction to respondents to allow Muslims to offer 5 times prayers and Taraweeh namaz at the mosque from 14th April, 2021 till the end of Ramzaan adhering to social distancing and SOP’s in force.

Government of Maharashtra has issued an Order dated 13-04-2021 under the provisions of Disaster Management Act, 2005 stated that the State Government having been satisfied that the State of Maharashtra was threatened with the spread of COVID-19 Virus, and therefore it was imperative to take certain emergency measures to prevent and contain the spread of virus.

As per the Order, the State of Maharashtra had already enforced night curfew and restricted all activities except the activities falling under the essential category. State Government even banned all religious, social, cultural or political functions of any kind during the 14-04-2021 to 01-05-2021. It was specifically stated that the Religious Places of Worship shall remain closed. All the personnel engaged in the service of the place of Worship shall continue to perform their duties though no outside visitor shall be allowed.

In Court’s opinion, the restrictions were imposed after considering the prevailing circumstances and various other pros and cons.

Bench while expressing that Article 25 of the Constitution of India permits all persons equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion, the same is subject to public order, morality and health, held that:

such congregation which is apprehended by the State, if such permission is granted, it is likely that it would seriously affect the public order and health. If such permission is granted, it would violate the condition imposed under Article 25 of the Constitution of India.

In Delhi High Court’ decision of Delhi Waqf Board v. Government of NCT of Delhi, it was clearly stated that the Union of India had agreed for allowing the petitioners to offer prayers subject to following COVID norms.

Bench opined that Delhi High Court’s decision could not be taken as a precedent in the present case.

Considering the prevailing situation and the ground reality prevailing in the State of Maharashtra, Court cannot permit the petitioner to perform any prayers in the said mosque in violation of the order dated 13th April, 2021 issued by the Government of Maharashtra which is issued in the public interest and for the safety of all the residents of Maharashtra.

In view of the above discussion, a petition was dismissed. [Juma Masjid of Bombay Trust v. State of Maharashtra, WP (L) No. 10152 of 2021, decided on 14-04-2021]


Advocates before the Court:

Mr M. A. Vaid a/w Ms Shagufa Ansari, Ms Vidhya Seth i/by M/s. Vaid and Associates for the Petitioner.

Ms Jyoti Chavan, AGP for Respondent No.1-State.