SUPREME COURT

• NARCOTICS LAW

Narcotics Central Bureau Vs. Sukh Dev Raj Sodhi (Decided on 20.05.2011) MANU/SC/0650/2011

Conviction - Setting aside of - Non-compliance of mandatory provision - Section 50 of Narcotics Psychotropic Substances Act, 1985 (NDPS) - High Court set aside the conviction of the accused on ground that mandatory provision under Section 50 of NDPS Act had not been complied with and the violation of the Act had vitiated the conviction - Hence this appeal - Whether High Court was correct in holding that in non-compliance of statutory provision the whole conviction stood vitiated

Held , settled law that requirement of Section 50 of the NDPS Act is a mandatory requirement and the provision of Section 50 must be very strictly construed . In the instant case it appears that the requirement under Section 50 of the NDPS Act had not been complied with by merely informing the accused of his option to be searched either in the presence of a gazette officer or before a Magistrate. The requirement continues even after that and it is required that the accused person is actually brought before the gazette officer or the Magistrate. The Constitution Bench made it clear that in order to impart authenticity, transparency and creditworthiness to the entire proceedings, an Endeavour should be made by the prosecuting agency to produce the suspect before the nearest Magistrate. Hence, obligation under Section 50 of the Act has been discharged statutorily by the Appellant in this case. The appeal is, accordingly, dismissed.

• CRIMINAL LAW

Rajput Jabbarsingh Malaji Vs. State of Gujarat (Decided on 24.05.2011) MANU/SC/0664/2011

Conviction - Challenged against thereto - Additional Sessions Judge convicted the Appellant for offences Section 302 of Indian Penal Code, 1860 (IPC) and under Section 135(1) of the Bombay Police Act - High Court in appeal affirmed the Judgment of the Trial Court - Hence this appeal - Whether the High Court was correct in holding that the Judgment and Order of trial Court was correct and hence needed no interference

Held, Statements of PW 3 stands fully corroborated from the evidence of PW 5 and PW 6. Under Section 6 of the Indian Evidence Act, 1872 PW-5 and PW-6 were to be treated as Res Gestae witnesses and their evidence lends full support to the case of prosecution and corroborates the evidence of P.W.3. FSL report conclusively establishes that it was Appellant and only Appellant who had caused the fatal blow on the deceased. There could not have been any other better link connecting the Appellant with the commission of the said offence. The prosecution has fully established beyond shadow of any doubt that it was Appellant and none else who had caused the fatal blow on the person of the deceased which ultimately caused his death. No scope for any interference in the concurrent findings recorded by the two courts below. Appeal being devoid of any merit and substance, hence dismissed

Jaladhar Mondal Vs. State of West Bengal (Decided on 25.05.2011) MANU/SC/0663/2011

Conviction - Challenged against thereto - Appeal by the sole surviving Appellant against the Order of conviction by the Trial Court which was subsequently affirmed by the High Court for offences punishable under Section 302/201 and alternatively under Section304 B/398A of the Indian Penal Code, 1860 (IPC)

Held, evidence of Doctor PW-7 is relevant and reliable. Both the trial court and the High Court found it very strange that in a case of accidental fire, nobody other than deceased suffered burn injuries and none of the three inmates of the house suffered a scratch of an injury, even though the defiance case was that everybody was in the house at the time of accidental fire when the house caught fire. There is no evidence that any one of the inmates of the house even tried to save deceased from fire and in the process got injured. It is very strange that in such a fire the adjoining house, which was also covered by thatched roof and which belonged to PW-1, did not catch fire at all. All these facts were very correctly appreciated by the trial court and also by the High Court to come to the concurrent finding that death of deceased was caused by physical strangulation and then to cause disappearance of evidence of strangulation of deceased, her body was thrown in the flames, which was not accidental but was caused for the aforesaid purpose. Difficult for to interfere with such concurrent findings based on cogent reasoning and proper appreciation of the materials on record and the evidence of the case. Appeal dismissed

• PROPERTY LAW

Humanity and Anr. Vs. State of West Bengal and Ors. (Decided on 26.05.2011) MANU/SC/0662/2011

Allotment of Land - Government advertised for allotment of Land for the setting up of an integrated school from primary level to higher secondary level - Subsequently, a bigger plot was awarded to the allottee without any advertisement - Division Bench of High Court upheld the allotment of Plot and disposed the petition directing the allottee pay a sum of Rs. 43,25,500 to the State Government failing which the lease shall be treated as invalid Hence this appeal - Whether the impugned order of the Government vide allotment letter dated 17.2.2009 allotting a plot of 63.04 kathas of land in a prime area in Salt Lake City is an allotment which is different than the previous allotment of 50 kathas which was made to the allottee in Plot No. BF-158

Held, allottee in his letter dated 19th January, 2009 praying for such allotment, made it clear that he was applying for a plot of bigger area after surrendering the previous plot. No advertisement was issued and no offer was sought to be obtained from the members of the public in respect of the new allotment of a much bigger plot. This Court cannot persuade itself to hold that this allotment is in exercise of the right of the Government in the first advertisement dated 5th November, 2006, where the Government reserved its right to change the location of the land. The second allotment is not only about a change in the location of the land, but the subsequent allotment is also of a much larger plot of land, brought about in terms of the request of the allottee for a bigger plot. Further the ICSE norms were in place as early as 28th April, and those norms have been disclosed by the counter-affidavit filed by the allottee before this Court in the SLP filed by C.A. Block Citizens' Association. Therefore, much before the application was made by the allottee on 17th November, 2006, those norms were available on record. l is clearly against the ICSE norms. It is thus clear that the allottee is selectively seeking compliance of the ICSE norms only in asking for a bigger plot. In so far as other norms are concerned, they are clearly flouted as seen in the constitution of the Trust set up to run the school. The High Court cannot refuse to examine the challenge on the basis of what may happen in future. By doing so, High Court refused to exercise a jurisdiction which is vested in it. The Division Bench of the High Court, with respect, fell into an error by holding that by allotting plot No. CA-222 without open advertisement and public offer the Government action is not illegal or arbitrary. The order of allotment made in favor of the allottee, is quashed. In consequence thereof, the lease deed dated 1.4.09, pursuant to such allotment stands quashed. The allottee must, within two weeks from date, handover the peaceful and vacant possession of plot. The appeals are allowed.

HIGH COURT

• SERVICE TAX

Delhi High Court Bar Association Vs. Union of India and Others (Decided on 23.05.2011)

Legal Consultancy Services - Levy of Service Tax - Amendment to Section 65(105)(zzzzm) of the Finance Act, 1994  by the Finance Act, 2011 - Grant of Stay - Extension seeked thereof

Held, Respondents allowed to file counter affidavit within four weeks and Rejoinder affidavit to be filed within three weeks therefrom - Matter listed on 6th September, 2011 - Order of Stay to remain in force till the next date of hearing

• SERVICE LAWS

Savita Devi Vs. Union of India & Ors. (Decided on 26.05.2011) MANU/DE/2012/2011

Family Pension - Entitlement of - Rule 3(1) of CCS (Extraordinary Pension) Rules - Deceased/Petitioner husband was found dead when he proceeded for leave - Petitioner filed for Family Pension under the Army Pension Rules thinking that the said rule would govern the entitlement of pension - High Court held that the death of the husband of the petitioner was not arising out of and in course of employment, death being covered under category of CCS (Extraordinary Pension) Rules, admissible family pension to the petitioner would not be as per said rules and ,disposed of the Writ directing GREF authorities to consider the claim of the Petitioner under CCS (Extraordinary Pension ) Rules, 1990 - Hence this Appeal - Whether the death of the husband of Petitioner occurred as per the CCS (Extraordinary Pension) Rules

Held, co-joint reading of sub-rule (1) of Rule 3 of sub-rule 2 of Rule 3(A) would make it plain clear that an accident which is a sudden and an unavoidable mishap resulting in disablement or death would be required to be having a causal connection with the government service if the same is attributable or aggravated as clarified or elaborated by guidelines to be prescribed and as given in the Appendix . Herein, the instant case is concerned with Category A and Category C . Category A reads as " Death or disability due to natural causes not attributable to Government service. Category C states Death or disability due to accidents in the performance of duties. Some examples are accidents while travelling on duty in Government vehicles or public transport, a journey on duty is performed by service aircraft, mishaps at sea, electrocution while on duty, etc. Deceased was proceeding from his duty station to his leave station when he suffered the accidental death and thus, if this be so, he would be entitled to the benefit of the CCS (Extraordinary Pension) Rules had he survived and because he is dead, his wife is entitled to the benefit thereof. Hence, impugned order quashed and Respondent directed that while disbursing Family Pension element to the petitioner, the benefit payable to her under the CCS (Extraordinary Pension) Rules be extended inasmuch as the death of her husband would be a death falling under the Category C of the CCS (Extraordinary Pension) Rule. Appeal Allowed

• CRIMINAL LAWS

ALLAHABAD HIGH COURT

Shivalik Ghosh and Anr. Vs. State of U.P. and Anr. (Decided on 19.05.2011) MANU/UP/0940/2011

Summoning Order for Offences charged under Section 323, 328 and 376 of Indian Penal Code, 1860 - Challenge against thereto - A.C.J.M. took cognizance of the offences and registered case against the revisionist and summoned them to stand trial for those offences by passing impugned order - Hence this Revision - Whether the consent obtained on the basis of promise to marry which was not acted upon, could be regarded as consent for the purpose of Section 375 IPC

Held, consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. But, there is no strait-jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. If on the facts it is established that at the very inception of the making of promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of Section 375 clause second. Offence of rape can be made out against an accused, if the rape is committed against the will of the victim or her consent. There may be instances where the victim may consent for rapuit carnaliter cognovit without having a will for the same and vice versa. Genuineness of the allegations have to be tested on the touchstone of probability or improbability during the trial after affording fullest opportunity to the victim. In the instant case, after alluring the victim, her chastity was ravished under administration of intoxication. False promises were made subsequent to the said rape to shield skin from clutches of law by the accused. At no point of time, there was any love and affection between A1 and R2. In fact, victim was at the receiving ends because of rape committed upon her at the very first instance by A1. All subsequent promises were deceitful means to keep mouth of the victim shut and which promises were never intended to be fulfilled. Hence, no illegality or legal infirmity either of facts or that of law in the impugned summoning order, which has been passed on the basis of a charge sheet submitted against the revisionists after due investigation conducted in consonance with statutory provisions of law. Revision Dismissed and Revisionists directed to surrender and face trial.

PUNJAB AND HARYANA HIGH COURTS

Dr. K.K. Locham Vs. State of Punjab (Decided on 19.05.2011) MANU/PH/1442/2011

Application for Bail - Section 304 of Indian Penal Code, 1860 - Petitioner charged for death of 4 infants due to fire in the Nursery Unit in the Hospital was held vicariously liable for the grave negligence committed by his staff - Hence this Petition - Whether the Petitioner is entitled to Bail under present circumstances

Held, Petitioner is in judicial custody w.e.f. 20th February, 2011 and was not on duty on the date of incident it was prima facie duty of the doctor on duty and nurse on duty to remain present in the ward and to monitor the heater and phototherapy machine, therefore, there seems to be valid ground to enlarge the Petitioner on bail. Hence, as per facts and circumstances of the instant case, petition was allowed and Petitioner was enlarged on bail on furnishing his personal bond and two sureties to the satisfaction of the learned Chief Judicial Magistrate. Further, clarified that observation made herein is solely for the purpose of disposal of this petition for bail and not to be construed opinion on the merit of the case.

TRIBUNALS

• CONSUMER LAWS

National consumer disputes Redressal commission New Delhi

Group Captain Harjas Singh Bains (Retd.) Vs. Delhi development Authority (Decided on 27.05.2011)

Allotment of Flat - Deficiency in Service - Overcharge - Petitioner alleged that he was over charged in comparison to others in the flat allotted by the Respondent - District Forum partly allowed the claim of the Petitioner - State Commission in Appeal by the both parties annulled the relief granted to Petitioner by the District Forum, as the sum of Rs.25,872/- charged from him in December, 1998 - Hence this Petition - Whether Petitioner is liable to pay Rs.25,872/- as API on late payment of Rs.26,500

Held, Petitioner cannot be penalized for inefficiency or lapse of Respondent. Respondent had asked the Petitioner to furnish details after the lapse of 3 1/2 years . Respondent had certainly caused deficiency of service by charging Rs.25,872/- as API on late payment of Rs.26,500, which is entirely due to the fault of Respondent . The impugned order of the State Commission setting aside the order of District Forum for refund of Rs.25,872/- with interest @ 12% was passed without any basis nor any reason was given for upsetting the findings of the District Forum. Hence this Revision Petition allowed Respondent to get the adjustment for the payment made already to the petitioner in pursuance of the order of District Forum. Petition Disposed accordingly

• LAW OF DIRECT TAXATION

In The Income Tax Appellate Tribunal Visakhapatnam Bench, Visakhapatnam

Smt. K.Sathya Vani, L/R of Shri KV Ram Mohan Rao Vs. Assistant commissioner of Income Tax (Decided on 24.05.2011) MANU/IV/0157/2011

Penalty - Imposition Of - Violation of Section 44AA of the Income Tax Act, 1961 - CIT penalized the Assessee under Section 271 A of the Act, on ground that they had obtained contracts works on there name but executed the contract work through various partnership firms - Whether the Assesse could be penalized for non-maintenance of accounts book

Held, Though penalty under section 271A of the Act may be levied in different kinds of situation, in the instant cases, the Assessing Officer has levied the said penalty for failure to maintain the books of account in accordance with Sec. 44AA of the Act. Books of account maintained by the Assesse should enable the Assessing Officer to compute the total income of the Assesse . In the instant cases, though the Assesse has obtained contract works in his name, but he has executed the said contract works through various partnership firms that were floated by him. During the course of search and seizure operations only, the system of executing the contract works through partnership firms was found fault with as the Assesse could not explain the details relating to the partnership firms. Hence, the Assesse has declared the income derived from all the contract receipts in his hand, even though they have offered the income in the hands of various partnership firms. Only during the course of search, these a Assesse came forward to offer entire income in his hand by disregarding the partnership firms. Thus effectively the assessment of income derived from contract works has been shifted from the hands of partnership firms to the hands of Assessees herein. The said partnership firms have maintained the books of account . The penalty under section 271A of the Act is not leviable in the hands of the Assesse for the years under consideration. Hence the orders of learned CIT(A) and direct the Assessing Officer reversed . Appeals filed by the Assesse are Allowed.