Case BriefsSupreme Court

Supreme Court: The 3-judge bench of UU Lalit, CJ and S. Ravindra Bhat and PS Narasimha, JJ has granted bail to Journalist Sidhique Kappan after considering the length of custody undergone by him ever since he was taken in custody on 06.10.2020. It is important to note that, last month, the Allahabad High Court had rejected his bail plea.

The Kerala journalist was arrested under the Unlawful Activities (Prevention) Act on his way to Hathras, Uttar Pradesh to report on the alleged gang-rape of a Dalit woman, who later died in the Hospital. He has been booked under Sections 153A, 295A, 120B of the Indian Penal Code, Sections 17 and 18 of Unlawful Activities (Prevention) Act, 1967 and sections 65 and 72 of the Information and Technology Act, 2000. While the charge-sheet has already been filed on 02.04.202, the matter has yet not been taken up for consideration whether charges need to be framed or not.

While the Court refrained from dealing with and commenting upon the progress and investigation and material gathered by the prosecution in support of its case as the matter is still to be taken up at the stage of framing of charges, it directed that Kappan be produced before the Trial Court within three days; and that the Trial Court shall release him on bail, subject to such conditions as the Trial Court may deem appropriate to impose to ensure Kappan’s presence and participation in the matter pending before it. Apart from this, Kappan shall either in person or through a lawyer attend the proceedings before the trial court on every single date. He will also deposit his passport if not already deposited with the investigating machinery before his actual release.

The Court also imposed the following conditions on Kappan while releasing him on bail :

  1. For the first six weeks, Kappan has to stay in Delhi and within the jurisdiction of Nizamuddin police Station. He cannot leave Delhi without express permission of the trial court; He also has to record his presence in the concerned police station every Monday in a register maintained for the purpose.
  2. After six weeks, he may go back to his native place and stay at Mallapuram in Kerala but shall report at the local police station on every Monday and mark his presence in the register maintained in that behalf.

[Sidhique Kappan v. State of Uttar Pradesh, Crl.A. No.-001534-001534 / 2022, order dated 09.09.2022]


For Sidhique Kappan: Senior Advocate Kapil Sibal

For State: Senior Advocate Mahesh Jethmalani

Also Read

Charge-sheet and documents adduced prima facie point towards guilt; Allahabad High Court denies bail to journalist Sidhique Kappan [Hathras gang-rape row]

Delhi High Court
Case BriefsHigh Courts

   

Delhi High Court: In a case where a detenue filed for quashing of his detention order on the grounds of violation of constitutional mandate as laid down in Article 22 (5), a Division Bench of Siddharth Mridul and Rajnish Bhatnagar JJ., set aside the detention order as detenue is illiterate and the detention order must have been explained to him either in Hindi or any vernacular language, if he speaks or understands. Thus, the fact that he signed in English is not sufficient to form an opinion that he has full understanding of the language.

The present writ petition was filed under Article 226 read with Section 482 of Criminal Procedure Code (CrPC) seeking quashing of the impugned detention order passed by the Joint Secretary, Govt. of India u/s 3 (1) of Prevention of Illicit Traffic in Narcotics Drugs and Psychotropic Substances Act, 1988 (PITNDPS) and anorder passed by the Deputy Secretary, Govt. of India u/s 9(f) of the PITNDPS confirming the detention order for a period of one year.

Counsel for detenue submitted that there was no need to detain the detenue under PITNDPS as he is already in custody in a case under the stringent provisions of NDPS Act and there is no likelihood of his release from custody in the near future.

He further submitted that the detenue being an illiterate person, the order of detention was not properly communicated to detenue as the same is in English language.

The State opposed the petition contending that the detenuestated that “CD and CDR would be seen by his advocate” which goes to show that he understood everything, having the assistance of his advocate. It was further submitted that all the documents were signed by the detenue in “English” which clearly shows that the detenue understood the contents of the documents supplied and made the representation signed by his advocate.

Placing reliance on Chaju Ram v. State of Jammu & Kashmir, (1970) 1 SCC 536, Nainmal Partap Mal Shah v. Union of India, (1980) 4 SCC 427, Haribandhu Dass v. District Magistrate, Cuttack, (1969) 1 SCR 227, the Court noted that simply because the detenue has put his signatures in English does not by any stretch of imagination shows that he understands English and as a consequence understood the grounds of detention.

The Court further noted that the manner in which the signatures of the detenue were obtained on the documents, leaves no shadow of doubt that the contents of any of the documents/detention order were explained to the detenue in vernacular or the language that the detenue understands, i.e., Hindi. The detaining authority was under an obligation to communicate to the detenue the grounds of detention effectively and fully in a language in the present case “Hindi”, which the detenue understood even if that entailstranslation of the grounds to the language known to the detenue.

Thus, the Court held that where a detenue is illiterate, the mandate of Article 22(5) would be served only if the grounds of detention are explained to the detenue in a language that he understands, so as to enable him to avail the fundamental right of making an effective representation.

[Sharafat Sheikh v. UOI, 2022 SCC OnLine Del 2725, decided on 02-09-2022]


Advocates who appeared in this case:

Mr. Tanmaya Mehta, Ms. Shreya Gupta, Mr. Anurag Sahay and Ms. Mallika Bhatia, Advocates, for the Petitioner;

Mr. Chetan Sharma, ASG with Mr. Ajay Digpaul, CGSC with Mr. Soumava Karmakar, Mr. Kamal Digpaul with Mr. Rakesh Duhan, Inspector, Narcotics Cell, Crime Branch, Advocates, for the defendant.


*Arunima Bose, Editorial Assistant has put this story together.

Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: Krishan Pahal, J. dismissed the bail application of Sidhique Kappan, the journalist who was arrested along with three others in October 2020 while on his way to Hathras, Uttar Pradesh allegedly to report on the gang-rape and murder of a 19-year-old Dalit girl noting that he had no work being in Hathras and that there were reasonable grounds to believe that the accusations against such person are prima facie true.

The FIR alleged that the applicant and other co-accused persons were heading to Hathras where the ill-fated incident had been committed with an intention to create caste struggle and to incite riots. The said persons were said to have been collecting funds and running a website ‘Carrd.com’. There was another website operated by the laptop which had the heading ‘Justice For Hathras’. It was also found that the incident of mob lynching, exodus of labourers and the Kashmir issues were also highlighted through the same website. The website also imparts training pertaining to concealing one’s identity during demonstrations and to ways to incite violence. The matter was registered under Sections 153-A, 295-A, 120-B Penal Code, 1860, Sections 17, 18 of Unlawful Activities (Prevention) Act, 1967 and Sections 65 and 72 of Information Technology Act, 2000.

Senior Counsel for the applicant contended that no pamphlets or printing papers were being carried out by the applicant or other co-accused persons in the car and that the applicant was unaware of any website with the name of ‘Carrd.com’ and ‘Justice For Hathras’. It was submitted that the applicant was going to Hathras to discharge his duty as a professional journalist and was illegally detained by Police in violation of his fundamental rights. It was further submitted that the applicant is an honest journalist and does not post any biased reports on the basis of his political leanings. The applicant has written several journalistic reports on the plights of dalits and minorities, but none of them promotes any sort of rivalry between the communities.

State has vehemently opposed the bail application on the ground that the applicant is a resident of Kerala and has nothing to do with the incident of Hathras and had deliberately with malafide intent come with the co-accused persons and was arrested at Mathura. It was further stated that the co-accused persons had collected funds from foreign national mediums which was utilized by co-accused persons for illegal activities. The applicant was in regular touch with co-accused persons and there were call detail records (CDRs) to corroborate the same. It was submitted that during the search of the house of the applicant at New Delhi 47 papers in Malyalam language were recovered pertaining to Students’ Islamic Movement of India (SIMI). Two AK-47 guns were also shown in the said documents, which also contained the popular slogan of SIMI ‘Welcome Mohammad Gajni’.

The Court noted that after the investigation it came up that the applicant had no work in Hathras. The Court believed that the State machinery was at tenterhooks owing to the tension prevailing due to various types of information being viral across all forums of media including the internet and the sojourn of the applicant with co-accused persons who did not belong to media fraternity was a crucial circumstance going against him.

The Court nullified the defence made by the applicant of him being a journalist and visiting Hathras for work by the claims made by the prosecution in the charge sheet and stated that tainted money being used by the applicant and his colleagues cannot be ruled out.

The Court considered the case of NIA v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1 where the Supreme Court while overturning the High Court’s order of granting bail to the accused, had stated that Section 43(D)(5) prohibits a Court from granting bail to accused if on a perusal of a final report filed under Section 173 Cr.P.C., the Court is of the opinion that there are reasonable grounds to believe that the accusations against such person are prima facie true.

The bail application was dismissed considering the facts and circumstances of the case, nature of offence, evidence on record, complicity of accused, severity of punishment and the settled law propounded by the Supreme Court in the case of NIA v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1.

[Sidhique Kappan v. State of U.P., 2022 SCC OnLine All 511, decided on 02-08-2022]


Advocates who appeared in this case :

Mr I.B. Singh, Mr Ishan Baghel, Mr Avinash Singh Vishen, Advocates, Counsel for the Applicant;

Mr Vinod Kumar Shahi, Mr Shivnath Tilahari, Advocates, Counsel for the Opposite Party.


*Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Gujarat High Court: Rajendra M. Sareen, J. allowed a petition which was directed against the detention order passed by respondent–detaining authority in exercise of powers conferred under section 3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985 (“the Act”) by detaining the petitioner-detenue as defined under section 2(b) of the Act.

Advocate for the detenue submitted that the order of detention impugned in this petition deserved to be quashed and set aside on the ground of registration of the solitary offence/s under Sections 65-AE, 116-B 98(2) and 81 of the Prohibition Act by itself cannot bring the case of the detenue within the purview of definition under section 2(b) of the Act. Advocate for the detenue further submitted that illegal activity likely to be carried out or alleged to have been carried out, as alleged, cannot have any nexus or bearing with the maintenance of public order and at the most, it can be said to be breach of law and order.

Respondent State supported the detention order passed by the authority and submitted that sufficient material and evidence was found during the course of investigation, which was also supplied to the detenue indicate that detenue was in habit of indulging into the activity as defined under section 2(b) of the Act.

The Court after noting the facts and circumstances of the case was of the opinion that subjective satisfaction arrived at by the detaining authority cannot be said to be legal, valid and in accordance with law, inasmuch as the offences alleged in the FIR/s cannot have any baring on the public order as required under the Act and other relevant penal laws are sufficient enough to take care of the situation and that the allegations as have been levelled against the detenue cannot be said to be germane for the purpose of bringing the detenue within the meaning of section 2(b) of the Act.

Unless and until, the material is there to make out a case that the person has become a threat and menace to the Society so as to disturb the whole tempo of the society and that all social apparatus is in peril disturbing public order at the instance of such person, it cannot be said that the detenue is a person within the meaning of section 2(b) of the Act.

The Court also referred to the decision of the Supreme Court in Pushkar Mukherjee v. State of W.B., (1969) 1 SCC 10 where the distinction between ‘law and order’ and ‘public order’ had been clearly laid down.

The Court allowed the petition holding that simplicitor registration of FIR/s by itself cannot have any nexus with the breach of maintenance of public order and the authority cannot have recourse under the Act and no other relevant and cogent material exists for invoking power under section 3(2) of the Act. The impugned order by the respondent – detaining authority was quashed.[Dilip Bhavanishankar Yadav v. State of Gujarat, 2022 SCC OnLine Guj 409, decided on 17-03-2022]


for the Petitioner: Mr Jagdhish Satapara

for the Respondent: Mr RC Kodekar


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: Chandra Dhari Singh, J., granted bail while referring to a catena of Supreme Court decisions with regard to the law on bail.

An application under Section 439 of the Code of Criminal Procedure, 1973 was filed seeking regular bail in an FIR registered for the offences punishable under Sections 406/420/120B of the Penal Code, 1860.

Factual Matrix

In 2014, Auto Web approached the complainant at the office of HDFC Bank Limited for the grant of Credit Facilities in the nature of Inventory Funding and Cash Credit Facilities by the complainant. It was represented that Auto Web was the ‘Authorized Dealer’ of Hyundai and engaged in the business of ‘sales’ and ‘service’ of vehicles manufactured by Hyundai since the year 2013.

Complainants processed and sanctioned the credit facilities on the basis of the request and representation made by the director of Auto Web. Consequent thereto, the loan agreement was executed between the complainant and Auto Web, in relation to the credit facilities.

The stocks of the vehicles (inventory) were the primary security of the complainant, in addition to the cross collateral. Accordingly, from time to time, on the request of Directors, existing facilities were modified/enhances/renewed and other facilities were granted on the basis of the documents. In the balance sheets of Auto-Web, it was shown that the company was generating profits.

As per the last enhancement/renewal, the complainant had sanctioned an amount of Rs 15 Crores towards Inventory funding, Rs 1.50 crores as CC Limit and adhoc limits of Rs 3.50 crore to Auto Web duly utilized said limits sanctioned by the complainant.

Based on the request of the accused persons for disbursal of funds, the complainant used to disburse the amounts directly into the account of manufacturer, whereupon the stocks (cars) got released to the dealer, which stock was hypothecated to the complainant.

Further, in terms of the arrangement between the complainant and Auto Web, proceeds from the sale of the inventory (Cars) were to be credited into the inventory funding account of the dealer for the purposes of repayment of the limits utilized by the dealer.

In 2019, the officials of the Bank noted stress in the accounts of Auto Web and certain gaps in the stock audit report.

After a point of time, the directors of Auto Web failed to regularize the accounts and remained evasive and thereafter started avoiding contact with the bank officials.

In 2020, upon reconciling accounts, it was found that Auto Web utilized a major portion of the credit facilities granted by the complainant towards the purchase of 143 vehicles amounting to Rs 11,40,75,861 from Hyundai.

The Bank found that the vehicles available in stocks was much less than the inventory received from the manufacturer, pursuant to the disbursals made by Complainant. Hence, there was a gap of about Rs 11.45 crores which was not accounted for.

The stock of only 34 Vehicles at 2.35 Crores was found available with accused persons and Vehicles amounting to Rs. 11.45 Crores had been found to been fraudulently misappropriated.

Therefore, the vehicles worth more than 11 crores which were purchased from the funds made available by the complainant had been sold by the accused without crediting the sale proceeds into the inventory funding account of the Bank.

It was clear that the vehicles purchased from the funds of the complainant had been illegally sold without crediting the payments to the complainant and the sale proceeds had been criminally misappropriated.

Accused/borrower illegally removed all the hypothecated vehicles and misappropriated an amount of Rs 13,60,72,600.

The petitioner/applicant was arrested on 5-8-2021, therefore the bail application before the Additional Sessions Judge and the same was dismissed.

Analysis, Law and Decision

In the present matter, the wife of the petitioner/applicant filed an affidavit in pursuance of the order of this Court and disclosed the mode of repayment to the financial institutions at his place/address of residence once he was enlarged on bail.

The investigation had been completed, charge sheet had been filed and the petitioner languished in jail since 5-8-2021.

All the incriminating evidences/materials against the Petitioner/Applicant were documentary in nature and had already been seized by the investigating agency. As per the statutory provisions, the maximum sentence for the offence punishable under Section 420 of the IPC was upto seven years.

Supreme Court in Joginder Kumar v. State of U.P., (1994) 4 SCC 260, had dealt with the contours of Article 21 of the Constitution of India with regard to the arrest of an accused to the effect that the power to arrest cannot be exercised in isolation, and that it must have justification for the exercise of such power, as no arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person, without reasonable satisfaction reached after some investigation as to the genuineness and bonafides of a complaint and a reasonable belief qua the person’s complicity and the need to necessitate such arrest.

Further, in Arnab Manoranjan Goswami v. State of Maharashtra, (2021) 2 SCC 427, Supreme Court reiterated the value of the personal liberty enshrined under Article 21 of the Constitution of India. The Supreme Court further emphasized that the basic rule behind bail jurisprudence is “to bail not jail”. The Court went on to observe that it is our earnest hope that our courts will exhibit acute awareness of the need to expand that footprint of liberty and use our approach as a decision-making yardstick for further cases for the grant of bail.

High Court observed that the consequences of pre-trial detention are grave and keeping an under trial in custody would necessarily impact his right to defend himself during the trial in as much as he will be clearly denied the right to a fair trial, which was guaranteed under Article 21 of the Constitution.

Settled Law

The fraudulent and dishonest intention should be present since inception for an offence of Cheating.

In the present case, a non-payment of miniscule amount in comparison to the huge amounts paid over the years had been deliberately given a criminal colour.

Further, it was stated that since the investigation was complete, there was no apprehension of tampering with any documents, influencing witnesses or absconding from the trial. Hence, Court satisfied the triple test laid down by the Supreme Court in P. Chidambaram v. Directorate of Enforcement, (2020) 13 SCC 791.

Bench noted that it was an admitted fact that the evidence to be adduced in the instant case was substantially documentary in nature, which were already in the custody of the Investigation Agency. The petitioner had been languishing in jail for more than five months.

Conclusion

High Court opined that the petitioner should be enlarged on bail.

The Bench held that,

Let the petitioner be released on regular bail pending trial on his furnishing of personal bond in the sum of Rs. 1,00,000/- (Rupees One Lacs only) with two solvent sureties of like amount to the satisfaction of the Trial Court, subject to the further conditions as follows:-

(a) he shall surrender his passport, if any, to the Investigating Officer and shall under no circumstances leave India without prior permission of the Trial Court;

(b) he shall cooperate in the trial and appear before the Trial Court of the case as and when required;

(c) he shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case;

(d) he shall provide his mobile number(s) and keep it operational at all times;

(e) he shall drop a PIN on the Google map to ensure that his location is available to the Investigating Officer;

(f) he shall commit no offence whatsoever during the period he is on bail;

(g) In case of change of residential address and/or mobile number, the same shall be intimated to the Investigating Officer/Court concerned by way of an affidavit.

[Vikas Chawla v. State of NCT of Delhi, 2022 SCC OnLine Del 382, decided on 7-2-2022]


Advocates before the Court:

For the petitioner:

Mr Vikas Pahwa, Sr. Advocate with Mr Sumer Singh Boparai, Mr Abhishek Pati, Mr Sidhant Saraswat and Mr Shadman Siddiqui, Advocates

For the Respondent:

Ms Kusum Dhalla, APP for State Mr Tushar Jarwal, Mr Rahul Sateeja, Mr Ambar Bhushan and Mr Anurag Soan, Advocates for BMW Finance/Complainant

Mr Kunal Tandon and Mr Chetan Roy, Advocates for HDFC Bank/ Complainant

Case BriefsHigh Courts

Calcutta High Court: The Division Bench of Prakash Shrivastava, CJ and Rajarshi Bharadwaj, J., awarded compensation to a person who was remained in detention for almost 41 years without conclusion of the trial.

Instant suo motu petition was registered by this Court taking note of the factual situation that one person of Nepali origin was arrested and had remained in detention for almost 41 years without conclusion of trial, awaiting the report of appropriate authority as regards his mental status because apparently an issue was raised as to whether the said person was fit to withstand trial on a charge of having committed an offence.

With this Court’s intervention, the above-stated person was released and handed over to his relatives. But the fact remains that the said person was in detention without trial for almost 41 years.

In view of the above background, the issue of awarding compensation to the said person arose.

High Court directed respondent/State to pay a sum of Rs 5 lakhs by transferring the amount in the account of the said person by following due process of law.

Matter to be listed on 17-2-2022. [UTP Dipak Joshi, lodged in Dum Dum Central Correctional Home, In Re., 2021 SCC OnLine Cal 3020, decided on 7-12-2021]


Advocates before the Court:

Mr. Jayanta Narayan Chatterjee, Ms. Jayashree Patra

..for the SLSA.

Mr. Anirban Ray, Mr. Debasish Ghosh

..for the State.

Mr. Saikat Banerjee,

Ms. Juin Dutta Chakraborty, Mr. U.K. Roy

..for High Court Administration.

Case BriefsHigh Courts

Gujarat High Court: Paresh Upadhyay, J., allowed a petition which was filed against the order passed by the Commissioner of Police, Surat whereby the petitioner is detained under the Gujarat Prevention of Anti Social Activities Act, 1985.

Advocate for the petitioner had submitted that, mere filing of five FIRs against the petitioner itself was no ground, for the detaining authority, to arrive at the conclusion that the activities of the petitioner were prejudicial to the maintenance of the public order. It was further submitted that, no legally sustainable satisfaction was recorded by the detaining authority before passing the impugned order.

Assistant Government Pleader for the respondent State Authorities has supported the detention order passed by the detaining authority.

The Court found that the detaining authority had exercised the powers, treating the petitioner as a ‘dangerous person’ within the meaning of Section 2(c) of the Act. The five FIRs, which were the basis to treat the petitioner as such a person was referred to in the impugned order and further details in that regard were considered by the Court. The Court finally opined that the detaining authority fell in error in treating the activities of the petitioner as prejudicial to the maintenance of the public order.

It was noted that in the grounds of the detention, the detaining authority had recorded to the effect that, according to him, the activities of the petitioner created a sense of alarm and feeling of insecurity in the minds of public at large, however on weighing this vis-a-vis the material on record, this Court found that, the citation of such words was more in the nature of rituals rather than with any significance to the alleged activities of the petitioner.

The petition was allowed.[Keyur v. Police Commr., 2021 SCC OnLine Guj 1327, decided on 03-09-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


Advocates before the Court:

For the Petitioner: Mr Samir Afzal Khan

For the Respondents: Mr Shivam Dixit

Gauhati High Court
Case BriefsHigh Courts

Gauhati High Court: Ajit Borthakur, J., granted bail to an IIT student accused of raping his junior. The Bench stated,

“Both the informant/victim girl and the accused were the state’s future assets being talented students pursuing technical courses at the I.I.T., Guwahati, who were young in the age group of 19 to 21 years only, the continuation of detention of the accused was not necessary.”

The instant petition was filed by the accused, namely Utsav Kadam praying for grant of bail in connection with a rape case pending before the Addl. Sessions Judge. The accused was a youngster aged about 21 years and was a student of B. Tech Pre-final year of Indian Institute of Technology (‘I.I.T.’), Guwahati in chemical engineering.

The case against the accused was that on 28-03-2021 at around 9 p.m., the accused lured the informant/victim female student of the same educational institution to Aksara School premises, in the pretext of discussing about her responsibility as the Joint Secretary of the Finance and Economic Club of the students of the I.I.T., Guwahati and after making her unconscious, by forcibly administering alcohol raped her. The victim regained her consciousness at around 5 a.m., the next morning at Guwahati Medical College and Hospital, where she underwent treatment and forensic examination etc.

The petitioner contended that he had been in judicial custody for about 120 days in connection with the case, which was entirely based on assumption of commission of the offence of rape without any credible evidence. Therefore, it was urged by the petitioner that as the investigation had already been completed and as there was no chance of him jumping the course of justice in any manner, being a student of I.I.T., Guwahati, further continuation of his detention for the purpose of trial may not be warranted and that would amount to causing further damage to his brilliant academic pursuit.

While strongly opposing the bail application, Mr D. Das, counsel for the State contended that allegations made in detail by the victim girl, who was a student of 2nd year B. Tech Chemical Engineering of I.I.T., Guwahati, prima facie established a clear case in favour of the victim girl. Therefore, if liberty of bail was granted to the accused, the trial of the case was certain to be hampered, which may occasion gross injustice to the victim.

On hearing both sides and after considering relevant documents, i.e. FIR, medical report,  statements under Sections 161 and 164 Criminal Procedure Code, 1973, the contents of the charge-sheet and the Fact-Finding Committee Report etc., the Bench opined that there was a  prima facie case as alleged against the accused petitioner. However, as the investigation in the case was completed and both the informant/victim girl and the accused were the state’s future assets being talented students pursuing technical courses at the I.I.T., Guwahati, who were young in the age group of 19 to 21 years only the Bench was of the view that continuation of detention of the accused was not necessary.

Also, the Court stated that there was no possibility of the accused tampering with their evidence or influencing them directly or indirectly, if released on bail. Hence, the accused was directed to be released on bail of Rs. 30,000 with two sureties of the like amount.[Utsav Kadam v. State of Assam, Bail Appln. No. 1623 of 2021, decided on 13-08-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

Advocate for the Petitioner: Mr. K N Choudhury

Advocate for the Respondent: PP, Assam

Case BriefsHigh Courts

Gujarat High Court: Paresh Upadhyay, J., allowed the petitions which were filed apprehending detention under PASA in connection with the Complaint filed by the State Tax Department in the Court of the Chief Judicial Magistrate, under different sub-sections of Section 132 of the Gujarat Goods and Services Tax Act, 2017 and Central Goods and Services Tax Act, 2017 read with Section 120B of the Penal Code, 1860.

On 15-06-2021 it was informed to the Court that, atleast one of the petitioners could be detained under PASA, and while granting protection in favour of the petitioners, this Court had passed an order.

There was no response from the Finance Department of the State of Gujarat to the above-quoted query of this Court. Instead, affidavit in replies – all dated 22-07-2021 were filed on behalf of the Gujarat Goods and Services Tax Department, wherein, over and above giving details of the allegations against the petitioners, in the concluding part it was stated that, no proposal was made to detain the petitioners under PASA so far, by the State GST Department.

The Court was of the view that not only the query raised by the Court qua the citizen – the trader community, in this case, was not responded by the competent Authority from the Finance Department of the State, the sword kept hanging over the head of the traders, because it was replied by the GST Department that no proposal was made to detain the petitioners under PASA so far. Citizen can not be left in lurch like this.

When the State on the whole and the economy, in particular, is trying to regain the momentum post COVID, such hanging sword situation can not be permitted to continue.

The Court while allowing the petitions found that in the facts like this, the State Authorities can not be permitted to resort to the stringent provisions like detention under the Prevention of Anti Social Activities Act against the petitioners.[Amitkumar Rameshbhai Patel v. State of Gujarat, R/Special Civil Application No. 6465 of 2021, decided on 18-08-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


For the Petitioners: Mr Tejas M Barot

For the Respondent: Mr Hardik Soni

Case BriefsHigh Courts

Allahabad High Court: Yogendra Kumar Srivastava, J., dismissed the petition and rejected the issuance of writ of habeas corpus by a husband seeking production of his wife.

The facts of the case are such that petitioner 2, wife of petitioner 1, left her matrimonial home sometime in the month of June, 2019 on account of some serious differences with her husband (Petitioner 1) and an application for restitution of conjugal rights was filed by the Petitioner 1 which stands pending before the court of the Principal Judge, Family Court, Saharanpur.

Counsel for petitioners Mr Avinash Pandey submitted that sometime in the month of November, 2020 information was received by him suggesting that petitioner 2 was being detained at her parental home

Counsel for State submitted that petitioner 2 (wife) left her matrimonial home sometime in the month of June, 2019 on account of serious differences with her husband (petitioner 1), it is not a case of illegal and a writ of habeas corpus would not be entertainable.

The Court relied on Mohammad Ikram Hussain v. State of U.P., 1964 AIR 1625 and Kanu Sanyal v. District Magistrate Darjeeling (1973) 2 SCC 674 wherein it was observed that the writ of habeas corpus is a prerogative writ and an extraordinary remedy. It is writ of right and not a writ of course and may be granted only on reasonable ground or probable cause.

The Court further observed that the exercise of the extraordinary jurisdiction for issuance of a writ of habeas corpus would be dependent on the jurisdictional fact where the applicant establishes a prima facie case that the detention is unlawful. It is only where the aforementioned jurisdictional fact is established that the applicant becomes entitled to the writ as of right.

The Court held “the petitioner no. 2 having left her matrimonial home on her own on account of a matrimonial discord, the present petition seeking a writ of habeas corpus at the behest of the petitioner no. 1 (husband) would not be entertainable.”[Mohd Ahmad v. State of UP, 2021 SCC OnLine All 542, decided on 05-08-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In a case where the detenu was accused of committing a series of criminal offences from October, 2017 to December, 2019 such as cheating in the guise of providing good profit to people by investing their money in stock market and collecting huge amounts to the tune of more than Rs. 50 lakhs, the bench of RF Nariman and Hrishikesh Roy, JJ quashed the detention and held that in such a case,

“… at the highest, a possible apprehension of breach of law and order can be said to be made out if it is apprehended that the Detenu, if set free, will continue to cheat gullible persons. This may be a good ground to appeal against the bail orders granted and/or to cancel bail but certainly cannot provide the springboard to move under a preventive detention statute.”

The case that revolved around Section 3(2) of the Telangana Prevention of Dangerous Activities Act, 1986[1], led to a wider discussion on the true import of “public order” and the Court held that a possible apprehension of breach of law and order cannot be a ground to move under a preventive detention statute.

The Court explained,

“When a person is preventively detained, it is Article 21 and 22 that are attracted and not Article 19. Further, preventive detention must fall within the four corners of Article 21 read with Article 22 and the statute in question. To therefore argue that a liberal meaning must be given to the expression ‘public order’ in the context of a preventive detention statute is wholly inapposite and incorrect. On the contrary, considering that preventive detention is a necessary evil only to prevent public disorder, the Court must ensure that the facts brought before it directly and inevitably lead to a harm, danger or alarm or feeling of insecurity among the general public or any section thereof at large.”

Public order is defined in the Explanation to Section 2(a) of the Telangana Prevention of Dangerous Activities Act to be a harm, danger or alarm or a feeling of insecurity among the general public or any section thereof or a grave widespread danger to life or public health.

Explaining that the expressions ‘law and order’, ‘public order’, and ‘security of state’ are different from one another, the Court said that,

“Mere contravention of law such as indulging in cheating or criminal breach of trust certainly affects ‘law and order’ but before it can be said to affect ‘public order’, it must affect the community or the public at large.”

Further, while it cannot seriously be disputed that the Detenu may be a “white collar offender” as defined under Section 2(x) of the Telangana Prevention of Dangerous Activities Act, yet a Preventive Detention Order can only be passed if his activities adversely affect or are likely to adversely affect the maintenance of public order.

In the case at hand, what was alleged in the five FIRs pertained to the realm of ‘law and order’ in that various acts of cheating are ascribed to the Detenu which are punishable under the three sections of the Penal Code set out in the five FIRs. A close reading of the Detention Order showed that the reason for the said Order is not any apprehension of widespread public harm, danger or alarm but is only because the Detenu was successful in obtaining anticipatory bail/bail from the Courts in each of the five FIRs. In such circumstances, the Court held that,

“If a person is granted anticipatory bail/bail wrongly, there are well-known remedies in the ordinary law to take care of the situation. The State can always appeal against the bail order granted and/or apply for cancellation of bail. The mere successful obtaining of anticipatory bail/bail orders being the real ground for detaining the Detenu, there can be no doubt that the harm, danger or alarm or feeling of security among the general public spoken of in Section 2(a) of the Telangana Prevention of Dangerous Activities Act is make believe and totally absent in the facts of the present case.”

[Banka Sneha Sheela v. State of Telangana, 2021 SCC OnLine SC 530, decided on 02.08.2021]


*Judgment by: Justice RF Nariman

Know Thy Judge| Justice Rohinton F. Nariman

For petitioner: Advocate Gaurav Agarwal

For State: Senior Advocate Ranjit Kumar


[1] Telangana Prevention of Dangerous Activities of Boot-leggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders Land-Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual 1 Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act, 1986

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir High Court: Sanjeev Kumar, J. heard the instant petition against the impugned order passed by District Magistrate (the detaining authority), by which the petitioner had been detained in preventive detention to preventing him from indulging in the activities which were prejudicial to the security of Union Territory. The Bench expressed,

“Either there was lapse on the part of police to provide all relevant material to the detaining authority or there was lack of application of mind on the part of detaining authority.”

The impugned order had been passed by the detaining authority on the basis of material supplied by the SSP. As per the dossier supplied by the police, the petitioner had connections with one foreign militant namely Maz Bahi and was providing assistance to the militants of banned outfit Hizbul Mujahideen. It had been alleged that the petitioner was instrumental in strengthening militancy network in the area of Rafiabad. For which he had been apprehended in connection with case FIR No.161 of 2019 under Sections 18, 39 of ULA(P) Act and 7/25 Arms Act which is still under investigation.

The detaining authority, on the basis of dossier of activities arrived at satisfaction that the petitioner though under judicial remand, was every likely to indulge in subversive activities if he is admitted to bail, therefore, it was imperative to put him under preventive detention.

The petitioner has assailed the impugned order of detention, inter alia, on the following grounds:

  1. The grounds of detention were vague and indefinite and no prudent man can make an effective representation against these allegations;
  2. At the time of passing of the detention order, the detenue was already in custody in and he had neither applied for bail nor was bail otherwise due to him. The detaining authority despite having knowledge of the custody of the detenue has not spelled out any justified and compelling reasons to detain the petitioner under preventive detention;
  3. That the relevant material, like copy of dossier, FIR, statements under Section 161 and 164-A Cr. P. C, seizure memos etc. which had been relied upon in the grounds of detention, were never supplied to him to enable him to make an effective representation nor he was made aware of his right to make representation against his detention to the detaining authority or the government.

The Bench observed that the petitioner had been detained under preventive detention for his alleged involvement in subversive activities which led to the registration of FIR No.161 of 2019 under Sections 18, 39 of ULA(P) Act and 7/25 Arms Act. In the aforesaid FIR, the petitioner was released on bail by on 06-02-2020, whereas Superintendent of Police, who forwarded the relevant record including dossier and other connected documents to the detaining authority, did not bring the factum of petitioner having been released on bail to the notice of detaining authority. It was because of this omission on the part of Senior Superintendent of Police, the detaining authority had categorically stated in the grounds of the detention that the detenue was under judicial remand and that there was every likelihood of his being admitted to bail. The detaining authority had also noted that there was well-founded apprehension based on report received from field information that the petitioner, if released on bail, would again indulge in subversive activities.

The Bench opined that either there was lapse on the part of police to provide all relevant material to the detaining authority or there was lack of application of mind on the part of detaining authority. The Bench expressed,

“At the time of passing of the detention order, the detaining authority was not aware whether the detenue was in police/judicial custody or he stood released on bail. It cannot be denied that it was a relevant information that was required to be produced before the detaining authority to enable it to derive subjective satisfaction with regard to necessity of placing the petitioner under preventive detention.”

Hence, the non-application of mind by the detaining authority was fatal and affected the root of the detention and, therefore, the Bench held that the impugned order of detention was worthy of being quashed. Accordingly, direction were issued to the respondents to release the detenue from the preventive custody.

[Riyaz Khaliq Parray v. UT of J&K, 2021 SCC OnLine J&K 311, decided on 27-04-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

For the Petitioner: Adv. Wajid Haseeb

For UT of J&K: AAG Asifa Padroo

Case BriefsSupreme Court

Supreme Court: In the case where the State Advisory Board had heard a detenu on video conference, without any sufficient prior intimation to the detenu for preparation or arrangement for such hearing, the 3-judge bench of RF Nariman, BR Gavai and Hrishikesh Roy, JJ  has set aside the Detention Order is and has directed the immediate release of the detenu-petitioner. The Court said,

“… it is obvious that no effective hearing was given to the petitioner by the Advisory Board.”

Advocate Saurabh Kirpal, appearing for the petitioner had submitted before the Court that while in the matters of other detenus, the State Advisory Board had suo motu given advance permission to take assistance of a friend to represent their case, in the instant case the written communication of intimation dated 02.02.2021 of the hearing by the State Advisory Board sent by Fax to Jail Authorities was served in jail on or about 03.02.2021, just before commencement of video conference hearing by the State Advisory Board on the same date i.e. 03.02.2021 at 08:40 Hrs (scheduled at 08:30 Hrs).

It was argued that this was against the standard practice followed by the Central Advisory Board to give every detenu a fairly advance written intimation of the date of hearing before them, that too, with an option to keep an Advocate present for effectively representing his case.

Even the denial of specific request for furnishing translated copies and other material and information was also communicated only on or about 03.02.2021 along with the said intimation dated 02.02.2021 of hearing issued by State Advisory Board. Further, despite specific written request made in the representation, even brief reasons for rejecting every request made, were not communicated to the detenu. Nor was the detenu orally informed of the reasons.

“Such empty formality of hearing on video conference, without any sufficient prior intimation to the detenu for preparation or arrangement for such hearing, without permitting any time to seek assistance by any friend or advocate, that too when the detenu has no documents/materials/judgments in his hand, cannot be justified for preventive detention.”

As per the Advisory Board, the proceedings in the present case were conducted in accordance with the provisions of the COFEPOSA Act, 1974 and a memorandum dated 02/02/2021 regarding the hearing to be held on 03/02/2021 through Video Conferencing was communicated to the Superintendent Central Jail with a request to serve a copy to the detenu in accordance with which the  detenu participated in the hearing through Video conference and made his submission before the State Advisory Board.

In Hamida Sarfaraz Qureishi v. M.S. Kasbekar, (1980) 4 SCC 478, no reasonable notice about the date of meeting of the Advisory Board was given to the detenu. It was only about one or two hours before the scheduled time of the meeting of the Advisory Board that a police officer went to the hospital in which the detenu was confined, to inform about the meeting of the Board. Even that information was given only to the wife of the detenu for further transmission to the detenu who was then precariously ill and disabled from doing anything.

In the said case, under Section 11(1) of the PREBLACT, the authority concerned was peremptorily required to afford to the detenu a proper opportunity to be heard in person by the Advisory Board.

In such facts and circumstances, the Court had held,

“The so called opportunity of being heard in person by the Advisory Board, was a farce, and amounted to a negation of the right conferred on him under Section 11(1) of the Act.”

Following this judgment, the Supreme Court in the present case directed the immediate release of the detenu owing to the absence of effective hearing by the Advisory Board.

As per a report published by the Times of India, Bhargav Kanubhai Tanti was detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) for his alleged involvement in smuggling of 1300 kgs of Gold[1].

The Central Government after considering the opinion of the State Advisory Board that there is sufficient cause for the detention confirmed the detention order vide Order dated 25.02.2021 for a period of one year from date of detention i.e. from 16/12/2020.

[Sanjay Kanubhai Tanti v. The Superintendent, 2021 SCC OnLine SC 229, decided on 15.03.2021]

Appearance before the Court by:

For petitioner: Advocate Saurabh Kirpal


[1] Absconder in 1.3 tonne gold smuggling case arrested, https://timesofindia.indiatimes.com/city/ahmedabad/absconder-in-1-3-tonne-gold-smuggling-case-arrested/articleshow/79766651.cms

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir High Court: Rajnesh Oswal, J., while rejecting the present petition on lack of merits, said, “…this Court is of the considered view that the order of detention impugned has been issued by the detaining authority well within the parameters of law and no fault can be found with it and, as such, the same is upheld.”

Background

Through the medium of this petition, the petitioner has questioned the order of detention dated 04-07-2019 issued by the respondent 2 by virtue of which the petitioner has been ordered to be detained under the Jammu and Kashmir Public Safety Act, 1978.

 Issue

  1. Whether detaining authority followed the Constitutional and Statutory procedural safeguards as provided under Article 22(5) of the Constitution as well as Section 13 of the Public Safety Act?
  2. Whether detaining authority furnished the material relied upon them, that has deprived the petitioner of his right to make an effective and purposeful representation to the Government against the order of detention?
  3. Whether the order of detention has been passed on irrelevant, vague and non-existent grounds, as contended by the petitioner?
  4. Whether the detention order was approved within the statutory period?
  5. Whether it was mandatory for the respondent authorities to invoke the Public Safety Act and the same could not be dealt by procedure under criminal law?

 Observations

Upon the first issue, reliance was placed on the case of Abdul Latif v. B.K. Jha, (1987) 2 SCC 22, wherein it was held by the Supreme Court that the procedural requirements are the only safeguards available to a detenue since the court is not expected to go beyond the subjective satisfaction of the detaining authority. The procedural requirements are, therefore, to be strictly complied with, if any value is to be attached to the liberty of the subject and the constitutional rights guaranteed to him in that regard. With respect to the present facts and circumstances, the Court noted, “Despite having been informed about the grounds of detention and also furnishing of the relevant documents, the petitioner has not chosen to make any representation either to the Detaining Authority or to the Government. Thus, there is compliance of both the Article 22(5) of Constitution of India as well as section 13 of the Act.”

Addressing the second issue, the Court remarked, “The perusal of detention record reveals that the detention order, notice of detention and grounds of detention and other related documents, 21 in number, have been handed over to the detenue-petitioner on the date of execution of warrant of detention i.e. 10-07-2019 and the execution report has been duly signed by the petitioner… More so, from both the execution report as well as receipt of grounds of detention, it is evident that the grounds of detention were read over to the petitioner in English and explained to him also in Kashmiri language.” It was concluded by the Court that the petitioner was well aware of all the grounds of detention and was also supplied with the documents relied by the detaining authority and therefore any contention claiming otherwise shall be groundless and without merit.”

Answering issue no. 3, Court said, “…the detention order has been issued by the respondent No. 2 on various grounds duly supported by documentary evidence. The grounds cannot be considered as vague, non-existent or irrelevant. Even otherwise, when the detention order has been issued on various grounds and even if one of the grounds is un-sustainable, still the detention order can be sustained as the other grounds.”

To determine the fourth issue, Court placed reliance over the statutory provisions, in the words, “As per the mandate of section 15 of the Public Safety Act, the Detaining Authority within four weeks from the date of detention, has to place before the Advisory Board the grounds on which the order has been made and the representation, if any, by the person affected by the order. As per section 8(2) of the Act, when the order of detention has been issued under this section, the Detaining Authority has to send the order to the Government along with grounds of detention and other particulars as may be required and no detention order has to remain in force for more than 12 days after making thereof, unless it has been approved by the Government. The perusal of the detention record reveals that the detention order has been approved by the Government on 12-07-2019, that is, within the statutory period. More so, the case of the petitioner was also referred to the Advisory Board and the Advisory Board vide its opinion dated 23-07-2019 has opined that there are sufficient grounds for detention of the petitioner and it has also been observed that the detenue was informed of his right to make representation.”

Delving into issue no. 5, Court disagreed with the precedent relied by counsel for the petitioner, stating that, “…the petitioner has indulged in subversive activities prejudicial to the security of the State and such type of activities are not conducted openly but in clandestine manner” and therefore unlike the case relied on, the ordinary law of the land does not seem adequate to take care of such illegal activities. Reliance was further placed on Sasti v. State of West Bengal, (1972) 3 SCC 826, wherein the Supreme Court said, “The detaining authority might well feel that though there was not sufficient evidence admissible under the Indian Evidence Act for securing a conviction, the activities of the person ordered to be detained were of such a nature as to justify the order of detention. There would be no legal bar to the making of detention order in such a case. It would, however, be imperative that the incident which gives rise to the apprehension in the mind of the detaining authority and induces that authority to pass the order for detention should be relevant and germane to the object for which a detention order can be made under the Act. Even in cases where a person has been actually prosecuted in a Court of law in respect of an incident and has been discharged by the trying Magistrate, a valid order of his detention can be passed against him in connection with that very incident.”

 Decision

While rejecting the present petition, Court discussed at length, the requisites of a valid detention order and compliance of the same in the present case.[Asif Rashid Mir v. State of Jammu and Kashmir, 2020 SCC OnLine J&K 714, decided on 30-12-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ has refused to interfere with Allahabad High Court’s decision quashing Dr. Kafeel Khan’s detention.

The Court has, however, made clear that the observations in the judgment will not determine the outcome of the prosecution and that the criminal cases will be decided on their own merits.

After the Citizenship Amendment Act received President of India’s assent on December 12, 2019, which triggered protests across several parts of the country, Dr. Kafeel Khan and Dr. Yogendra Yadav addressed a gathering of protesting students at Aligarh Muslim University, Aligarh. On December 13, 2019, a criminal case was lodged against Dr. Khan under Section 153-A of the Indian Penal Code at Police Station Civil Lines, Aligarh. The offences under Section 153B, 109, 505(2) Indian Penal Code were added subsequently, and Dr. Khan was arrested on January 29, 2020.

Despite the release order by the Chief Judicial Magistrate, Aligarh dated February 10, 2020, Dr. Khan was neither released nor was produced before the Magistrate. Hence, another release order was issued on February 13, 2020.

However, on February 13, 2020 itself the District Magistrate passed an order to detain Dr. Khan in – accordance with National Security Act, 1980 after a request was made for the same by the Deputy Inspector General of Police/Senior Superintendent of Police, Aligarh.

The Allahabad High Court, in its judgment dated 01.09.2020, calling the detention illegal, said,

“In absence of any material indicating that the detenue continued to act in a manner prejudicial to public order from 12.12.2019 up to 13.02.2020 or that he committed any such other or further act as may have had that effect, the preventive detention order cannot be sustained. In fact, the grounds of detention are silent as to public order at Aligarh being at risk of any prejudice in February, 2020 on account of the offending act attributed to the detenue of the date 12.12.2019. What remains is a mere apprehension expressed by the detaining authority without supporting material on which such apprehension may be founded.”

The High Court also noticed that the grounds for detention along with material were to be supplied to Dr. Khan in light of clause (5) of Article 22 of the Constitution of India enabling him to submit representation to the competent authorities at earliest. However, the material so given was a compact disk of the speech delivered by Dr. Kafeel Khan on December 12, 2019 at Bab-e-Syed gate of Aligarh Muslim University. No transcript of the speech was supplied to the detenue. The High Court hence observed,

“The non-supply of transcript would have been of no consequence, if a device would have been supplied to the detenue to play the compact disk. It is the position admitted that no such device was made available to the detenue.”

Further, noticing that the orders of extension were never served upon the detenue, the High Court concluded that neither detention of Dr. Kafeel Khan under National Security Act, 1980 nor extension of the detention are sustainable in the eye of law.

It is pertinent to note that Dr. Kafeel Khan was also arrested in September, 2017 after an unfortunate incident resulted into the deaths of 50 children 2017 due to unexpected shortage in supply of liquid oxygen at the B.R.D. Medical College, Gorakhpur in the intervening night of 10/11 August. Dr. Khan was released on bail in April, 2018 by the Allahabad High Court.

[State of Uttar Pradesh v. Nuzhat Perween,  2020 SCC OnLine SC 1033, order dated 17.12.2020]

For Petitioner: Solicitor General Tushar Mehta

For Respondent: Senior Advocate Indira Jaising

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: In a peculiar case of illegal detention of a woman who happens to be the petitioner’s wife, Harinder Singh Sidhu, J., ordered for her release and for her to be reunited with the petitioner.

The instant habeas corpus petition has been filed under Articles 226/227 of Constitution of India by the petitioner (husband of detenue) seeking relief. The factual matrix in the present case is that petitioner had solemnized marriage with the detenue on 27-08-2020 at Sirsa. Respondents 4 to 7, detenue’s parents are relatives were against the marriage and had made their disapproval evident. During a post-marriage visit, detenue’s kin took her away with the assurance that they would drop her back at the house of the petitioner in a short while. Since then, the detenue has not returned and she has been illegally detained against her will by her family.

The Court after taking cognizance of the said matter directed the Superintendent of Police, District Sirsa to ensure the presence of the alleged detenue in the Court after which the detenue appeared in the Court accompanied by SHO/SI Sunita, Police Station Bada Gudha, District Sirsa. On being asked, the detenue stated in the Court that she has married the petitioner out of her own free will and that she is a major and wants to join the petitioner at her matrimonial home.

After careful consideration, the Court directed the SHO/SI to take the detenue and lodge her in the protection home at Sirsa and on a subsequent day, the petitioner would present himself at Police Station Bada Gudha, District Sirsa where he would be reunited with the detenue.

In view of the above, the petition has been disposed of.[Pass Ram v. State of Haryana, 2020 SCC OnLine P&H 1744, decided on 20-10-2020]


Yashvardhan Shrivastav, Editorial Assistant has put this story together

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir High Court: Rajnesh Oswal, J. allowed the application and enlarged the applicants on bail.

The applicants in the instant case were arrested for offences falling under Sections 8/21 and 29 Narcotic Drugs and Psychotropic Substances Act, 1985. It was alleged that the recovered contraband was heroin.

Counsels for the applicants, Mohd. Yaseer Choudhary, Syed Aaqib Mujtaba, and Ashfaq Mir argued that the said contraband, even if taken as a whole, didn’t fall within the category of commercial quantity and rather would fall within the category of the intermediate quantity. Further, the applicants had been in custody for more than eight months without trial because the proceedings not being conducted because of restrictions imposed due to COVID-19 pandemic and no witness has been examined by the trial court to date. It is further submitted that apart from the FIR, the prosecution didn’t bring forth any incriminating facts before the Court showing involvement of the applicants in any similar type of offences earlier.

The respondent-Union Territory objected by contended that filed the application was not maintainable for the reasons that to maintain a subsequent/successive bail application, change of circumstance is required. However, in the instant application, there is no change of circumstance rather the applicants are trying their luck before this Court. It was further contended that that the applicants did not deserve to be enlarged on bail as they are drug peddlers. This objection was raised by relying on the Supreme Court verdict in Kalyan Chandra Sarkar v. Rajesh Ranjan, (2005) 2 SCC 42.

The Court went the other direction and relied on another verdict of the Supreme Court in Jagmohan Bahl v. State (NCT of Delhi), (2014) 16 SCC 501 wherein it was held that the findings of the Court or higher court while rejecting the earlier bail application are to be considered when the bail application is filed subsequently either before the same court/ court of coordinate jurisdiction or before the subordinate court. Further, as a rule, the successive bail application is required to be heard by the same judge. Once the higher Court rejects the bail application, then the fresh bail application cannot be entertained by the subordinate court unless there is a change of circumstance/situation. Even before the same Court, the successive bail applications cannot be entertained on the same facts when the earlier bail application has been rejected. The principle of bar in entertaining successive bail application without change of circumstance shall apply in those cases where the subsequent bail application is filed before the same court or the court of co-ordinate jurisdiction. Thus if the bail application is rejected by the Court, the accused is well within his right to approach the higher court on similar facts for grant of bail but not vice-a-versa.

Furthermore, in Diwan Singh v. State of J&K, 2010(3) JKJ 367 it was held that once an anticipatory bail application is rejected by the Sessions Court on the same cause of action, fresh application before High Court can be filed.

Thus, the Court while pronouncing its decision stated that:

“The conclusion of the trial may take some time as there is no possibility of the conclusion of trial in near future so the applicants cannot be kept in custody for long time as a matter of punishment.”

Nevertheless, the Court also held that since the quantity of recovered contraband was an intermediate quantity, the rigors of Section 37 of the NDPS Act could not apply.[Liaqat Hussain v. Union Territory of J&K, 2020 SCC OnLine J&K 424, decided on 25-08-2020]

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir High Court: Ali Mohammad Magrey, J. quashed the detention order and allowed the petition as the Detaining Authority had failed to mention in the detention order about the petitioner’s right to make representation.

In the present appeal, Wajid Haseeb, counsel for petitioner vehemently opposed the detention order passed against him. The detenu is who is already facing trial before a competent court of law detenu was enlarged on bail by the competent court of law but despite such order, he was not released. It was further contended that owing to this, the possibility of the detenu to be implicated in anti-national protests, such as stone-pelting seems farfetched and grounds taken in the detention order and the material referred to and relied upon has no relevance as he wasn’t actually released. Furthermore, it was submitted that the absence of material the detention order is passed on mere ipsi dixit of detaining authority, therefore, the detention order is bad in law.

The Court relied on certain decisions of the Supreme Court to reach its verdict:

Khudiram Das v. State of W. B., (1975) 2 SCR 81 — the Supreme Court explained what is meant by ‘grounds on which the order is made’ in context of the duties cast upon the detaining authority and the corresponding rights accruing to the detenu under Article 22(5).

Icchu Devi Choraria v. Union of India, (1980) 4 SCC 531 — the Supreme Court has taken the view that documents, statements and other materials referred to or relied upon in the grounds of detention by the detaining authority in arriving at its subjective satisfaction get incorporated and become part of the grounds of detention by reference. The right of the detenu to be supplied copies of such documents, statements and other materials flow directly as a necessary corollary from the right conferred on the detenu to be afforded the earliest opportunity of making a representation against the detention, because unless the former right is available the latter cannot be meaningfully exercised.

The Court opined that the only precious and valuable right guaranteed to a detenu is of making an effective representation against the order of detention. Such an effective representation can only be made by a detenu when he is supplied the relevant grounds of detention, including the materials considered by the detaining authority for arriving at the requisite subjective satisfaction to pass the detention order. Since the material was not supplied to the detenu, the right of the detenu to file such representation was clearly impinged upon and the detention order stood resultantly vitiated. [Junaid Ahmad Dar v. State, 2020 SCC OnLine J&K 408, decided on 18-08-2020]

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir High Court: Puneet Gupta, J. dismissed the writ petition and set aside the detention order on the grounds that it did not stand the test of law.

According to the factual background of the present case, the petitioner has challenged the order passed by the respondent whereby the petitioner was detained under Section 8 of the J&K Public Safety Act, 1978, on the score that the petitioner has not explained the grounds of detention while passing the order thereby he was not in a position to make proper representations to the Government.

Further, Ankur Sharma, counsel on behalf of the petitioner contended that the impugned order lacks application of judicial mind and is a duplication of the dossier of the police.

The Court on taking note of the representations made by the petitioner and delving deeper into the facts and circumstances of the case reiterated certain Supreme Court verdicts which were noteworthy and applicable to not just the case at hand but also future cases.

Rajesh Vashdev Advani v. State of Maharashtra, (2005) 8 SCC 390 — Non-application of mind by the Court and duplication of police dossier attracts setting aside the said order passed by it.

Jai Singh v. State of J&K, (1985) 1 SCC 561 — A detention order encapsulating the same wordings as the dossier is liable to be quashed.

Union of India v. Dimple Happy Dhakad, 2019 SCC OnLine SC 875 — Subjective satisfaction of the detaining authority is not immune from judicial reviewability.

Nevertheless, the Court did not hesitate to point out the very underpinning purpose of a preventive detention order which is to prevent the person from committing the acts prejudicial to the maintenance of public order. The detention order cannot be passed in a casual manner by the concerned authority thereby depriving the person of his liberty. [Surinder Singh v. Union Territory of J&K, 2020 SCC OnLine J&K 394, decided on 11-08-2020]

Case BriefsSupreme Court

Supreme Court: After Solicitor General Tushar Mehta submitted before the bench of AM Khanwilkar and Dinesh Maheshwari that as of today only ten petitioners in the Tablighi Jamaat case have decided to contest the criminal cases pending against them and are not willing to exercise the option of plea bargaining, the Bench directed that the criminal cases concerning these ten petitioners pending in different Trial Courts in the NCT of Delhi be brought before the same Court i.e. to the Chief Metropolitan Magistrate, South-East Delhi, Saket Court Complex, Saket, so that all the cases can be disposed of expeditiously. It further directed the said Court to dispose of all the cases expeditiously preferably within eight weeks from today.

SG also submitted before the Court that  if the concerned petitioners tender apology, as envisaged by the Madras High Court in the concerned criminal case, the said petitioners can be permitted to leave India despite the pendency of the criminal case but subject to such orders that may be passed by the concerned Trial Court.

He also told that Court that the look out notices issued against the petitioner(s) before this Court stand withdrawn and that the concerned petitioner(s) will be free to leave India subject to any other pending proceedings including order passed by the Court requiring his/her presence in the stated proceedings.

The Court has listed the matter after 8 weeks.

Petitioners who are foreign nationals were arrested by respondent police on the ground that they had engaged in religious activities in breach of visa conditions. They defied COVID-19 lockdown norms as were imposed by the Government. In the norms, religious places were ordered for closure, yet the petitioners allegedly stayed inside the mosques in groups by defying the norms laid down by the Government.

Thus, in view of the above stated reasons, FIRs were lodged against the petitioners for committing offences under Section 13 and 14 of the Foreigners Act, 2014, Sections 188, 269, 270, 271 and 278 of IPC, Section 3 of Epidemic Diseases Act 1897, Section 58(4), 134, 135 of the Tamil Nadu Public Health Act, 1939 and Section 51(b) of the Disaster Management Act, 2005.

Madras High Court had, in it’s June 12 order said that the petitioners had come to India to serve the cause of their religion. Circumstances suddenly turned adverse and landed them in prison. They have spent more than 70 days in what are truly difficult conditions.

“Merely because the petitioners have contravened the visa conditions, they cannot be seen as criminals.”

[Maulana Ala Hadrami v. Union of India, 2020 SCC OnLine SC 629, order dated 06.08.2020]


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