20 January 2020


Judgments

Supreme Court

Mohd. Rashid Vs. The Director, Local Bodies, New Secretariat and Ors.

MANU/SC/0037/2020

15.01.2020

Service

A candidate seeking appointment to a civil post cannot have an indefeasible right to appointment merely because of appearance of his name in merit list

In facts of present case, the candidates who were initially appointed as Lower Division Clerks and promoted as Upper Division Clerks/Head Clerks invoked the jurisdiction of the Central Administrative Tribunal challenging Advertisement dated 12th September, 2013 whereby, the Respondents set in process to fill up the posts advertised by way of direct recruitment. The argument was that, the Recruitment Regulations for the post of Administrative Officer/Assistant Assessor and Collector in North, South and East Delhi Municipal Corporations, 2013 contemplate that the vacancies for the posts in question are to be filled up by promotion failing which by direct recruitment. It was thus alleged that without resorting to promotion by convening meeting of the Departmental Promotion Committee, the alternative process of direct recruitment cannot be resorted to. The said Original Application was dismissed by the Tribunal by observing that the recruitment process is not against the constitutional provisions but the promotion must also not be tempered with.

In the writ petition directed against such order, the High Court held that, the Respondents have failed to comply with the Recruitment Rules and that only after the Respondents are unable to fill up the vacancies either by promotion or by transfer or by deputation, the Department would be entitled to publish the advertisement to fill up the vacancies. It was also found that, no effort has been made to hold DPC to carry out promotions nor the Respondents have explored the possibility to fill up the vacancies either by transfer or deputation.

The Recruitment Rules provides 50% quota to be filled up by promotion failing which by direct recruitment and another 50% by deputation quota failing which by direct recruitment are being followed by the Municipal Bodies. The Appellants who are aspirants for direct recruitment have no right for appointment merely because at one point of time, the vacancies were advertised. The candidates such as the Appellants cannot claim any right of appointment merely for the reason that they responded to an advertisement published on 12th September, 2013. Even after completion of the selection process, the candidates even on the merit list do not have any vested right to seek appointment only for the reason that their names appear on the merit list. In Shankarsan Dash v. Union of India, a Constitution Bench of present Court held that, a candidate seeking appointment to a civil post cannot be regarded to have acquired an indefeasible right to appointment in such post merely because of the appearance of his name in the merit list.

Since the selection process has not been completed and in view the mandate of the Statutory Rules, the Appellants have no right to dispute the action of the Municipal Bodies to fill up the posts either by way of promotion or by deputation as such posts are being filled up in terms of mandate of the Rules. It is always open to the Municipal Bodies to fill up the vacant posts by way of direct recruitment after the posts by way of promotion and/or deputation quota are not filled up either on the basis of recruitment process already initiated or to be initiated afresh. Consequently, there is no merit in the present appeals. Accordingly, the same are dismissed.

Relevant

Shankarsan Dash v. Union of India MANU/SC/0373/1991

Tags : Appointment Eligibility Right

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Supreme Court

Padum Kumar Vs. State of Uttar Pradesh

MANU/SC/0029/2020

14.01.2020

Criminal

Before acting upon opinion of hand-writing expert, Court must see that, such evidence is corroborated by either direct or other circumstantial evidence.

Present appeal has been preferred challenging the impugned judgment passed by the High Court whereby the High Court dismissed the revision petition filed by the Appellant confirming his conviction under Sections 467 and 468 of Indian Penal Code, 1860 (IPC) and the sentence of imprisonment imposed upon him.

Assailing the impugned judgment, learned Counsel for the Appellant has contended that, without proving that the Appellant has forged the signature in Ex.-P4-delivery slip, the conviction of the Appellant under Sections 467 and 468 of IPC cannot be sustained. The Courts below erred in not considering that the Government hand-writing expert's report was in favour of the Appellant.

It is not safe to base the conviction solely on the evidence of the hand-writing expert. As held by the Supreme Court in Magan Bihari Lal v. State of Punjab that "expert opinion must always be received with great caution. it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This Rule has been universally acted upon and it has almost become a Rule of law."

It is fairly well settled that, before acting upon the opinion of the hand-writing expert, prudence requires that the court must see that such evidence is corroborated by other evidence either direct or circumstantial evidence.

The hand-writing experts-M.Y. Khan (PW-5) and Siya Ram Gupta have opined that the disputed signature-"Q-1" in the delivery slip-Ex.-P4 does not match with the specimen signatures-"S-1 to S-6". Hand-writing experts have also opined that the one who wrote the specimen signatures had not written the disputed signature "Q-1" in Ex.-P4. As pointed out by the Courts below, the evidence of hand-writing expert is the evidence relied upon by the prosecution to corroborate the evidence of PW-2-Devesh Mohan who has denied his signature in Ex.-P4. Learned Counsel for the Appellant is not right in contending that, the Courts below have based the conviction solely upon the opinion of the hand-writing experts. The evidence of hand-writing experts is only a corroborative piece of evidence to corroborate the evidence of PW-2.

In the light of the evidence of PWs 1 to 3 and other evidence, the High Court rightly found that the Appellant who delivered the registered envelope at the place of the complainant-PW-1 is bound to explain as to who made the alleged signature in Ex.-P4-delivery slip. In the absence of any explanation by the Appellant-Accused, as held by the High Court, a presumption is to be raised against the Appellant who delivered the envelope as he is the only person having knowledge of the same.

From the evidence of PW-3, the prosecution has proved that the envelope contained valuable security-four Indira Vikas Patra of value of each Rs. 5,000 totalling Rs. 20,000. Upon appreciation of evidence adduced by the prosecution, the Courts below rightly recorded the concurrent findings that the Appellant has forged the signature of PW-2-Devesh Mohan and the conviction of the Appellant under Sections 467 and 468 of IPC is based upon the evidence and the conviction does not suffer from any infirmity warranting interference.

For the conviction under Section 467 of IPC, the Appellant has been sentenced to undergo imprisonment for four years and for the conviction under Section 468 of IPC, the Appellant has been sentenced to undergo imprisonment for three years along with fine of Rs. 500. The occurrence was of the year 1992. As seen from the custody certificate, the Appellant has been in custody from 04.07.2018 i.e. for a period of more than eighteen months. Considering that the occurrence was of the year 1992 and the facts and circumstances of the case, the sentence of imprisonment imposed upon the Appellant is reduced to the period already undergone.

The conviction of the Appellant-Accused under Sections 467 and 468 of IPC is confirmed and the sentence of imprisonment imposed on him is reduced to the period already undergone. The impugned judgment passed by the High Court is accordingly modified and the appeal is partly allowed. The Appellant-Accused is ordered to be released forthwith unless his presence is required in any other case.

Relevant

Magan Bihari Lal v. State of Punjab MANU/SC/0105/1977

Tags : Conviction Evidence Credibility

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High Court of Kerala

C.K. Moosa and Ors. Vs. Asst. Collector, Special Customs Preventiv, Calicut and Ors.

MANU/KE/0041/2020

13.01.2020

Criminal

Detention under the preventive detention laws is not punitive but is essentially a precautionary measure intended to prevent and intercept a person

In present case, the Superintendent of Special Customs Preventive Unit, Kannur intercepted the jeep. The second accused was the driver of the jeep. The first and the third accused and two other persons were travelling in the jeep. On inspection of the jeep, it was found that, a washing machine was being transported in it. The jeep with the washing machine was taken to the office of the Special Customs Preventive Unit at Kannur. When the washing machine was unscrewed and dismantled, it was found that nine gold biscuits, weighing 116.000 grams, were concealed inside it. The Superintendent of Customs seized the gold biscuits.

Investigation of the case revealed that, accused 1 to 3 had taken the washing machine with gold biscuits from the house of the fourth accused and that the fourth accused had brought the washing machine with the gold biscuits from Doha at the instance of the fifth accused who was working in Doha.

Charge against accused 1 to 3 and 5 was framed by the trial court for the offence punishable under Section 135(1)(i) of the Customs Act, 1962. The trial Court found the second and the fifth accused not guilty of the offence charged against them and acquitted them. The trial Court found the first and the third accused guilty of the offence punishable under Section 135(1)(i) of Act, 1962 and convicted them there under. The appellate Court confirmed the conviction as well as the sentence against the Petitioners. This revision petition is filed by the first and the third accused challenging the concurrent findings of guilty, conviction and sentence made against them by the Courts below.

Conviction of the revision Petitioners is based on the evidence given by the Superintendent of Customs (PW1), who detected the offence, and the Inspector of Customs (PW2) regarding the occurrence which was corroborated by the statements given by the revision petitioners before PW1 under Section 108 of the Act, 1962.

The punishment for an offence under Section 135(1)(i) of the Customs Act (as it stood at the time of commission of the offence), relating to smuggled goods of which the market price exceeded one lakh rupees, was imprisonment for a term which may extend to seven years and fine. It was further provided that, in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the Court, such imprisonment shall not be for less than three years.

In the instant case, the trial court did not award the minimum sentence of three years on the revision petitioners on the ground that, they were facing trial for a period of ten years and that the Government have relaxed the policy regarding import of gold. The trial court also took note of the fact that the Gold Control Act was no more in force. However, the set off allowed by the trial court under Section 428 CrPC for the period during which the revision petitioners were under detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) appears to be not legal and proper.

In Abdul Azeez v. Assistant Collector, the Apex Court has held that it is the settled legal position that, detention under the preventive detention laws is not punitive but is essentially a precautionary measure intended to prevent and intercept a person before he commits an infra-active act which he had done earlier. In view of the dictum laid down by the Apex Court in Abdul Azeez, it was not legal and proper for the trial court to allow the period of detention undergone by the revision petitioners under the COFEPOSA to be set off under Section 428 of Code of Criminal Procedure, 1973 (CrPC). However, in the absence of any challenge raised by the complainant against the sentence imposed on the revision petitioners by the trial court, this Court cannot now alter or interfere in any manner with the sentence imposed on them which would have the effect of enhancement of sentence.

Learned counsel for the revision Petitioners prayed that, the sentence of fine imposed on the Petitioners may be set aside. Sentence of fine is mandatory for an offence under Section 135(1)(i) of the Customs Act, 1962. Therefore, the request in that regard by the learned counsel for the revision Petitioners cannot be allowed. The trial court has only imposed Rs. 20,000 as fine on the revision Petitioners. The amount of fine imposed on them is not excessive. It is only reasonable. There is no sufficient ground to interfere with the concurrent verdicts of guilty, conviction and sentence passed against the revision petitioners by the Courts below. Consequently, the revision petition is dismissed.

Relevant

Abdul Azeez v. Assistant Collector: MANU/SC/0024/2003

Tags : Conviction Evidence Credibility

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NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI

DLF Ltd. and Ors. Vs. Satya Bhushan Kaura and Ors.

MANU/NL/0011/2020

13.01.2020

Company

A party cannot approbate and re-approbate at the same time

The Appellant has preferred this appeal under Section 421 of Companies Act, 2013 against the order passed by National Company Law Tribunal vide which Appellant No. 1 was directed to register the transfer and the Respondent was directed to make payment for 60,000 shares to Appellant No. 2. Respondent No. 1 was also directed that, on transfer of 60,000 shares in his name, he will execute the transfer deed to the extent of entitlement of Respondent No. 2 in accordance with terms of Letter of Administration issued by District judge vide order.

It is not in dispute that Mr. Devki Nandan Kaura was a shareholder of Appellant company holding 150 shares and after split of shares and bonus issue, his legal heirs are entitled for these 6000 shares. The real controversy between the parties is with regard to entitlement of allotment of 60000 shares which were due to R1 (including R2) on right basis by the Appellant company.

From the correspondence exchanged between the parties, it is noted that, the Appellant company have never intimated the Respondent that they have not approached the Appellant within the limitation period. However, vide letter dated 30th November, 2007, the Appellant Company has intimated the Respondent that final decision will be upon receipt of court direction in this regard. Once having represented to the Respondent to act upon certain course of action and he believing such representation bonafide and true acted upon it, the other party cannot resile back now from its stand. In other words, a party cannot approbate re-approbate at the same time.

Appellant company in their correspondence with the Respondent has already accepted to issue shares to the Respondents as per their entitlement on production of court orders, affidavit and indemnity bond and on payment of Rs. 120000 being the consideration amount of 60000 shares. During the course of arguments when we asked learned counsel for the appellant when the Letter of Administration has been submitted by the Respondent then why did you insist for affidavit and indemnity bond. When Letter of Administration has been issued, it means that the Appellants are discharged from their liability. On this, the learned counsel for appellant apologised. The appellant is a listed company in real estate and is very well aware of legal formalities. By insisting affidavit and indemnity bond again and again inspite of Letter of Administration issued clearly establish that the Appellants are harassing the poor investors.

The impugned order is upheld and further directions are issued. Respondent will make payment of consideration to the appellant company within 15 days and he shall be entitled to the benefit of the membership from the date of payment. Appellant company will transfer/arrange for transfer 60000 shares to the Respondent within 30 days. Respondent on transfer of 60000 shares in his name, will execute the transfer deed to the extent of entitlement of Respondent No. 2 within 30 days.

Tags : Transfer Direction Legality

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High Court of Chhattisgarh

Kamal Birha Vs. State of Madhya Pradesh

MANU/CG/0012/2020

10.01.2020

Criminal

In absence of evidence of harassment or cruelty on victim, charge of dowry death cannot be established

The appeal is directed against judgment passed by Second Additional Sessions Judge, in Session Trial wherein the said Court convicted the Appellant for commission of offence under Section 304B of the Indian Penal Code, 1860 and sentenced him to undergo rigorous imprisonment for ten years.

In the present case, name of the deceased/victim is Uma Bai. She was married with the appellant on 03.3.1996 and died on 08.4.1996. The place of incident is Indira Nagar, Ward No. 4, Dongargarh. It is alleged that the appellant committed cruelty against the deceased in connection with demand of dowry that is why report was lodged and the matter was investigated. The appellant was charge sheeted and convicted.

Case of the prosecution is based on presumption that it is a case of suicide. In a dowry death, either the death is homicidal or suicidal. Accidental death would not come under the purview of dowry death. If the death is suicidal and the same is independent act of the deceased, then the appellant is not required to explain such death. For requiring the explanation of the Appellant, it has to be established that the death is caused due to active act of the appellant and for that mens rea has to be proved. Every death within seven years of the marriage is not dowry death. Mere demand of dowry is not dowry death. Mere demand of dowry is not sufficient to term as dowry death. Crucial point is whether the deceased was subjected to cruelty on account of non-fulfillment of demand which lead the death of the deceased.

From the entire evidence, it is not clear as to what kind of harassment was done by the appellant. There is no evidence of physical violence on the part of the appellant. There is no proof of active act from the part of the appellant which may be termed as harassment or cruelty. The harassment has to be with definite object namely to coerce the woman or any person related to her to meet any unlawful demand. Mere demand as stated by the witnesses would by itself is not sufficient to bring home the guilt. Therefore, in absence of evidence of harassment or cruelty, charges of dowry death is not established against the appellant as per the factual position of the present case. The finding should be on the basis of objective assessment, but that is not the case here. Therefore, finding recorded by the trial Court is not sustainable.

Accordingly, the appeal is allowed. Conviction and sentence passed by the trial Court is set aside. The appellant is acquitted of the charges under Section 304B IPC. The appellant is reported to be on bail. His bail bonds shall remain operative for a further period of six months from today in terms of Section 437A of the CrPC.

Tags : Dowry death Conviction Legality

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High Court of Delhi

Deepak Hooda Vs. The Excise Commissioner and Ors.

MANU/DE/0044/2020

09.01.2020

Excise

Confiscation proceedings are in nature of civil proceedings and standard of proof is preponderance of probabilities

The Petitioner has filed the present petition, impugning an order passed by the Financial Commissioner, whereby the appeal preferred by the Petitioner against an order passed by the Commissioner of Excise under Section 73(2) of the Excise Act, 2009 (Excise Act), was rejected. By the said order, the Commissioner of Excise had rejected the Petitioner's appeal against an order passed by the Deputy Commissioner of Excise under Section 59 of the Excise Act, whereby the Petitioner's vehicle was confiscated on account of being used in commission of an offence punishable under Section 33 of the Excise Act.

The Petitioner contends that, prosecution proceedings are pending and he has not been convicted of committing any offence under Section 33 of the Excise Act as yet. Therefore, confiscation of his vehicle is pre-mature. The Respondents contend that, the proceedings for confiscation under Section 59 of the Excise Act are independent of the prosecution proceedings and thus, pendency of the said proceedings do not preclude confiscation of his vehicle under Section 59 of the Excise Act. Thus, the principal question to be addressed is whether the proceedings for confiscation under Section 59 of the Excise Act can be maintained and proceeded with independent of the prosecution for committing an offence under Section 33 of the Excise Act.

In the present case, it is alleged that the vehicle in question was used for unlawfully importing/transporting liquor into Delhi. Thus, the said liquor as well as the vehicle used in commission of such offence is liable to be confiscated in terms of Section 58 of the Excise Act.

Sub-Section (2) of Section 59 of the Excise Act makes it expressly clear that, a Deputy Commissioner can exercise its powers for confiscation of property, if any offence under the Excise Act has been committed irrespective of whether the prosecution has been instituted for commission of such an offence. The language of Sub-Section (2) of Section 59 of the Excise Act leaves no room for any doubt that, the confiscation proceedings under Section 58 and 59 of the Excise Act are wholly independent of the prosecution proceedings, which are required to be tried by the M.M.

Section 61 expressly provides that, no court would have the jurisdiction to make any further order in respect of the specified property, which is used in committing any offence as contemplated under the Excise Act. It is, however, necessary to clarify that, the order of confiscation would not, in any manner, prejudice the person accused in any criminal case instituted for prosecuting him for committing an offence under the Excise Act. The standard of proof required to be met in criminal proceedings is also not the same as is required for confiscation under Section 59 of the Act. It is well settled that, confiscation proceedings are in the nature of civil proceedings and the standard of proof is preponderance of probabilities. The contention that the Deputy Commissioner (Excise) was required to take prior permission of the learned M.M. before confiscating the vehicle in question by passing the impugned order is unmerited.

Even in cases where the order of confiscation has not attained finality on account of it being challenged, the seized vehicle can be sold and it is not necessary to withhold the sale. In the present case, the proceedings for confiscation have attained finality and the Petitioner has exhausted all his remedies of appeal against the impugned order of confiscation.

A plain reading of Section 52(2) of the Excise Act indicates that, it provides a rebuttable presumption that the owner, of a vehicle which is used in commission of an offence under the Excise Act, is guilty of such an offence. It is open for the owner of such a vehicle to satisfy the concerned Court that he had exercised due care in prevention of commission of the offence.

In the facts of the present case, the Petitioner has been unable to satisfy the Deputy Commissioner (Excise) that, he was not involved in the offence. The FIR indicated that the petitioner was driving the vehicle in question when it was seized. Present Court finds no reason to interfere with the impugned orders. The petition is unmerited and is, accordingly, dismissed.

Tags : Unlawful import Confiscation Vehicle

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Customs, Excise and Service Tax Appellate Tribunal

H.S. Chadha and Ors. Vs. Commissioner of Customs (Preventive)

MANU/CE/0007/2020

09.01.2020

Customs

Quotations cannot be the basis for re-determining the value of goods

The issue in present appeals being common - undervaluation of tyres imported by the Appellant company is for trade and further the companies are under same management. Under common investigation against both the Appellant Companies - Indo Silicon Electronics Pvt. Ltd. and Vortex Industries Pvt. Ltd. and the common managing director namely Shri H S Chadha revenue alleged undervaluation and rejected the transaction value. Thereafter, revenue determined the valuation and have demanded differential duty along with order of confiscation and penalty. In both the cases, penalty has also been imposed on Shri H S Chadha, who is also in appeal before the tribunal in both the cases.

Assailing the impugned orders, the Appellants states that, the impugned order has been passed in a mechanical manner without appreciating that the prices as reflected in the emails are only quotations and not the final price and thus cannot be relied for value enhancement of the goods.

Tyres are not prohibited item under Exim policy, and can be imported freely. Further, as the tyres are generally required all over the country there are several importers of identical/similar goods. It is trite law that, since the goods were assessed by proper officer based on transaction value, onus lies on the Revenue to prove undervaluation, which it has failed miserably to do so. There is no allegation or finding that the buyer and seller being related or of any extra payment to the supplier beyond the normal authorized banking channels and thus, undervaluation is not established.

There is no mention regarding which Rule of the Customs Valuation Rules, 2007 has been applied to arrive at the re-determined value and there is also no sequential application of Rules. It is trite law that, there has to be sequential application of rules to re-determine the value as has been held by the Hon'ble Apex Court in Eicher Tractors Pvt. Ltd. vs Commissioner of Customs Mumbai. Merely based on some emails, the transaction value cannot be disputed and negated without any cogent material.

Further, no copy of the emails on which the Department seeks to rely has been made as RUDs. Emails and other electronic evidence cannot be relied upon to prove undervaluation in absence of compliance of provisions of Section 138C of the Act. It is trite law that statements can be relied upon only if they are voluntary and true. It can be seen from above that all the statements of the Director Shri H S Chadha recorded are conflicting. Tyres are regularly imported all over the country and therefore the Department could have easily garnered evidence of contemporaneous imports which it admittedly did not do. Otherwise also, Mr. Chadha has not been examined by the Adjudication Authority before placing reliance on his statements, which was mandatorily required to be observed in compliance of Section 139 of the Customs Act. It is also trite law that quotations cannot be the basis for re-determining the value of goods as held Ld. CESTAT in Nava Durga Enterprises vs Commissioner of Customs (Sea Import). Thus, the allegation of undervaluation is not proved.

In the impugned order passed against the Appellant M/s. Vortex Rubber Industries Pvt. Ltd. denying exemption from SAD on Wanli brand goods detained at godown and those imported by Bill of Entry cannot be sustained as it was nowhere proposed in the SCN. The RSP stickers which were not found on some goods in the godown was much after their clearance from ICD and the Department has not shown that, the RSP stickers were not there at the time of clearance. The appeals are allowed with consequential benefits and any amount appropriated by the impugned orders stands revoked.

Relevant

Nava Durga Enterprises vs. Commr. of Cus. (Sea-Import) MANU/CC/0079/2013
; M/s. Eicher Tractors Ltd., Haryana vs. Commissioner of Customs, Mumbai MANU/SC/0699/2000

Tags : Demand Differential duty Validity

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