‘Dubious that one would keep IDs in a bag along with contraband’ - Business Guardian
Connect with us

Legally Speaking

‘Dubious that one would keep IDs in a bag along with contraband’

The Himachal High Court bench observed that this creates a suspicion about the correctness of the prosecution story; as usually, an identity card is kept in a purse or pocket, not in a bag with contraband.

Published

on

While giving the benefit of the doubt by granting bail to an accused under the Narcotics Drugs and Psychotropic Substances Act, 1985, the Himachal Pradesh High Court in a learned, laudable, landmark, and latest judgment titled Ankit Ashok Nisar & Ors. v. State of Himachal Pradesh in Criminal Misc. Petition (Main) No. 957 of 2022, pronounced just recently on May 20, 2022, has said that it is highly unbelievable that the persons carrying a commercial quantity of contraband would keep documents relating to their identity in the same bag. Hon’ble Justice Sandeep Sharma was of the view that this creates a suspicion about the correctness of the prosecution story as usually an identity card is kept in a purse or pocket, not in a bag that too with contraband. There is no valid reason to not agree with what Justice Sandeep has said.
To start with, this brief, brilliant, bold, and balanced judgment authored by a Single Judge Bench comprising of Hon’ble Justice Sandeep Sharma of Himachal Pradesh High Court sets the ball rolling by first and foremost putting forth in para 1 that, “By way of instant petition filed under S. 439 CrPC, prayer has been made on behalf the bail petitioner namely Ankit Ashok Kumar, who is behind the bars for grant of regular bail in case FIR No. 315, dated 20.12.2020, under Sections 20 & 29 of the Narcotic Drugs and Psychotropic Substances Act (in short “the Act”) registered at Police Station Bhuntar, District Kullu, Himachal Pradesh.”
As we see, the Bench then states in para 2 that, “Respondent-State has filed status report and ASI Vij Ram, Police Station Bhuntar, District Kullu, Himachal Pradesh has also come Present with record. Record perused and returned.”
To put things in perspective, the Bench then envisages in para 3 that, “Close scrutiny of the record, as well as status report made available to this Court, reveals that on 19.12.2020, police party present at TCP Bajaura in connection with traffic checking, stopped Volvo Bus bearing registration No. HR38Z- 0003 for checking. Allegedly, the police party after having associated two independent witnesses, i.e. driver and conductor of the bus namely Pawan Kumar and Suresh Kumar, started checking of the luggage of the passengers. Since, the person sitting on seat No.3, got perplexed after having seen police and passed over one rucksack/Pithu bag to his co-passenger sitting on seat No.4, i.e. Mihi Ojha; and passenger sitting on seat No.4, tried to hide the same below his seat, police deemed it necessary to cause personal search of the passengers sitting on seat Nos. 3 & 4 as well as rucksack kept by them under their seats. On checking police allegedly recovered commercial quantity of contraband, i.e. 1.816 grams charas from the bag. Since, no plausible explanation came to be rendered on record qua the possession of aforesaid commercial quantity of contraband from the passengers sitting on seat Nos. 3 & 4, police after having de-boarded them from bus and after completion of necessary codal formalities, lodged FIR, detailed hereinabove against both the accused namely Mihir Oza and Ankit i.e. present bail petitioner and since then, present bail petitioner is behind the bars and co-accused Mihir Ojha stands enlarged on bail. Allegedly, both the above-named persons disclosed to the police during investigation that some unknown persons had handed over rucksack/Pithu to them for further delivering the same to somebody at Delhi and they were told that in lieu of that, they would get Rs.40,000/-. Since, police was not satisfied with the aforesaid disclosure made by above-named persons, it deemed necessary to investigate the matter with regard to financial transactions, if any, from the bank accounts of the persons named hereinabove. During investigation, police found that both the above-named persons sent Rs. 49,000/- each on 18.12.2020 to person namely Sonam Dorje, owner of Shanti Cafe situated at Kasol Manikaran. Apprehending that aforesaid transaction was made with regard to illegal trade of narcotics, police also interrogated Sonam Dorje, owner of the Shanti Cafe, who allegedly admitted that the aforesaid amount was received by him for sale/purchase of contraband allegedly recovered from the conscious possession of the persons, namely Mihir Ojha and Ankit, i.e. the present bail petitioner. Since investigation in the case is complete and nothing remains to be recovered from the present bail petitioner, he has approached this Court in the instant proceedings, for grant of regular bail.”
As it turned out, the Bench then points out in para 4 that, “It may be noticed that prior to filing of petition at hand, petitioner had earlier approached this Court by way of CrMP(M) No. 2469 of 2021, but the same was dismissed as withdrawn on 5.1.2022, reserving liberty to the petitioner to file appropriate proceedings in appropriate court of law at an appropriator stage.”
Frankly speaking, the Bench then states in para 5 that, “Mr. Sudhir Bhatnagar, learned Additional Advocate General while fairly admitting the factum with regard to filing of challan in the competent court of law, contends that though nothing remains to be recovered from the present bail petitioner, but keeping in view the gravity of the offences alleged to have been committed by him, he does not deserve any leniency. Mr. Bhatnagar further states that there is overwhelming evidence adduced on record by respondent-State suggestive of the fact that the bail petitioner transferred money in the account of person namely Sonam Dorje, who in turn provided them commercial quantity of Charas and as such, it cannot be said that they have been falsely implicated. While making this Court to peruse the record made available by investigating agency, Mr. Bhatnagar, also states that the commercial quantity of contraband was recovered from the bag of the present bail petitioner and co-accused Mihir Ojha in the presence of independent witnesses. He states that though independent witnesses were declared hostile, but if cross-examination conducted upon these witnesses is perused in its entirety, it clearly establishes the case of the prosecution and as such, prayer made on behalf of the petitioner deserves outright rejection.”
As things stand, the Bench then stipulates in para 6 that, “Having heard learned counsel representing the parties and perused the material available on record, this Court finds that the case of the prosecution is that on 19.12.2020, police officials present at TCP Bajaura stopped Volvo Bus bearing No. HR-38Z-0003 for checking and allegedly recovered one bag kept under seats Nos. 3 and 4 occupied by present bail petitioner and co-accused Mihir Ojha in the presence of two independent witnesses namely Suresh Kumar and Pawan Kumar, i.e. driver and conductor of the bus, but if the statements made by these witnesses in the trial court are perused juxtaposing each other, it creates serious doubt with regard to recovery of contraband that too, from the bag/luggage of present bail petitioner and co-accused Mihir Ojha. As per police, person sitting on seat No. 3, got perplexed after having seen the police and handed /passed over bag to his co-passenger sitting on seat No.4 i.e. Mihir Ojha, who in turn tried to hide the same below his seat, but such claim of the police is otherwise contrary to the fard/recovery memo, which reveals that the police officials pulled out the bag from below the seat of passengers sitting on seat Nos. 3 and 4 in the presence of independent witnesses. Both the above named independent witnesses have categorically stated that the bus was stopped for checking by Narco officials and bag was recovered from the rack over the seats No.3 & 4.”
Delving deeper, the Bench then lays bare in para 7 that, “PW-10 Suresh Kumar, stated that the officials searched the bus along with Pawan Kumar, i.e. Conductor of the Bus and recovered one bag kept on the rack above seat Nos. 3 & 4. He further deposed that police inquired the passengers as well as the conductor about the bag, but they disowned the same and thereafter officials took out black coloured bag inside TCP Bajaura, and on opening the same, black colour substance was found in the polythene packet. He deposed that police officials came after one and half hour on the spot and thereafter, papers were prepared by them. Police also procured our signatures on the papers and cloth. Since the passengers sitting in the bus were pressurizing them to take the bus, as such, they were allowed to take the bus. Though this witness was declared hostile, but cross-examination conducted upon this witness nowhere suggests that the prosecution was able to extract anything contrary to what this witness stated in his cross-examination. Though learned Public Prosecutor made a serious effort to get it extracted from this witness that bus was got stopped for checking by police officials, but repeatedly he voluntarily stated that the bus was stopped by Narco officials and after one and half hour police came on the spot.”
Furthermore, the Bench then discloses in para 8 that, “PW-11 Pawan Kumar, conductor of bus, deposed that when bus reached TCP Bajaura, officials signalled the bus to stop and told that they are Narco officials. This witness stated that they parked the bus on the side of the road and he and driver of bus got down from the bus; and 3-4 officials entered the bus. They checked the bus and found one bag in the bus. They inquired from the passengers about the bag and passengers disowned the bag. This witness further stated that thereafter officials of Narco asked him about the bag, then he again asked the passengers about the bag and they again disowned the same. He deposed that since the bag was found above seats Nos. 3 and 4, the officials suspected the passengers sitting on seat Nos. 3 and 4 and thereafter they took both the passengers alongwith bag to the room of TCP Bajaura. It is deposed by this witness that the officials opened the bag and found black coloured substance in a polythene bag and thereafter, the officials telephonically called the police officials, who came on the spot after one and half hour. Police officials interrogated the accused and thereafter, this witness was asked about their luggage. He took out the luggage of both the passengers, sitting on seat Nos. 3 and 4 and thereafter, police checked the same. He deposed that on a personal search of both the passengers, police recovered their PAN cards, DL and Aadhaar cards etc.”
Needless to say, the Bench then specifies in para 9 that, “If the statements made by the aforesaid independent witnesses are read in conjunction, it cannot be said that there are any inconsistencies and contradictions, rather both these witnesses in unison have stated that the bus was stopped by Narco officials and on checking contraband was recovered from the bag kept on the rack above the passengers sitting on seats Nos. 3 and 4, not from below the seats Nos. 3 and 4. Most importantly, PW-11 Pawan categorically stated that on personal search of both the passengers, police recovered their DL, Pan Cards, Aadhaar Cards etc.”
Most significantly and also most interestingly, the Bench then minces no words to hold in para 10 that, “Interestingly, the case of the prosecution is that DL, PAN Cards and Adhaar Cards of both the accused were recovered from the bag containing the contraband, which fact is totally contradictory to the statements made by independent witnesses. The record reveals that the police officials after having effected personal search of the accused prepared Fard/Jama Talashi and allegedly recovered wallet, watch, currency notes, one ATM card and One Mobile Phone. Once, the bail petitioner was found carrying the wallet, it is not understood, rather is highly unbelievable that a person would keep his driving licence and Aadhar card in a bag containing the contraband. Had one of the accused kept his driving licence or Adhaar card in the bag containing contraband, this court may have accepted that version, but it is highly unbelievable that both the accused had kept their Adhaar Card and DL card in the bag, allegedly recovered by the police, containing a commercial quantity of the contraband.”
Quite glaringly, the Bench then points out in para 11 that, “Leaving everything aside, independent witnesses namely Pawan Kumar PW-11 has categorically stated that DL, PAN Cards and Aadhaar Cards were recovered on personal search of the accused persons. Similarly, PW-10 has categorically stated in his examination-in-chief that the documents referred to hereinabove, were recovered by the Police during personal search of the accused persons. As per both the above said independent witnesses, bus for checking was stopped at the first instance by Narco officials, who in turn, after one and half hour of seizure of the contraband, telephonically informed the police. It is not understood why such facts are totally missing in the status report as well as the record made available to this court, rather, the specific case of the prosecution as has been canvassed before this Court is that the Police party at TCP Bajaura, stopped the vehicle for checking and allegedly recovered the commercial quantity of contraband, from the bag kept by the passengers sitting on Seats Nos. 3 and 4 below their seats. Both the independent witnesses have categorically stated that the bag was recovered from the rack above seats Nos. 3 and 4 and none of the passengers sitting in the bus owned the bag and as such, same was taken to TCP Bajaura and after some time, the police made the passengers sitting on seat Nos. 3 and 4 alight from the bus. No doubt, both these witnesses have admitted their signatures on recovery memo, but they have also stated that their signatures were obtained on blank papers and since the passengers sitting in the bus were pressurizing them to take the bus, as such, they were allowed to take the bus. These witnesses have also stated that since some of the passengers had to take flight from Chandigarh and were to appear in examination, police permitted them to take the bus and as such, they left the place. There is no cross-examination qua aforesaid aspect of the matter conducted by the prosecution upon these two witnesses, who nowhere supported the case of the prosecution.”
Be it noted, the Bench then mentions in para 12 that, “Learned Additional Advocate General, while inviting attention of this court to the visitors’ register of Shanti Cafe, contended that present bail petitioner along with co-accused Mihir Ojha not only visited Shanti Cafe with a purpose to purchase contraband from Sonam Dorje, owner of Shanti Coffee House, but in that regard, they also transferred money on-line. However, having carefully perused the visitors’ register, this court finds that all the entries except at Sr. No.71 have been made by one person, having specific handwriting, but the entry made at Sr. No.71 is altogether different from the entries made at other serial numbers. Aforesaid fact gains significance because of statement given by PW-9, Pawan, Cook working in the Shanti Coffee House. This witness deposed that on 17.12.2020, Ankit Kumar son of Ashok resident of Santosh Naggar, i.e. present bail petitioner, along with co-accused Mihir Ojha visited the Cafe and during the evening at 7.00 p.m made entry in the register in this regard and they departed from the Cafe on next day at 9/10 A.M. In his cross-examination, this witness admitted that there is cutting in the column of date and time of arrival (Ext. PW- 9/A) at Sr. Nos. 69, 71 & 72. He also admitted that in the column of date and time of arrival in Ext. PW-9/A, date “15” has been written over figure ‘19’, similarly, ‘18’ has been converted into ‘16’ at Sr. No. 70 and date ‘18’ has been written by cutting date ‘28’. Most importantly, this witness in his cross-examination self stated that three police personnel had come to Cafe and asked him to make entry at Sr. No. 71 in the register and he has done so at their instance.”
Of course, the Bench then observes in para 13 that, “No doubt, financial transactions placed on record by the prosecution reveals that the present bail petitioner and co-accused Ashok Ankit, transferred some amount in the name of Sonam Dorje, but that may not be sufficient to conclude complicity, if any, of the bail petitioner in the case, especially, when they specifically set up a case that they do tour, travelling and event management business.”
Most commendably, the Bench then hastens to add in para 14 that, “Though the case at hand is to be decided by learned trial court in the totality of the facts and evidence led on record by prosecution, but keeping in view aforesaid glaring aspects of the matter, especially with regard to mode and manner of recovery coupled with the fact that both the independent witnesses have nowhere supported the case of the prosecution that the bag containing contraband was recovered from below the seats Nos. 3 and 4, this Court sees no reason to let bail petitioner incarcerate in jail for an indefinite period during trial.”
It cannot be lost on us that the Bench then adds in para 15 that, “Leaving everything aside, as has been taken note hereinabove, it is highly unbelievable that the persons carrying/transporting commercial quantity of contraband, would keep documents relating to his/her identity in the bag containing contraband, which itself creates suspicion with regard to correctness of the prosecution story, as normally, Aadhaar card is kept in purse or pocket not in the bag.”
What’s more, the Bench then enunciates in para 16 that, “Since, in the case at hand, commercial quantity of contraband came to be recovered, rigors of Section 37 are attracted, but bare perusal of Section 37 of the Act, nowhere suggests that there is complete bar for this Court to grant bail in cases involving commercial quantity, rather, in such like cases, court after having afforded an opportunity of being heard to the public prosecutor can proceed to grant bail in cases involving commercial quantity, if it is satisfied that the accused has been falsely implicated and there is no likelihood of his indulging in such activities again during the trial. In the case at hand, for the facts/reasons noted/stated hereinabove, this Court has a reason to presume and believe that recovery is doubtful and perusal of the status report clearly reveals that at present no other case save and except the case at handstands registered against the bail petitioner under Narcotic Drugs & Psychotropic Substances Act.”
Truth be told, the Bench then concedes in para 17 that, “Hon’ble Apex Court, as well as this Court in catena of cases, have repeatedly held that till the time, the guilt of a person is proved in accordance with the law, he/she is deemed to be innocent and as such, no fruitful purpose would be served by keeping the bail petitioner behind the bars for an indefinite period during the trial, especially when nothing remains to be recovered from him. The apprehension expressed by learned Additional Advocate General that in the event of bail petitioner being enlarged on bail, he may flee from justice, can be best met by putting him to the stringent conditions.”
While citing the relevant case law, the Bench then observes in para 18 that, “Hon’ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr decided on 6.2.2018 has held that freedom of an individual can not be curtailed for an indefinite period, especially when his/her guilt is yet to be proved. It has been further held by the Hon’ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty.”
While citing yet another relevant case law, the Bench then states in para 19 that, “Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49 has held that gravity alone cannot be a decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It has been repeatedly held by the Hon’ble Apex Court that the object of bail is to secure the appearance of the accused person at his trial by a reasonable amount of bail. The object of bail is neither punitive nor preventative.”
Still more, the Bench then mentions in para 20 that, “In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218, Hon’ble Apex Court has held that the object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise, also, the normal rule is of bail and not jail. Apart from above, Court has to keep in mind nature of accusations, the nature of evidence in support thereof, the severity of the punishment, which conviction will entail, the character of the accused, and circumstances that are peculiar to the accused involved in that crime.”
Not stopping here, the Bench then encapsulates in para 21 that, “The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496, has laid down various principles to be kept in mind, while deciding petition for bail viz. prima facie case, nature, and gravity of accusation, punishment involved, apprehension of repetition of offence and witnesses being influenced.”
As a corollary, the Bench then directs in para 22 that, “In view of above, bail petitioner has carved out a case for himself, as such, present petition is allowed. Bail petitioner is ordered to be enlarged on bail, subject to furnishing bail bonds in the sum of Rs.2.00 Lakh with one local surety in the like amount, to the satisfaction of the learned trial Court, besides the following conditions: (a) He shall make himself available for the purpose of interrogation, if so required, and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from the appearance by filing an appropriate application;
(b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;
(c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and
(d) He shall not leave the territory of India without the prior permission of the Court.”
For sake of clarity, the Bench then notes in para 23 that, “It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail.”
Finally, the Bench then concludes by holding in para 24 that, “Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this petition alone. The petition stands accordingly disposed of.”
All told, the Single Judge Bench comprising of Hon’ble Justice Sandeep Sharma has accorded cogent, convincing, and calculated reasons for according bail to NDPS accused as has already been discussed hereinabove. This is an example of how courts are expected to function in our democracy. No doubt, legal eagles will study what the Himachal Pradesh High Court has laid down in such a comprehensive manner in a matter concerning justice and freedom of a citizen.

The Daily Guardian is now on Telegram. Click here to join our channel (@thedailyguardian) and stay updated with the latest headlines.

For the latest news Download The Daily Guardian App.

Legally Speaking

Supreme Court: Commercial Transactions Outside Purview Of Consumer Protection Act 1986

Published

on

The Supreme Court in the case Annapurna B. Uppin And Ors. Versus Malsiddappa And Anr. observed wherein the complaints is filed seeking recovery of the investment from which the complainant is deriving benefit in the form of interest cannot be entertained under the Consumer Protection Act of 1986. The bench comprising of Justice Vikram Nath and Justice Satish Chandra Sharma in the case observed and has stated that it was a commercial transaction (investment) and therefore also would be outside the purview of the 1986 Act.

The court in the case stated that Commercial disputes cannot be decided in summary proceeding as stated under the 1986 Act but the appropriate remedy for recovery of the said amount, if any, admissible to the complainant respondent No.1, would be before the Civil Court. Thus, the complaint was not maintainable. The aforesaid observations came in the judgement authored by Justice Vikram Nath while deciding the civil appeal preferred by the appellants, the Legal heirs of the partner of the firm against the decision of the National Consumer Dispute Redressal Commission, NCDRC.

The present case relates to the alleged for the non-payment of the respondent no.1, the investment amount by the appellant(s). The respondent also had invested an amount of Rs. 5 lakhs in the partnership firm, wherein the husband of appellant’s was a partner to be repayable after 120 months with interest @ 18% per annum.

On the other hand, the Respondent No. 1 sought for the premature release of the invested amount but was asked to wait till the maturity period and when the amount was not returned even after the end of the maturity period, thus, he filed a consumer complaint claiming the said amount. Therefore, the Forums at various levels allowed the respondent No. 1 i.e., complaint, following which the appellant approached the Supreme Court.

Arguments:

It was also contended before the court Supreme Court by the appellants that the transaction to invest in the partnership firm was commercial and the consumer complaint filed seeking recovery of the investment made by respondent no. 1. Would not be maintainable under the 1986 Act. It has also been contended by the appellants that the complainant could not seek the recovery of the investment because when the investment was made by respondent no.1, he was the partner of the firm.

Further, it was contended before the court by respondent no.1 that the refusal of the appellants to return the investment amounted to a deficiency of service and therefore, the complaint was maintainable. It also being the case of respondent No.1 that the appellants herein inherited the estate of the Managing Partner Basavaraj Uppin, and hence cannot escape the liability of making the payment due to respondent No.1.

Observations Made By Supreme Court:

The court while finding force in the appellant’s contentions held that the complaint seeking recovery of the investment would not be maintainable under the old act. The court in the case noted that respondent no.1 would not benefit from the complaint as he was the partner of the partnership firm during the period of the investment made by him.

The court observed that this court is of the considered opinion that once there was a registered partnership deed dated May 27,1996, there is no further document which is placed on record by the complainant-respondent No.1 with regards to the dissolution of the said registered deed which continued till the time when the investment was made by the complainant respondent No.1 on May 21, 2002 and hence the complainant respondent No.1 would be deemed to be partner of the firm.

Deceased Partner Liability Do Not Passes Upon Its Legal Heirs:

The court in the case rejected respondent no.1 or complainant argument that being the legal heirs of the Managing Partner of the firm, the appellants cannot escape from the liability owed by the Managing Partner. It has also been stated by the said court that the legal heirs of a deceased partner do not become liable for any liability of the firm upon the death of the partner.

The court in the case observed that there was no evidence on record in order to show that a fresh partnership deed was executed reconstituting the firm in which the present appellants had become partners so as to take upon themselves the assets and liabilities of the firm. Further, the court stated that the law is well settled that legal heirs of a deceased partner do not become liable for any liability of the firm upon the death of the partner.

The court while considering the facts and circumstances of the case allowed the appeal and the complaint preferred by the complainant or respondent No. 1 was set aside. Accordingly, the court allowed the appeal. The counsel, Mr. C. B. Gururaj, Adv. Mr. Prakash Ranjan Nayak, AOR Mr. Animesh Dubey, Adv. Mr. Debendra Ghosal, Adv. Appeared for the Petitioner(s). The counsel, Mr. Chinmay Deshpande, Adv. Mr. Anirudh Sanganeria, AOR represented the respondent(s).

Continue Reading

Legally Speaking

Former AAP Minister Moves Delhi High Court, Seeks Removal Of Kejriwal From CM’s Post

Published

on

In the case Sandeep Kumar v. Arvind Kejriwal and Others, the Delhi High Court observed a petition filed by Aam Aadmi Party MLA Sandeep Kumar seeking the removal of Arvind Kejriwal from the post of Chief Minister of Delhi. Arvind Kejriwal is presently in judicial custody related to an Enforcement Directorate (ED) case concerning the excise policy. This is the third petition seeking such a prayer, with the previous two pleas being rejected by the Division bench headed by Acting Chief Justice Manmohan.

Sandeep Kumar approached the court as a Court of first instance in writ jurisdiction, not as a Public Interest Litigation (PIL), in his individual capacity. He, being a lawyer by profession, claims to be a founding member of the Aam Aadmi Party and a social worker.

The plea filed seeks the issuance of a writ of quo warranto against Kejriwal, calling upon him to show by what authority, qualification, and title he is holding the office of the Chief Minister of Delhi. Additionally, the plea prays for an inquiry to dislodge Kejriwal from the office of the Chief Minister, with or without retrospective effect.

Kumar claims that as a voter of the Delhi Assembly Election, he is personally aggrieved for having a Chief Minister for his Union Territory who has incurred an ‘incapacity to hold the post’ and ‘who can never function as the Chief Minister from custody or prison’ as envisaged by the Constitution of India.

The petitioner argues that Kejriwal has incurred an incapacity to carry out his functions as the Chief Minister of Delhi under the Constitution and therefore, he cannot hold the post. The plea emphasizes that the right to have a government in accordance with the Constitution is a Constitutional Right of every citizen and voter.

Arvind Kejriwal was arrested on the night of March 21 and subsequently remanded to judicial custody until April 15. However, the court refused to entertain a Public Interest Litigation (PIL) seeking Kejriwal’s removal from the post of Chief Minister, observing that there is no scope for judicial interference in the matter, and it is for other organs of the State to examine the issue.

Continue Reading

Legally Speaking

Delhi High Court Reserved Verdict On Arvind Kejriwal’s Plea Challenging ED Arrest In Liquor Policy Case

Published

on

The Delhi High Court in the case Arvind Kejriwal v. Directorate Of Enforcement observed and has reserved verdict on the plea moved by Chief Minister Arvind Kejriwal challenging his arrest by the Enforcement Directorate, ED in the money laundering case related to the alleged liquor policy scam case.

The bench headed by Justice Sharma in the case observed and has denied any interim relief to Kejriwal and only issued notice on his plea challenging the arrest, as well as his interim application seeking immediate release.

In the present case, Kejriwal is currently in judicial custody. Kejriwal was being arrested on the night of March 21.

The Trial Court in the case remanded him to six days of ED custody, which was extended by further four days. On April 01, he was remanded to judicial custody till April 15.

It has been stated by the Enforcement Directorate, ED that Kejriwal is the kingpin and the key conspirator of the excise scam and there were reasons to believe on the basis of material in its possession that he was guilty of the offence of money laundering.

It has also been alleged that the Aam Aadmi party was the ‘major beneficiary’ of the proceeds of the crime and has committed the offence through Kejriwal.

The response stated that, the Aam Aadmi Party, AAP is the major beneficiary of the proceeds of crime generated in the Delhi Liquor Scam. The Sh Arvind Kejriwal was and is not only the brain behind the AAP but also controls its major activities, he was also one of the founding members and was also involved in the decision making of the policy as evident from the statements of the witnesses.

Arguments:

The counsel, Additional Solicitor General SV Raju told the Court that investigation qua the sitting CM is at a nascent stage. Thus, he also pointed that Kejriwal has not challenged the latest order remanding him to 15 days judicial custody. He has also challenged the first remand order. Please look at the remand order of 26 March. Today we are on April 3. The second remand order is passed on March 28. That has not been challenged. Thus, the third remand order of judicial custody has not been challenged. So today his custody isn’t pursuant to arrest or first remand order, it’s pursuant to April 1 order which has not been challenged. Therefore, Raju also wondered if Kejriwal can challenge his remand since he did not oppose it. ‘He voluntarily accepts please remand me further. Can he challenge the remand order? Or is it barred by waiver? They are blowing hot and cold at the same time. You cant challenge the remand order and say please pass the order and accept it. They have not challenged the latest orders pursuant to which he is in custody. Thus, custody can’t be said to be illegal.”

The counsel, Senior Advocate Abhishek Manu Singhvi appearing for Kejriwal argued before the court that the central probe agency did not comply with Section 50 PMLA which empowers it to issue summons, collect evidence, etc. thus, it being clear that section 50 involves an inquiry. Because it’s inquiry which enables ED to make up mind about arrest and prosecution. No attempt is made to record my section 50 even at my residence. While pointing out the remand application he added ED wants to “find out” the role of Chief Minister. ‘Surely that’s not a ground for today’s arrest… There has to be specific role of the petitioner, even for the company, which I’m denying.’

On the other hand, it has been argued by the ASG that the fact that a PMLA offence has taken place is clear and beyond any doubt. Because as far as first Police Custody and subsequent Police Custody is concerned, court has taken cognizance… Categorical finding that there is money laundering. Cognizance of the offence of money laundering. Nobody has challenged the order.

It has also been contended by the Singhvi that ED forced the approvers Raghav Magunta, Sarath Reddy and Magunta Reddy to make statements against Kejriwal. Further, it has been alleged that two approvers even have links with the ruling party. Adding to it, Singhvi stated that initial statements that did not implicate Kejriwal are not even put on record by the ED. ‘These statements are kept in unrelied. Why should the court not see it? Is it fair? What cannon of fairness are you carrying ED? Out of 13 statements by this Reddy. He says nothing in 11 statements. The judge will go by one statement?’

He also questioned the necessity of arrest amid upcoming general elections. The test is not can arrest. It is demonstrating the necessity to arrest. The should arrest test. The necessity to arrest immediately before elections… the only object is to insult, humiliate and disable… So that the petitioner is unable to participate in the election process and to try to demolish the party before the first vote is cast. The timing reeks of basic structure issue, free and fair election issue and democracy issue. What is this urgency or necessity?

Further, Singhvi stated that it said to be a flight risk, given his deep roots in the society. Responding to this ASG stated that, supposing a political person commits murder two days before elections. This means he can’t be arrested? Basic structure comes into play? Criminals are supposed to be arrested and put in jail. In such cases there is no infringement of basic structure.

Further, it has been argued by ASG that calculation was done as to why 5 percent profit was made 12 percent in the new policy. “Only inference is that it was done so that 7 percent of portion is used for giving kickbacks. The fact that there is a scam is beyond doubt. Howsoever hue and cry you make, its a fact that a scam was there… Finding of the actual proceeds of crime is irrelevant if we make out a case that you were involved in money laundering.

Facts of the Case:

Kejriwal had skipped nine summons issued to him by ED. The Aam Aadmi Party leaders Manish Sisodia and Sanjay Singh are also accused in the case and are presently in judicial custody. While following his arrest, Kejriwal had promptly moved an urgent petition before the Supreme Court challenging his arrest. However, the same was withdrawn later. Kejriwal has previously moved the Delhi High Court, the division bench wherein it challenged the summons issued to him by the central probe agency. He has also filed an application seeking interim protection. The matter is fixed for hearing on April 22. The Kejriwal has skipped the summons, claiming that they are illegal.

It has also been alleged by the ED that Arvind Kejriwal is the ‘kingpin’ of Delhi excise scam and is directly involved in the use of proceeds of crime accounting to over Rs. 100 crores. It being the case of ED’s that the excise policy was implemented as part of a conspiracy to give wholesale business profit of 12 percent to certain private companies, although such a stipulation was not mentioned in the minutes of meetings of Group of Ministers, GoM. Further, it has also been claimed by the Central agency that there was a conspiracy that was coordinated by Vijay Nair and other individuals along with South Group to give extraordinary profit margins to wholesalers. According to the agency, Nair was acting on behalf of Chief Minister Arvind Kejriwal and Manish Sisodia.

Continue Reading

Legally Speaking

Delhi High Court CM Arvind Kejriwal’s ED Custody extended By 4 Days Till April 1 In Liquor Policy Case

Published

on

The Delhi High Court in the case Surjit Singh Yadav v. Union Of India observed and has remanded the Chief Minister Arvind Kejriwal to Enforcement Directorate, ED custody till April 01 in the money laundering case which relates to the alleged liquor policy scam case. Arwind Kejriwal was being arrested on the night of March 21, 2024. The Special CBI judge Kaveri Baweja of the Rouse Avenue Courts passed the order after Kejriwal was produced in court on the expiry of his six days of Enforcement Directorate, ED custody.

The Delhi High Court in the case declined any interim relief to Kejriwal and only issued notice on his plea challenging the arrest and remand. The counsel, Additional Solicitor General SV Raju told the court that the sitting CM was giving “evasive replies” during interrogation and the agency needs to confront him with some individuals who have been summoned from Goa. Thus, ED sought 7 more days of custody. He doesn’t get exonerated if he is a CM. There is no different standards for a CM. Right to arrest a CM is no different from an ordinary man.”

Yesterday, the Enforcement Directorate, ED summoned AAP’s Goa unit chief Amit Palekar and some other party leaders for questioning. Thus, they have been asked to appear at the agency’s Goa office on March 28, 2024. Further, the Kejriwal while appearing in person submitted before the court that he is not opposing remand. He claimed the entire case is a ‘political conspiracy’ and there is no such material against him. It has also been alleged by the Delhi CM that the central probe agency was collecting selective material and even the approver was forced to make a statement against him. Further, the central probe agency submitted before the court that Kejriwal has refused to share the password of his mobile phone.

Adding to it, Kejriwal responded that ED cannot force him to unlock his electronic gadgets. Delhi High Court Rejected PIL For Removal Of Arvind Kejriwal From Post Of Chief Minister The Delhi High Court rejected the Public Interest Litigation, PIL moved seeking removal of Arvind Kejriwal, who has been arrested by the Enforcement Directorate, ED in the liquor policy case, from the post of Chief Minister of Delhi. The Division bench comprising of Acting Chief Justice Manmohan and Justice Manmeet Pritam Singh Arora in the case observed and has stated that the petitioner failed to show any bar in the law which prohibits the arrested CM from holding office. The CJI orally stated that, ‘Show us, where is the prohibition. Show us any legal bar which you’re canvassing’.

Further, the bench stated that there is no scope for judicial interference in the matter and the executive is examining the issue. The court in the case observed that if there is a constitutional failure, President or Governor will act on it…Is there any scope for judicial interference in this? The LG is examining the issue. It will go to the President. It belongs to a different wing. There is no scope for judicial interference in this. In the present case, the petition is moved by one Surjit Singh Yadav, a Delhi resident claiming to be a farmer and social worker. It has been claimed by him before the court that a Chief Minister accused of a financial scandal should not be permitted to continue in public office. Kejriwal is presently in ED custody which ends on March 28, 2024. It has been submitted by Yadav in the PIL that Kejriwal’s continuation in the post would not only lead to obstruction of due process of law and disrupt the course of justice, but also would lead to a breakdown of the constitutional machinery in the State as Kejriwal does not satisfy most of the limbs of Article 163 and 164 of the Constitution of India owing to his incarceration.

Further, the plea stated that the Respondent No.4 has virtually forfeited his office as a Chief Minister of account of being arrested and as he is in the Custody he has disabled himself from performing the duties and responsibilities of being a public servant and as such he ought not to continue as a Chief Minister. Therefore, the AAP Ministers have been making statements in the media that Kejriwal will not resign from the post and if need be, he will run the government from inside the prison.

It has been submitted by Yadav that a jailed CM would be incapable of transacting any business that the law enjoins upon him and if he is allowed to do so, any material, irrespective of its secretive nature, would have to be scanned thoroughly by the prison authorities before it reaches Kejriwal’s hands and such an act would amount to direct breach of oath of secrecy administered to the CM under the Third Schedule of the Constitution. Further, the plea stated that the Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993 empowers a CM to call for files from any department of the Cabinet and if Kejriwal continues as CM, he would be well within his rights to demand for the investigation of files wherein he has been arraigned as an accused.

The plea states that, such a situation is against the ethos of Criminal Jurisprudence. Therefore, Yadav had prayed the Court to issue a writ in the nature of Quo Warranto, calling upon Kejriwal to answer under what authority he is holding the post of CM and consequently remove him. However, Yadav has also filed another PIL seeking to prevent Kejriwal from issuing directions or orders while in ED custody. About The Case: The Kejriwal had skipped nine summons which were issued to him by the Enforcement Directorate, ED.

The Aam Aadmi Party leaders Manish Sisodia and Sanjay Singh are also accused in the case and are presently in judicial custody. The Kejriwal while following the arrest of him had promptly moved an urgent petition before the Supreme Court challenging his arrest. Later, the same was withdrawn. Therefore, Kejriwal has previously moved the Delhi High Court (division bench) challenging the summons issued to him by the central probe agency. Further, the Kejriwal has also filed an application seeking interim protection.

The matter was fixed for hearing on April 22. It has been alleged by ED that two criminal complaints had been filed against Kejriwal in city’s Rouse Avenue Courts alleging non-compliance of the summons by him. Kejriwal has skipped the summons, claiming that they are illegal. It has been alleged by the ED that Arvind Kejriwal is the ‘kingpin’ of Delhi excise scam and is directly involved in the use of proceeds of crime accounting to over Rs. 100 crores.

It being the case of ED that the excise policy was implemented as part of a conspiracy to give wholesale business profit of 12 percent to certain private companies, although such a stipulation was not mentioned in the minutes of meetings of Group of Ministers, GoM. It has been claimed by the Central Agency that there was a conspiracy that was coordinated by Vijay Nair and other individuals along with South Group to give extraordinary profit margins to wholesalers.

Continue Reading

Legally Speaking

Supreme Court: Plea To Stay Citizenship Amendment Act

Published

on

The Supreme Court in the case was hearing the application filed to stay the Citizenship Amendment Act 2019 and the Citizenship Amendment Rules 2024.

The bench comprising of CJI DY Chandrachud, Justice JB Pardiwala and Justice Manoj Misra was hearing the present matter. In the present case, the court was hearing the 237 writ petitions challenging the CAA, filed in 2019.

Therefore, these petition before the Court on October 31, 2022. The Union Government notified the Citizenship Amendment Rules 2024 to implement the CAA and notified the formation of committees at the State or UT levels to process the applications on March 11.

The petitioner are Political party Indian Union Muslim League (IUML, the lead petitioner in the case), Democratic Youth Front of India (DYFI, youth wing of the CPI(M)), All Assam Students Union, Assam opposition leaders Debrabata Saika and Abdul Khaleque, State of Kerala, AIMIM head Asaduddin Owaisi, Socialist Democratic Party of India etc.,

The Senior Advocate Kapil Sibal told the court that there was no question of a pause back then since the rules were not notified. Adding to it, Solicitor General Tushar Mehta then said that the fact that the rules were notified before the elections was irrelevant.

The party leader Jairam Ramesh has stated that, the pposition has slammed the Narendra Modi government over the timing of the law’s implementation – four years after it cleared the Parliament. The move is “evidently designed to polarise the elections, especially in West Bengal and Assam”.

Further, the Trinamool Congress chief and Bengal Chief Minister Mamata Banerjee stated that she doubts the legality of CAA and alleged a conspiracy to “snatch citizenship rights. The Bengal Chief Minister Mamata Banerjee says that, BJP leaders say CAA gives you rights. But the moment you apply for citizenship, you become illegal migrants and you will lose your rights. You will lose rights and be taken to detention camps. Please think before you apply. The Centre has trashed the Opposition’s allegations. Stressing that the CAA is not “unconstitutional”, Home Minister Amit Shah has accused the Opposition of resorting to the “politics of lies”.

Amit Shah stated that, On the timing of the law’s implementation, “BJP made it clear in its 2019 manifesto that it will bring CAA and provide Indian citizenship to refugees (from Pakistan, Bangladesh and Afghanistan). BJP has a clear agenda and under that promise, the Citizenship (Amendment) Bill was passed in both houses of Parliament in 2019. It got delayed due to Covid.” Further, Amit Shah stated that, minorities of the country “need not be afraid because CAA has no provision to take back the rights of any citizen”.

Court Hearing:

The bench passed an order appointing separate nodal counsels for petitions which relates t0o States of Assam and Tripure. The Adv Ankit Yadav appointed for the petitioners’ side and Adv Kanu Agarwal for the Petitioners.
Sibal: the moment something like this happens, give us liberty to move here.
CJI: We are here.
Jaising : Would your lordships be pleased to say that any citizenship granted will be subject to the outcome of the petitions.
SG : No, no.
CJI : They don’t have the infrastructure in place, the committee..
SG : This attempt was made outside the court four years back. Misleading people that you will be out of NRC. Same thing Mr. Pasha did. NRC is not an issue here. Grant of citizenship is. Please don’t do this. Nizam Pasha : Muslim members left out of NRC will be prejudiced.. 19 lakhs people left out of NRC, it applies to them.
SG : NRC is not an issue
CJI : They are not willing to make a statement, that is why we keep on April 9.
Sibal : If something happens, we will come..
CJI : What we will do is we will keep on April 9, 2024.
Jaising : In the meantime no citizenship.
SG : I am not making any statement.
SC : We direct the proceedings be listed on April 9, 2024.
Sibal : In meantime no citizenship be granted.
SG: Realistically speaking, I need 4 weeks.
CJI : You can file response in one case, opposing interim prayer.
SG : Many matters have different contentions.
Sibal : Then make a statement that no citizenship will be granted
CJI dictates order : On 22.01.2020 notice was issued. The rules have been
recently notified. This has given rise to applications for stay. SG submits that 4 weeks’ time be granted to file response. The request of 4 weeks’ time is opposed on the ground that in the meantime if citizenship is granted, it will be irreversible.
Sibal : There are serious issues of constitutionality.
Sr Adv Ranjit Kumar (for migrant) : From Balochistan, I came to India because I was persecuted. If I am given citizenship, how is it affecting them?
Jaising : They will get the right to vote!.

Continue Reading

Legally Speaking

Delhi High Court: ED summons cannot be quashed merely because documents required for confrontation or probe not specified in it

Published

on

The Delhi High Court in the case Mr Talib Hassan Darvesh v. The Directorate Of Enforcement observed and has said that the summons issued by Enforcement Directorate, ED cannot be quashed merely because relevant documents are required for investigation or confrontation with an accused who have not been specified in them.

The bench of Justice Anoop Kumar Mendiratta in the case observed and has stated that the summoning, in exercise of statutory powers, cannot be stalled merely on mere apprehension that the accused may be arrested and prosecuted on basis of summons issued after registration of ECIR in the proceedings which are initiated by the Enforcement Directorate, ED. The court in the case observed and has denied the interim relief to Talib Hassan Darvesh, the accused in the money laundering case.

Before the court, he also sought a stay on the summons which is issued to him by Enforcement Directorate, ED and to restrain the probe agency from taking any further coercive steps against him. Therefore, the Enforcement Directorate, ED opposed the petition which being on the ground that Darvesh cannot be insulated from any coercive action at the initial stage itself and no protective orders could be passed in his favour, ignoring the mandate of Section 45 of PMLA.

It has also been submitted before the court that the proceedings which are initiated by ED were an independent investigation into money laundering allegations based upon the ECIR and the benefit could not be granted which being merely on account of orders granting anticipatory bail to Darvesh in FIR registered by CBI.

The court stated while denying the relief that the summons issued by the Enforcement Directorate, ED cannot be quashed merely because the relevant documents required for purpose of investigation or confrontation to the petitioner, have not been specified in the summons. Adding to it, the court stated that since ECIR is an internal document which is being created before initiation of prosecution against persons involved with process or activity connected with proceeds of crime and it is not necessary to reveal the evidence collected by the Enforcement Directorate, ED at this stage in the summons forwarded to Darvesh.

Further, the court stated that the petitioner is yet to be absolved of scheduled offence by way of discharge, acquittal or quashing and as such protection orders cannot be issued in favour of petitioner ignoring the mandate as it is stated under Section 45 of PMLA, 2002 for grant of bail. Further, the court stated that summoning in exercise of statutory powers cannot be stalled merely on mere apprehension that petitioner may be arrested and prosecuted on basis of summons issued after registration of ECIR, in proceedings initiated by Enforcement Directorate, ED.

The court while considering the facts and circumstances of the case observed and found no grounds for interim relief to be made out at this stage, thus, the court disposed of the plea. Accordingly, the court the petition seeking to quash of the ECIR and summons for hearing on May 07.

The counsel, Advocates Mr. Siddharth Luthra and Mr. Siddharth Agarwal, Sr. Advs. with Mr. Ayush Agarwal, Mr. Udhav Sinha, Mr. Amar Gahlot, Ms. Srishty Jaura, Mr. Nalin Bajaj, Ms. Purvi Garg and Mr. Prashant Singh appeared for the Petitioner. The counsel, Advocates Mr. Zoheb Hossain, Special Counsel for E.D. with Mr. Vivek Gurnani, Mr. Kartik Sabharwal and Mr. Abhigiya represented the respondent.

Continue Reading

Trending