Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu & Kashmir and Ladakh High Court: While dismissing the petition seeking release from preventive detention to the detenu involved in Pulwama conspiracy, Tashi Rabstan, J., remarked,

“Acts or activities of individual or a group of individuals, prejudicial to the security of the State or public order, has magnitude of across-the boarder disfigurement of societies. No court should tune out such activities, being swayed by passion of mercy.”

The District Magistrate had placed one Muntazir Ahmad Bhat under preventive detention with a view to prevent him from acting in any manner prejudicial to the security of the State. The case of the petitioner (father of the detenu) was that the detenu was arrested and detained under Section 8 of the J&K Public Safety Act, 1978 on false and flimsy grounds without any justification in terms of the impugned detention order.

The grounds of revealed that the detenu met with various terrorists of banned organisation, as Jaish-e-Mohammad (JeM) under whose influence the detenu developed radical ideology and had worked for their unlawful organization by extending all possible logistic support to the terrorists enabling them to carry out the terrorist attack in the area successfully. The detenu was a close accomplice of active terrorist namely Yasir Ahmad Parray. The detenu along-with the said Yasir Ahmad Parray had purchased a Maruti car in the year 2019 and on the instructions of one terrorist, a foreign original namely Junaid Bhat R/o Pakistan loaded the said Maruti car with IED and exploded it on the road near Arihal Village of District Pulwama by targeting patrolling vehicle of 44 RR and also indulged in indiscriminate firing upon the said army patrolling party with the motive and intention to kill them, resulting into martyrdom of 1 army person and injuries to various army personnel. Further, 1 HE-36 hand grenade was also recovered from the compound of detenue’s house.

Observing that there was a likelihood of the detenu recycling into subversive activities, the Bench opined that it will make difficult for the security forces to maintain the public order and safeguard the security of the State and to return the normalcy in the valley if the detenu is released for detention. The Bench remarked,

 “Those who are responsible for national security or for maintenance of public order must be the sole judges of what the national security, public order or security of the State requires.”

Further, holding that extremism, radicalism, terrorism have become the most worrying features of the contemporary life, the Bench expressed that though violent behaviour is not new, the contemporary extremism, radicalism, terrorism in its full incarnation have obtained a different character and poses extraordinary threats to civilized world. Hence, to keep a check on the illegal activities of the detenu the Bench dismissed the petition holding it to be devoid of merit. [Muntazir Ahmad Bhat v. UT of J&K, 2021 SCC OnLine J&K 900, decided on 12-11-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: G. N. Shaheen, Advocate

For the UT of J&K: Mir Suhail, AAG

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dr. DY Chandrachud, Indu Malhotra and KM Joseph, JJ has held that with the change in the manner of publishing gazette notifications from analog to digital, the precise time when the gazette is published in the electronic mode assumes significance and hence, in the scheme of the Customs Act, 1962, the Customs Tariff Act 1975 and the Bill of Entry (Electronic Integrated Declaration and Paperless Processing) Regulations 2018, the time at which the notification under Section 8A is published would indeed have relevance.

BACKGROUND

After the Pulwama terrorist attack on 14 February 2019, the Union Government, on 16 February 2019, issued a notification under Section 8A of the Customs Tariff Act 1975 introducing a tariff entry by which all goods originating in or exported from the Islamic Republic of Pakistan were subjected to an enhanced customs duty of 200%. The precise time at which the notification (Notification 5/2019) was uploaded on the e-Gazette was 20:46:58 hours.

The First respondent, a partnership firm based in Amritsar, engaged in the import of cement, imported a consignment of fourteen hundred bags of cement from Pakistan under an invoice dated 1 February 2019. Here’s the sequence of events that followed:

  • A truck crossed the ‘zero line’ on Saturday, 16 February 2019 with a Pakistan Custom’s Cargo Manifest bearing the time of 4:31 pm.
  • the goods entered Indian territory through the Attari border at Amritsar before 18:00 hours on 16 February 2019;
  • the importers had filed bills of entry under Section 46 of the Customs Act, before the close of working hours, seeking clearance of the goods for home consumption;
  • the value and description of the goods were declared;
  • the importers had self-assessed the goods in terms of the prevailing notifications and had filed the bills of entry in the EDI system;
  • the declarations were subject to verification by the customs department which did not dispute them and generated duty payment TR-6 challans;
  • since 16 February 2019 was a Saturday, the customs’ office was closed after 18:00 hours and was to open on Monday,18 February 2019;
  • some of the importers paid the duty online through TR-6 challans on 16 February 2019 while in the case of others, the payment of duty was in progress;
  • Notification 5/2019 was issued at 20:46:58 hours on 16 February 2019 following the Pulwama terrorist attack as a result of which the rate of duty on goods originating in Pakistan was enhanced to 200 per cent irrespective of the fact that some of the products had hitherto been exempt from customs duty; and
  • the customs authorities refused to release the goods on the basis of the bills of entry which were self-assessed at the pre-existing rate and proceeded to recall them and re-assess the goods to the enhanced rate of duty applicable under notification 5/2019.

SCHEME OF THE CUSTOMS ACT 1962 AND DETERMINATION OF THE RATE UNDER SECTION 15

  • Section 12 specifies that the rates of duty on goods imported and exported are those which are provided in the Customs Tariff Act or in any other law. Section 12 does not indicate when the duties under those enactments will come into being or force. Section 15 specifies the date with reference to which the rate of duty and tariff valuation of imported goods is determined. Clauses (a), (b) and (c) of sub-section (1) of section 15 contain distinct provisions which apply to:
    • goods entered for home consumption under Section 46;
    • goods cleared from a warehouse under Section 68; and
    • other goods.
  • In terms of the provisions of Section 15(1)(a), in the case of goods which are entered for home consumption under Section 46, the date of presentation of the bill of entry determines the rate of duty and tariff valuation.
  • Under Section 47(2)(a), the importer is obliged to pay the import duty on the date of the presentation of the bill of entry in the case of self-assessment. Regulation 4(2) of the Regulations of 2018 categorically stipulates when the presentation of the bill of entry is complete.
  • Once the bill of entry is deemed to have been presented in terms of Regulation 4(2) the rate and valuation in force stand crystalized under Section 15(1)(a).
  • Section 17(4) confers a power of re-assessment on the proper officer where it is found on verification, examination or testing of the goods or otherwise- that the self-assessment has not been done correctly.
  • The provisions of Section 15(1)(a) have to be read in conjunction with the provisions of Section 46 which are referred to in the former provision. Section 46 has incorporated a regime which encompasses the submission of the bill of entry for home consumption or warehousing in an electronic format, on the customs automated system in the manner which is prescribed.
  • The Bill of Entry (Electronic Integrated Declaration and Paperless Processing) Regulations 2018 stipulate the manner in which the bill of entry has to be presented. The deeming fiction in Regulation 4(2) of specifies when presentation of the bill of entry and ‘self-assessment’ are complete. The rate of duty stands crystallized under Section 15(1)(a) once the deeming fiction under Regulation 4(2) comes into existence.

Hence,

“the regulations have to be read together with the statutory provisions contained in Section 15(1)(a) and Section 46, while determining the rate of duty.”

‘DAY’ AND ‘DATE’ – INTERPRETATION OF

ASG K M Natraj submitted before the Court that because notification 5/2019 was issued on 16 February 2019, the court must regardless of the time at which it was uploaded on the e-Gazette treat it as being in existence with effect from midnight or 0000 hours on 16 February 2019.

The Court, however, refused to accept this submission and said.

“The consequence of this interpretation would be to do violence to the language of Section 8A(1) of the Customs Tariff Act, and to disregard the meaning, intent and purpose underlying the adoption of provisions in the Customs Act in regard to the electronic filing of the bill of entry and the completion of self-assessment.”

Noticing that the Regulation 4(2) of the 2018 Regulations provides for a deeming fiction in regard to the filing of the bill of entry and the completion of self-assessment, the Court said that it would do violence to the overall scheme of the statute to interpret the language of Section 15(1)(a) in the manner in which it is sought to be interpreted by the ASG.

EFFECT OF NOTIFICATIONS ISSUED IN E-GAZETTES

With the change in the manner of publishing gazette notifications from analog to digital, the precise time when the gazette is published in the electronic mode assumes significance. Notification 5/2019, which is akin to the exercise of delegated legislative power, under the emergency power to notify and revise tariff duty under Section 8A of the Customs Tariff Act, 1975, cannot operate retrospectively, unless authorized by statute.

It was, hence, held

“In the era of the electronic publication of gazette notifications and electronic filing of bills of entry, the revised rate of import duty under the Notification 5/2019 applies to bills of entry presented for home consumption after the notification was uploaded in the e-Gazette at 20:46:58 hours on 16 February 2019.”

Since, Notification 5/2019 was uploaded in the e-gazette at a specific time and date, it cannot apply to bills of entry which were presented on the customs automated EDI system prior to it, attracting the legal fiction set out in Regulation 4(2) of the 2018 Regulations.

RETROSPECTIVITY

The Court referred to a consistent line of precedents to carve out the distinction between the plenary power which is entrusted to Parliament and the state legislatures to enact legislation with both prospective and retrospective effect, and the power entrusted to a delegate of the legislature to frame subordinate legislation.

In Regional Transport Officer, Chittoor vs. Associated Transport Madras (P), (1980) 4 SCC 597, it was held that the fact that the rules had been framed in pursuance of a resolution passed by the legislature or that they have to be placed on the table of the legislative body would not lead to an inference that the legislature had authorized the framing of subordinate legislation with retrospective effect.

Hence, it was noticed

“This precisely is the principle which applies in construing whether the power which is conferred by Section 8A of the Customs Tariff Act is retrospective. The provisions of sub-sections (3) and (4) of Section 7, which are made applicable by sub-section (2) of Section 8A, are to ensure Parliamentary oversight. But that does not enable the Central Government to exercise the power under section 8A with retrospective effect.”

CONCLUSION

Dr. DY Chandrachud, J for himself and Indu Malhotra, J conclude:

In the present case the twin conditions of Section 15 stood determined prior to the issuance of Notification 5/2019 on 16 February 2019 at 20:46:58 hours. The rate of duty was determined by the presentation of the bills of entry for home consumption in the electronic form under Section 46. Self-assessment was on the basis of rate of duty which was in force on the date and at the time of presentation of the bills of entry for home consumption. This could not have been altered in the purported exercise of the power of re-assessment under Section 17 or at the time of the clearance of the goods for home consumption under Section 47. The subsequent publication of the notification bearing 5/2019 did not furnish a valid basis for re-assessment.

K.M. Joseph, J writing a separate but concurring opinion said

“It is one thing to say that the legislature may have the power to make a law with retrospective effect subject to limitations imposed by the Constitution and quite another to contend that delegated legislation would carry retrospective effect irrespective of power to make such a law conferred by the parent enactment on the delegate. More importantly the scheme of the Customs Act and the Tariff Act and the Regulation 4(2) of the 2018 Regulations rule out the tenability of applying the notification in the manner sought by the appellants.”

Hence, in the scheme of the Customs Act, the Tariff Act and the 2018 Regulations, the time at which the notification under Section 8A is published would indeed have relevance.

[Union of India v. G S Chatha Rice Mills, 2020 SCC OnLine SC 770, decided on 23.09.2020]

Legislation UpdatesNotifications

The National Human Rights Commission, NHRC, India has taken suo motu cognizance of media reports regarding attack on Kashmiri people, including students studying in various institutes at different places in the country in the aftermath of terrorist attack in Pulwama on CRPF convoy. The Commission has observed that the media reports on the incidents, if true, raise serious issue of violation of human rights. The contents therein are shocking and very disheartening.

Accordingly, it has issued notices to the Union Home Secretary and the Secretary, Union Ministry of Human Resource Development calling for reports in two weeks. Notices have also be also issued to the Chief Secretaries of the Governments of Uttar Pradesh, Uttarakhand, and West Bengal as well as the Commissioner of Police, Delhi calling for their reports on the incidents mentioned in the news reports within four weeks.

The Commission has further observed that giving such bad treatment by targeting people of a particular region of the country by some elements will destroy the democratic fabric of the country. India is one of the most religiously and ethnically diverse nations in the world and has a rich tolerant culture, which is identified and respected across the world. Such incidents would only tarnish the image of the country. The Central Government has to act quickly by taking action against the miscreants. There is a need for sensitization of local authorities, police agencies and the general public to maintain law and order at every cost.

It added that though there is an atmosphere of grief and anger across the country after the terrorist attack on the convoy of the CRPF in Pulwama in which 42 soldiers were martyred but even in extreme situation, a civilized society cannot accept such kind of violence by the people against their fellow countrymen. Rustication, suspension or action against the students, as mentioned in the news reports, can be a matter of investigation on merits but the incidents of ill-treatment of the Kashmiri people in different parts of the country is definitely in violation of Article 14 of the Constitution of India, which protects equality before the law and equal protection of laws within the territory of India.

According to the media reports, carried today on the 21st February, 2019, the Union Human Resource Development Minister, Mr. Prakash Javadekar has dismissed reports of alleged harassment of Kashmiri students outside their state in the wake of Pulwama terror attack and said that the government is in touch with all institutions in this regard. However, it has also been reported that two Dehradun based educational institutions have stated on record that they will not admit Kashmiri students in future as the colleges, where the Kashmiri students are studying, were threatened by the mob. At least 10 Kashmiri students have been booked and around 20 suspended or rusticated from colleges across the country for what officials called “anti-national” social media posts. Once of the colleges suspended its Dean from Jammu & Kashmir as the mob asked to do it.

As per media reports, several Kashmiri students, migrants, traders and professionals have had to pack up and leave from different parts of the country particularly, Uttarakhand and Haryana. As per media reports, a 19 year old girl from Pulwama, posted some contents in praise of Pakistan on her Instagram account and six students belonging to the same group were suspended by a university in Roorkee.

Apart from this, there are media reports stating that 34 workers had left Muzaffarnagar and some more are planning to leave as some members of “Bharatiya Kisan Union” protested outside the mill and demanded that Kashmiri workers should be sent back. The Union said that people abuse and throw stones at the soldiers in the valley and come here to take shelter, hence they should be sent back to the valley. As mentioned in the news report, a 22 year old worker has stated that there are very few jobs available in the Kashmir due to which Kashmiri youth prefer to come here to earn an honest living but now it has become very difficult to stay back.

The District Magistrate of Muzaffarnagar has reportedly stated that they do not have a count of Kashmiris working in the area and they have not received any official complaint either from the police or the mill authorities. He has however stated that due action will be taken if any kind of misconduct is noticed.

Another news report published in the newspaper reveals that two Kashmiri youths, who were travelling in a train were beaten up as the mob called them stone pelters. The victims have been selling shawls from Kashmir in Haryana. They are reportedly staying in Delhi since December, 2018 and have been conducting their business for the last 10 years. As the mob attacked them, they somehow managed to escape leaving behind their articles, valuing around Rs. 2 lakhs. Similar incident has occurred, reportedly, in Kolkata, West Bengal.

[Dated: 21-02-2019]

NHRC

Tribunals/Commissions/Regulatory Bodies

“The National Human Rights Commission is disturbed over the killing of more than 40 CRPF personnel in a terrorist attack on their convoy near Awantipora on the Srinagar-Jammu highway on the 14th February 2019 and condemns it. The scourge of terrorism is one of the major factors leading to violation of human rights in our society.

The Commission firmly believes that the acts of terrorism are an anti-thesis to the struggle for the protection of human rights. A loss of life of any innocent person, whether in force or a civilian, is a matter of violation of human rights.

Being an apex institution, committed to the promotion and protection of human rights of all, the NHRC, India appeals all to stand up in condemning such incidents that lead to death and destruction in place of brotherhood, development, peace, progress and prosperity. If we can question and make the security forces accountable for failing in their duties, we must also make those accountable who violate the human rights of the security forces committed towards nation building.

It is expected that the State will take note of the supreme sacrifice made by the personnel of CRPF in maintaining the rule of law and creating an environment of peace and security in the country, and the aggrieved families would be suitably compensated.”

[Press Release dt. 19-02-2019]

NHRC