Secularism Held To Be Always Part Of Constitution, Says Supreme Court While Hearing Plea Against Amendment To Preamble

Secularism has always been held to be a part of the basic structure of the Constitution, orally said the Supreme Court, while hearing a batch of petitions challenging the inclusion of the words "socialist" and "secular" in the Preamble to the Constitution as per the 42nd Constitution Amendment.

A bench comprising Justices Sanjiv Khanna and Sanjay Kumar was hearing the matter.

"There are a number of judgments of this court which hold that Secularism was always part of the basic structure of the Constitution. If one looks right to equality and word fraternity used in constitution as well as the rights under Part III, there is a clear indication that secular has been held as the core feature of the Constitution," Justice Khanna orally said. Justice Khanna said that, unlike the French model of secularism, we adopted a new model of secularism.

The bench was hearing the petitions filed by Balram Singh, Dr.Subramanian Swamy and Ashwini Kumar Upadhyaya challenging the amendment to the Preamble.

During the hearing, Justice Khanna asked the petitioners, "You don't want the India to be secular?." "We are not saying that India is not secular. We are challenging this amendment," Advocate Vishnu Shankar Jain for the petitioner Balram Singh replied. Jain further submitted that Dr.Ambedkar had opined that the inclusion of the word "socialism" would curtain personal liberty.

In response, Justice Khanna said, "Socialism can also mean that there should be equality of opportunity and wealth of country should be distributed equally...let's not take the Western meaning."

Ashwini Upadhyaya asserted that India has been secular since time immemorial.

Dr.Swamy submitted that the Preamble was a declaration made as on November 26, 1949, and therefore, to add further words to it through a subsequent amendment was arbitrary. He said that it was wrong to depict that as per the present Preamble, the Indian people agreed on November 26, 1949, to make India a socialist and secular republic.

In response, Justice Khanna said that the words added by the amendment were separately marked by brackets and hence it was clear to everyone that they were added by the 1976 amendment. He pointed out that words like "unity and integrity of the nation" were also added by the amendment.

Upadhyay argued that if such an amendment is approved, it can mean that in future, the Preamble can be amended to remove words like democracy.

Ultimately, the matter was listed in the week commencing on 18th November for hearing.

Cases : Balram Singh v. Union of India W.P.(C) No. 645/2020, Dr.Subramanian Swamy v. Union of India W.P.(C) No. 1467/2020 and Ashwini Upadhyaya v. Union of India MA 835/2024

Government And Private Sector Should Focus On How To Accommodate, Not Disqualify, Candidates With Disabilities: Supreme Court

The Supreme Court on Tuesday (October 15) stressed that the focus of the government, regulatory bodies, and the private sector should be on how to accommodate and provide opportunities for candidates with disabilities, rather than seeking ways to disqualify them or hinder their educational goals.

“The approach of the Government, instrumentalities of States, regulatory bodies and for that matter even private sector should be, as to how best can one accommodate and grant the opportunity to the candidates with disability. The approach should not be as to how best to disqualify the candidates and make it difficult for them to pursue and realize their educational goals.”

A bench of Justice BR Gavai, Justice Aravind Kumar and Justice KV Viswanathan observed that the Disability Assessment Boards are not to function as "monotonous automations" that merely check the percentage of disability. The Court emphasized that the role of the Disability Assessment Boards is to determine whether a candidate's disability will impede their ability to pursue the course in question.

“Disabilities Assessment Boards are not monotonous automations to just look at the quantified benchmark disability as set out in the certificate of disability and cast aside the candidate. Such an approach would be antithetical to Article 14 and Article 21 and all canons of justice, equity and good conscience. It will also defeat the salutary objectives of the RPwD Act. The Disabilities Assessment Boards are obliged to examine the further question as to whether the candidate in the opinion of the experts in the field is eligible to pursue the course or in other words, whether the disability will or will not come in the way of the candidate pursuing the course in question.”

The Court passed the following directions in this regard –

▪️The Court held that the Disability Assessment Boards must positively record whether the disability would impede the candidate's ability to complete the course. If the Board concludes that a candidate is ineligible, it must provide reasons for its decision.

▪️Pending the formulation of revised regulations by the National Medical Commission, the Disability Assessment Boards must consider the principles outlined in a communication from the Ministry of Social Justice and Empowerment dated January 25, 2024. This communication emphasized the need for incorporating advancements in assistive technology and ensuring that regulations comply with the objectives of the RPwD Act.

▪️The Court held that candidates can challenge negative opinions of the Disability Assessment Boards through judicial review. The courts have to refer such cases to premier medical institutions for independent opinions

The Court passed the aforementioned directions while ruling that the mere existence of a benchmark disability cannot disqualify a candidate from pursuing educational courses, including the MBBS program.

The Court allowed an appeal filed by a candidate with a speech and language disability quantified at 44-45%. The candidate sought admission to the MBBS program under the Persons with Disabilities (PwD) category, but was denied admission on the ground of having a benchmark disability. This decision was based on the Graduate Medical Education Regulation, 1997 as amended in 2019. This regulation barred candidates with 40% or more disability from pursuing an MBBS course.

The question before the Court was whether a candidate with a benchmark disability exceeding 40%, such as the appellant's speech and language disability, should be automatically disqualified from admission under the PwD category for the MBBS course.

The Supreme Court stressed that the Rights of Persons with Disabilities Act, 2016 was framed to give effect to the principles set forth in the United Nations Convention on the Rights of Persons with Disabilities, which emphasize respect for individual autonomy, non-discrimination, equality of opportunity, and full participation in society.

The Court referred to Article 41 of the Constitution, which mandates the State to make effective provisions for securing the right to education for persons with disabilities. It also focused on Sections 2(m), 2(r), 2(y), 3, and 32 of the RPwD Act, 2016, which provide for inclusive education, reasonable accommodation, and reservation of seats in higher educational institutions for persons with benchmark disabilities.

The Court criticized appendix H-1 inserted by the 2019 amendment to the Regulations for creating an absurd situation wherein candidates with less than 40% disability could pursue the MBBS course without PwD reservation, and those with 40% or more disability were not eligible at all to pursue the course.

“The column under the guidelines “Eligible for Medical Course, Eligible for PwD quota” is left blank reinforcing the absurd position that under this category no one is rendered eligible for the 5% reserved quota. Certainly that cannot be the legal position”, the Court highlighted.

The Court emphasized the need for a purposive interpretation of the RPwD Act and the NMC regulations. It held that a blanket exclusion of candidates with 40% or more disability, without considering their ability to pursue the course, was unconstitutional. This interpretation, the Court said, was discriminatory and violated Article 14 of the Constitution. The Supreme Court held that the mere quantification of a speech and language disability at 40% or above does not disqualify a candidate from claiming admission to a course. The Court emphasized that such an interpretation would result in overbroad application of the Regulations, treating unequal cases equally.

"Lumping together persons with benchmark disabilities who can pursue the educational course with those with the same disabilities who, in the opinion of the Medical Board, cannot pursue the course would tantamount to over-inclusion. This is precisely what Article 14 frowns upon", the Court held.

The Court stressed the importance of inclusive education, noting that reasonable accommodation, as defined in Section 2(y) of the RPwD Act, includes making necessary adjustments to ensure equal participation for persons with disabilities.

The Court confirmed the appellant's admission to the MBBS program, which had been granted earlier through an interim order dated September 18, 2024, based on a favorable report by the Maulana Azad Medical College.

The Supreme Court also referenced individuals who have overcome disabilities and achieved great success. The Court mentioned individuals such as Bharatanatyam dancer Sudha Chandran, Mount Everest climber Arunima Sinha, and sports personality H. Boniface Prabhu, along with historical figures like Homer, Milton, Mozart, and Beethoven.

Case no. – Special Leave Petition (Civil) Diary No. 39448/2024

Case Title – Omkar Ramchandra Gond v. Union of India & Ors.

Citation: 2024 LiveLaw (SC) 770

Telangana High Court Upholds ED's Power To Issue Summons, Carry Out Further Investigation Even After Filing Complaint Against Accused

The Telangana High Court has held that the Enforcement Directorate (ED) has the authority to issue summons under Section 50(2) and (3) of the Prevention of Money Laundering Act (PMLA) even after a complaint has been filed before a Special Court. The court held that such summons do not violate Article 20(3) of the Constitution and that the ED does not require prior permission from the Special Court to conduct further investigations or issue summons in ongoing cases. It held:

“The power conferred to the Enforcement Directorate to conduct further investigation/ issuing of summons to trade proceeds of the crime arising out of an offence under Section 3 of PMLA, cannot be restricted upon filing of the complaint on the file of Special Court, since even after filing of the complaint under Section 44 of the PMLA Act, the investigation agency is having power to file any subsequent complaint, in respect of further investigation that may be conducted to bring any further evidence against any accused."

Simply because, the petitioner is shown as an accused in the complaint, it does not take away the power of investigating authorities to further investigate the complaint for lodging of subsequent complaint and issuance of summons under Section 50 (2) and (3) of the PMLA Act," the Court added.

Justice C.V. Bhaskar Reddy passed the order in a Writ Petition wherein the summons issued by the ED to a director of M/s. Farmax India Limited in connection with an ongoing money laundering investigation were challenged.

Background:

The case originated from an FIR registered in 2013, which led to the ED registering an Enforcement Case Information Report (ECIR) in 2022. The petitioner, a former company director, was subsequently named as an accused in a complaint filed by the ED before the Special Court under the PMLA. After the complaint was taken cognizance of by the court, the ED issued summons to the petitioner for further investigation.

The petitioner argued that once the Special Court had taken cognizance of the case, the ED lacked the authority to issue summons without the court's permission. He contended that such action violated his fundamental rights, particularly Article 20(3) of the Constitution, which protects against self-incrimination.

On the other hand, the ED maintained that money laundering is a continuous offence, and ongoing investigations are permissible even after a complaint is filed. They argued that the PMLA provides for subsequent complaints based on further investigations and that the ED's powers are akin to those of a civil court in summoning individuals and collecting evidence.

In its reasoning, the court drew a distinction between "further investigation" and "reinvestigation." It held that while reinvestigation without prior permission is forbidden, further investigation is a statutory right of investigative agencies.

“In view of difference between further investigation and re-investigation, the investigation agencies under the PMLA Act, are allowed to carry out further investigation, even after filing a report under Section 173(2) Cr.P.C and even after acceptance of the same by the Special Court.”

The court, further, relied on Supreme Court judgments, including Vijay Madanlal Choudhary vs. Union of India and State Through Central Bureau of Investigation vs. Hemendhra Reddy, to support the above-mentioned conclusion.

The court emphasized that the mere issuance of summons does not violate Article 20(3), as compulsion in the context of self-incrimination must amount to legal duress. It clarified that the constitutional protection applies when an accused is compelled to make a statement, not when they are simply summoned to provide evidence or produce documents.

Furthermore, the court noted that Section 44 of the PMLA allows for subsequent complaints based on further investigations. It interpreted this provision as allowing the ED to continue its investigative activities even after filing an initial complaint.

Thus the Writ was dismissed, confirming the validity of actions taken up by the ED.

WRIT PETITION No.3681 of 2024

Counsel for petitioner: T Bala Mohan Reddy

Counsel for respondents: Gadi Praveen Kumar Dy. Solicitor Gen. Of india

NEET-UG 24 | Undeniable That Paper Leak Happened, Re-Test Necessary If Tainted Candidates Can't Be Segregated & Leak Is Widespread: Supreme Court

While hearing a batch of petitions challenging the NEET-UG 2024 exam, the Supreme Court posed a volley of questions to the Union Government and the National Testing Agency (NTA) regarding the nature of the paper leak and the steps taken to identify the beneficiaries of fraudulent practices.

Stating that the fact of the paper leak in the NEET-UG exam cannot be denied, the Court said that it has to be ascertained if the nature of the leak was widespread or isolated to decide on ordering a re-test.

"If we come to the conclusion that the time lag between the leak and the actual exam is limited, that will be a circumstance which will militate against the holding of a re-test," Chief Justice of India DY Chandrachud observed.

"What is the modality in which the leak took place? If the modality of the leak is through electronic means and social media, then there is a possibility that the leak is widespread," CJI added.

The Court asked the Union Government and the National Testing Agency (NTA) to respond to certain specific queries (detailed below) and posted the matters for further hearing on July 11. The Court also asked the Central Bureau of Investigation (CBI) to submit a status report on the investigation into the paper leak cases.

⚖️ Bench identifies certain "red flags"

The bench comprising CJI DY Chandrachud, Justices JB Pardiwala and Manoj Misra, hearing a batch of petitions seeking to cancel the NEET-UG exam held on May 5 and the results declared on June 4, identified the following "red-flags" in the exam which should be assessed.

"If we have to separate the grain from the chaff, we have to identify the red flags. If that is possible, it may be necessary to hold a re-test for that category alone," CJI said.

The bench cited the following red-flags for the authorities to consider :

🔸There is an unprecedentedly high number of students who scored 720/720 marks. How many of those students are the beneficiaries of the grace marks?

🔸Students who registered at one centre and changed the exam centre to take the exam at a far-off place and secured high marks.

🔸Students who get exceptionally high marks in the NEET, but whose performance is not reflected in their 12th exams. However, the bench acknowledged that students may not study that hard for the board exams too.

🔸Students who get exceptionally high marks in one subject, but get abysmally low in another subject.

"One thing which is very clear is that the leak has taken place. That the sanctity of the exam has been breached is beyond doubt. The question is how widespread is the leak," CJI said.

However, the SG denied that the paper leak itself happened and that it was a matter under investigation. He submitted that Bihar police has issued a clarification that they have not issued any press note, which was cited by the petitioners.

"Is the case of NTA today that there is no leak? We take it that there is an admitted position that there is a leak. The nature of the leak is the fact we are determining," CJI said.

⚖️ Ordering a re-test for the entire students a tough task

The bench observed during the hearing that ordering a re-test for the entire students is a tough task.

"Before we decide to order a re-test, we must understand what is the nature of leak. Asking 23 lakh students to appear for a re-test is tough. First we would like to know the entire process. Second, the nature of FIRs. Third, the point of time when the leak took place and how the leak disseminated," CJI said.

⚖️ Observations in the order

After the hearing, the Court dictated a short order specifying the points on which disclosures are needed. I

The Court said that it will have to scrutinise : (i) Whether the alleged breach has taken place at a systemic level; (ii) whether the breach has affected the integrity of the entire examination process; (iii) whether it is possible to segregate the beneficiaries of fraud from the untainted students.

In a situation where the breach in the sanctity of an examination has affected the entirety of the process, and it is not possible to segregate the beneficiaries of wrongdoing from others, it may be necessary to order a re-examination. On the contrary, if the breach is confined to specific areas and it is possible to identify the wrongdoers, it may not be appropriate to order a re-test, especially in a exam involving 23 lakh students, the Court observed.

The Court directed the NTA to make a full disclosure before the Court on - (i) the nature of the leak, (ii) the places where the leak took place, (iii) the lag of time between the occurrence of the leak and the conduct of the exam.

From this perspective, the NTA was directed to clarify - (i) when the leak of the question papers first took place, (ii) the manner in which the question papers were leaked and were disseminated, (iii) the duration between the occurrence of the leak and the actual conduct of the exam.

The Court should be apprised of the - (i) steps taken by NTA to identify centres/cities in which the leak took place, (ii) modalities followed to identify the beneficiaries of the leak, (iii) the number of students who have been so far identified.

The Court also asked the Union/NTA whether it was feasible to use the data analytics, either within the cyber forensic unit or any other expert agency to identify the suspect cases. If this is possible, authorities shall identify the modalities which can be followed to segregate the tainted from the untainted.

The Court also asked the Union/NTA to inform about the status of counselling.

The Court also expressed concerns about steps to be taken in future to ensure the sanctity of the NEET so that such instances are not repeated in the future.

⚖️ Arguments of the petitioners

The bench first heard the petitions which sought the cancellation of the NEET-UG 2024 exam held on May 5 and the results declared on June 4 on the ground that the exam's sanctity has been vitiated by widespread instances of paper-leak, unfair means and impersonation.

The counsel appearing for the petitioner argued that the Bihar police has arrested persons involved in leaking the question papers through Telegram app.

The unprecedented fact that 67 candidates got 100% marks in the exam was also flagged by the petitioners.

Reference was made to precedents which hold that if there are faults at a systemic level and if it was impossible to segregate tainted and untainted candidates, then the entire exam has to be set aside. The identification of the beneficiaries of the fraud cannot be ascertained exactly. The counsel submitted that according to the Bihar police, the NTA has not followed the standard SOP, indicating a systemic fault and a large-scale fraud. The NTA also says it cannot be sure at this stage whether it was a fault at a systemic level and was not aware of the sweep of the fraud. At the same time, the NTA is saying that the fraud is at a "minuscule" level. The counsel submitted that this indicated the contradictory stances adopted by the NTA.

In an attempt to highlight the largescale nature of the irregularities, the counsel submitted that there are 6 FIRs registered in Bihar, Delhi, Rajasthan, Gujarat, Maharashtra and Jharkhand in relation to the NEET scam.

"So the fact that there was a paper leak is admitted?," CJI asked at this juncture. Then the Solicitor General of India Tushar Mehta stated that in Bihar, the students who indulged in the scam have been identified and their results are withheld.

⚖️ What is there to indicate that the malaise affected the entire exam? Bench asks.

"To formulate your point, entire credibility of exam is lost and it is not possible to segregate tainted from untainted. What is the factual foundation for this?," CJI asked the petitioners. In response, the counsel referred to the police FIRs and the press release issued by the Bihar police which blamed the NTA for not following the SOP.

"But does it indicate that it was a malaise affecting the entire exam," Chief Justice of India asked. The petitioner replied that the question papers were being circulated in the Telegram channel on May 3 and 4, ahead of the exam.

The bench at this juncture asked the NTA about the number of candidates, the number of exam centres and the manner of sending the question papers to the centres. The NTA's counsel replied that 23,33,297 students attended the exam in over 4751 centres in 571 cities.

The Court then asked the NTA specific queries on how the question papers were prepared, when they were sent to the printing presses, how they were taken to the exam centres etc.

The Central Government and the National Testing Agency have filed affidavits before the Court opposing the demand to cancel the exam. They have told the Court that the instances of alleged malpractices are isolated and do not warrant the scrapping of the entire exam jeopardising the future of lakhs of honest students.

⚖️ What Is The NEET-UG Matter About?

Notice was issued on May 17 in the lead petition titled 'Vanshika Yadav v. Union of India' which had sought NEET UG exams to be conducted afresh in light of the alleged malpractices and paper leak of the exam.

While the Top Court refused to grant a stay on the results of the NEET-UG 2024 exam, the bench led by CJI DY Chandrachud agreed to consider the matter and posted it for hearing after the summer vacation (in July).

Several petitions have been filed before the Top Court alleging that the nationwide examination held on May 5 by the National Testing Agency (NTA) was riddled with malpractices as various instances of paper leaks came to light. Subsequent to the declaration of the NEET-UG Results, additional pleas were also raised against the 'arbitrary' grant of grace marks to 1536 candidates on grounds of 'loss of time' purportedly to give 'back-door entry' to certain individuals.

One of the petitions also seeks to recall the NEET-UG 2024 results & the conduct of a fresh examination. Additional petitions were also filed which sought CBI investigation into the alleged malpractices in the conduct of the examination. Notice was issued in these matters and tagged together for a combined hearing on July 8.

Opposing the calls for 'Re-NEET' and cancelling the results of the NEET-UG 2024 examination, a petition has also been filed by 56 Gujarat-based medical students in the Supreme Court for not re-conducting NEET afresh.

⚖️ Key Developments During Hearing By The Vacation Bench

When the petitions came up for hearing before the Vacation Bench, the Court on multiple occasions verbally stressed the need for NTA to accept accountability if there have been any mistakes on its part. The Court also observed that it was imperative for NTA to efficiently answer the Court considering how the 'sanctity' of the NEET-UG Examinations has been affected.

The Top Court on June 21 refused to stay counselling process for medical admissions and clarified that any such admissions will be subject to the outcome of the pending petitions. On July 5, the NTA and the Centre informed the Court that they were not in favour of cancelling the exam in its entirety.

It may be noted that on June 22, the Ministry of Education constituted a high-level committee of experts to make recommendations on 'Reform in the mechanism of the examination process, improvement in Data Security protocols and structure and functioning of NTA'. The Expert Committee will be chaired by Former ISRO Chairman Dr K Radhakrishnan.

Case Details : Vanshika Yadav v. UOI W.P.(C) No. 000335 - / 2024 & Connected Matters

Madras High Court Directs State To Prescribe Separate Norms For Transgender Persons In Employment And Educational Avenues.

The Madras High Court has directed the state government to prescribe separate norms for transgender persons in employment and educational avenues. The court added that transgender persons should not be clubbed under male or female categories and should instead be treated as a special category and the norms extended to other special categories should be extended to them.

“The second respondent is directed to treat the transgenders under special category and not to treat them under female or male category in al education and employment avenues. In every employment and educational avenues, the Government shall prescribe separate norms for transgenders which shal be below the norms prescribed for male and female candidates,” the court ruled.

Justice Bhavani Subbaroyan remarked that the state government was still confused about how to place transgender persons and perpetuating this confusion by placing transgender persons under the male or female category.

“Though the State Government has passed several notifications subsequent to the orders passed by the Hon'ble Supreme Court as well as this Court, but, till date, the State Government is still under the confusion and perpetuating the confusion by placing the transgender either in the female or male category along with the caste they belong,” the court observed.

The court thus came to the rescue of a transwoman who wished to participate in the recruitment for a post included in Combined Civil Service Examination – II (Non-Interview Post). She had contended that by not including her under the special category, the TNPSC had denied her the opportunity to be considered.

It was contended that the transgenders were not given proper opportunity un the employment and whenever there was any recruitment, they were forced to approach the court for relief. It was argued that though she had scored more than the cut-off mark prescribed for special category, she was not called for uploading documents while those below her rank were called and permitted to upload documents.

The TNPSC, on the other hand, submitted that they were following the rules and guidelines prescribed by the Government and in the absence of any notification or instruction from the government, they could not treat transgender persons as a special category. In the present case, it was submitted that the petitioner had applied under the Scheduled Caste category and since she had not scored the requisite marks under that category, she was not considered.

The court observed that while the Apex Court, in NALSA judgment had directed the Central and State governments to give benefits to transgender persons similar to the socially and educationally backward classes of persons, this direction had been misconstrued many times by state government and agencies of state government.

The court noted that the state often placed transgender persons under the most backward community or to their caste which was against the intention of the Apex Court. The court added that through the NALSA judgment and subsequent pronouncements, the Apex Court's intention was only to extend benefits applicable to socially and educationally backward class communities to transgender persons and not to place them under that category.

In the present case, the court noted that the notification was silent on treating transgender persons as a separate category and had thus failed to recognize the rights of the transgender community. The court added that there was no reason for denying to consider the petitioner under a special category.

The court also remarked that every denial of opportunity to transgender people would only pull them back to live an abnormal life. The court noted that it was the Government's duty to improve their quality of life by providing sufficient opportunities which would ultimately create a balance in the society.

The court thus directed the TNPSC to allow the petitioner to upload her documents for certificate verification.

⏺️ Case Details :-

▶️ Counsel for the Petitioner :- Mr.S.Karthikeyan

▶️ Counsel for the Respondents :- Mr.G.Hema for TNPSC, Dr.T.Seenivasan Special Government Pleader

▶️ Case Title :- R Anushri v The Secretary TNPSC and Others

▶️ Case No :- W.P.No.11197 of 2018

Gujarat High Court Stays Release Of Aamir Khan's Son Junaid Khan's Film 'Maharaj'

The Gujarat High Court has stayed the release of the film "Maharaj," featuring Junaid Khan, son of actor Aamir Khan, until the next hearing.

The movie, produced by Yashraj Films and slated for release on Netflix today, has been halted by an ad-interim order issued by Justice Sangeetha K Vishen.

The court has also issued notices to Yashraj Films, Netflix India, and others involved.

“Considered the submissions. Issue notice to the respondents, returnable on 18.06.2024. Ad-interim relief is granted in terms of paragraph 11(C), till the next date of hearing,” Justice Vishen directed on June 13.

The film was to start streaming on Netlfix from June 14.

The decision came in response to a plea filed on behalf of devotees of Lord Krishna and followers of the Pustimarg sect, who argued that the movie could disrupt public order and incite violence against their sect and the Hindu religion.

The petitioners claimed the film is allegedly based on the Libel Case of 1862, which included severely blasphemous remarks about Hinduism, Lord Krishna, and devotional songs and hymns, as decided by English judges of the Supreme Court of Bombay.

The petitioners further argued that the release of "Maharaj" was being done secretively, with no trailer or promotional events, to conceal its controversial storyline. They expressed concerns that the release would cause irreparable harm to their religious sentiments. Despite urgently appealing to the Ministry of Information & Broadcasting to block the film's release, no response was received.

Given the global reach of OTT platforms, the petitioners stressed that it would be nearly impossible to rectify the damage caused by the film's release.

The matter is now scheduled for further hearing on June 18.

▶️ Case Title: Kalpeshkumar Babubhai Turi v. State of Gujarat

NEET UG 2024 - Grace Marks Given To 1563 Candidates Will Be Cancelled, They'll Be Given Retest Option: Centre Tells Supreme Court.

BREAKING NEWS | NEET UG 2024 - Grace Marks Given To 1563 Candidates Will Be Cancelled, They'll Be Given Retest Option: Centre Tells Supreme Court.

In relation to the NEET-UG 2024 controversy, the Centre on Thursday (June 13) informed the Supreme Court that a decision has been taken to cancel the grace marks awarded to 1563 students. These 1563 candidates will be informed of their actual scores (without the grace marks) and will be given the option to appear for a re-test, the counsel appearing for the Union Government informed the Supreme Court today. If those students do not wish to take the re-test, their scores based on the exam held on May 5 will be taken into account.

Advocate Kanu Agarwal, representing the Union Government, told a vacation bench comprising Justices Vikram Nath and Sandeep Mehta, that the decision was taken by the panel constituted by the National Testing Agency (NTA) on June 12 to "allay the fears of the students". Agarwal stated that the panel was of the view that the award of compensatory marks to 1563 students on the grounds of loss of time resulted in a "skewed situation" because the grace marks had to be limited only to the unattempted questions. After examining all aspects, the committee concluded that it would be appropriate to recommend the cancellation of the scorecards of the 1563 students and that they will be informed of their actual marks (without grace marks).

Taking note of these facts, the bench dictated the following order :-

"The petitioner who had appeared for NEET-UG 2024 has raised a grievance regarding the grant of compensatory marks to 1563 candidates using the normalisation formula where the candidates were not allowed the permitted time of 3 hours 20 minutes. Compensatory marks have been awarded based on the recommendation of a Grievance Redressal Committee relying upon the judgment of this...The National Testing Agency constituted another committee to reconsider the issue and gave its recommendation as to whether the award of compensatory marks. The subsequent committee held meetings on 10 June 2024 and has made recommendations which have been placed before us.

According to the recommendations, it has been suggested that the score-cards of the affected 1563 candidates issued on June 5, 2024 will stand cancelled and withdrawn. These students will be informed of their actual scores. They will be given an option to appear for a re-examination. Results of the students who do not wish to appear for the re-examination will be based on their exam held on May 5."

The Court also recorded the submission of Senior Advocate Naresh Kaushik, for the NTA, that the re-test will be notified today itself and will be likely held on June 23. The results of the re-test will be published before June 30 so that the counselling scheduled on June 6 can start.

Recording the stand of the Union and the NTA, the Court disposed of one petition which challenged the grant of grace marks. The Court also issued notice on another petition which alleged paper-leak of the exam and tagged it with similar petitions which are posted on June 8.

Briefly stated, the court was dealing with 3 petitions filed challenging the NEET-UG, 2024 results for widespread irregularities and raising suspicions with regard to the grant of grace marks in the test by National Testing Agency to over 1500 candidates on the ground of "loss of time".

One of the petitions was filed by Physics Wallah CEO-Alakh Pandey, who claimed that the NTA's decision to award grace marks was "arbitrary". Reportedly, Pandey collected representations from about 20,000 students, showing that about 70-80 marks were randomly awarded as grace marks to at least 1,500 students. Advocate J Sai Deepak represented the petitioner. The Court closed the issue of grace marks in this petition but kept it pending to consider the other grievances.

The second petition was filed by SIO members Abdullah Mohammed Faiz and Dr. Shaik Roshan Mohiddin, seeking recall of the NEET-UG 2024 results and conduct of a fresh exam. The petitioners alleged arbitrariness in the grant of grace marks, pointing out that marks as high as 718 & 719 out of 720 (secured by several students) were “statistically impossible”. It was claimed that NTA's grant of grace marks was a malafide exercise to give “backdoor entry” to certain students, instead of compensation for "lost time". The petitioners also raised suspicions regarding the fact that 67 students from one particular centre obtained full 720 marks. Notice was issued on this petition today.

The third petition was filed by NEET candidate-Jaripiti Kartheek, challenging award of grace marks as compensation for alleged loss of time during the exam. He contended that the “normalization formula” to award grace marks at best could extend only to the number of questions that may be left unanswered in proportion to the loss of time, given that each question has equal mark weightage; therefore equal time distribution to answer each question can be assumed. This petition was disposed of today.

Notably, on June 11, the Supreme Court issued notice on another petition filed before declaration of the NEET-UG results (on June 4), seeking cancellation of the NEET-UG 2024 test over alleged paper leak. Observing that the sanctity of the exam had been affected, the Court sought a response from the NTA on the allegations of paper leak by July 8. However, it turned down the prayer to stay the counselling process.

Previously, on June 8, the NTA and Union Education Ministry announced formation of a 4-member committee to review the results of over 1,500 candidates who were awarded “grace marks” to compensate for the “loss of time” suffered while appearing for the NEET-UG 2024 exam.

⏺️ Case Details:-

▶️ Abdullah Mohammed Faiz and Anr. v. National Testing Agency (NTA) and Ors., W.P.(C) No. 369/2024

▶️ Alakh Pandey v. National Testing Agency and Anr., W.P.(C) No. 368/2024

▶️ Jaripiti Kartheek v. National Testing Agency (NTA) and Ors., W.P.(C) No. 366/2024

Auditor General Will Decide: Gauhati High Court Disposes PIL Alleging Corruption, Misappropriation Of Funds In Assam Sarva Shiksha Abhiyan.

The Gauhati High Court recently disposed of a PIL which prayed for high level enquiry alleging corruption and misappropriation of government funds allotted under the Assam Sarba Siksha Abhiyan Mission, by observing that the Principal Auditor General (Audit), Assam shall decide the concerned Audit Objections expeditiously.

The division bench of Chief Justice Vijay Bishnoi and Justice Suman Shyam was hearing a PIL with a prayer to issue a mandamus to the Union of India and other state respondents to cause a high level enquiry to find out the corrupt officials of the Assam Sarba Siksha Abhiyan Mission.

The petitioner had relied upon the audit reports of the Accountant General to substantiate his claim. It was alleged that in respect of the said irregularities petitioner has already filed complaints on August 30, 2019 and February 02, 2021, however, the respondent authorities have not taken any action against the erring officials.

The respondents filed counter affidavits in which it was emphasised that the Principal Auditor General is seized of the matter and out of the 43 Audit Objections, 23 Audit Objections have already been dropped after getting satisfactory clarification or reply from the concerned authority.

It was further stated by the respondents that in respect of the remaining Audit Objections, replies or clarifications have already been sought and after considering such replies or clarifications, those Audit Objections would be dealt with and, in case any irregularities are found on the part of the officials concerned, recommendations for taking appropriate action against such officials will be sent to the concerned department.

The Court disposed of the PIL with following observations:

“Taking into consideration the above facts and circumstances of the case and, more particularly, the statement of the respondents in the affidavit-in-opposition that the Principal Auditor General (Audit), Assam, is seized of the matter of the alleged financial irregularities, we deem it appropriate to dispose of the writ petition with the hope and trust that the Principal Auditor General (Audit), Assam shall decide those Audit Objections expeditiously, in accordance with law, and if any government official is found involved in the misappropriation of government funds made available under the Assam Sarba Siksha Abhiyan Mission, appropriate recommendations for taking action against such officials will be sent to the State Government.”

Case Title: Amguri Naba Nirman Samity v. The Union of India & 3 Ors.

Case No.: PIL/23/2021

Delhi High Court Restricts Ramleela Function Bookings In DDA Grounds Till Fresh SOP Is Published.

The Delhi High Court has barred any further offline or online bookings of Ramleela functions in the Delhi Development Authority (DDA) grounds till a new SOP aur guidelines for booking is published by the authority.

Justice Tara Vitasta Ganju directed the DDA to formulate comprehensive SOPs or guidelines for booking of Ramleela sites within five weeks' and no later than June 25.

While asking the DDA to also publisize the guidelines or SOPs, the court ordered:

“In the meantime, no online/offline bookings of Respondent No.1/DDA ground/open spaces for Ramleela functions, shall be undertaken by the Respondent No.1/DDA, till the new SOPs guidelines for booking of Ramleela Sites is published by the Respondent No.1/DDA.”

The court was dealing with a plea moved by Hanumant Dharmik Ramleela Committee for framing of guidelines and SOPs to resolve disputes regarding grant of permission to use sites to organize Ram Leelas in Delhi and appointment of an independent body to replace the Delhi Dharmik Mahasangh.

Even though DDA placed on records its policy for “streamlining the procedure for temporary allotment of open spaces/community halls for various functions”, the court said that the same did not set out any mention of a “list” prepared by the Delhi Dharmik Mahasangh or that the bookings for Ramleela Sites will be subject to orders passed by any other authority.

“In view of the fact that the Respondent No.1/DDA is now making the Ramleela Sites bookings subject to document which is to be submitted by a third party organization, it is necessary that the Respondent No.1/DDA puts in place a set of guidelines or an SOP for these bookings, to prevent further situations as had arisen in the year 2023,” the court said.

Noting that the parties submitted that the bookings for Ramleela Sites were already delayed, the court requested DDA to adhere to the timeline given in the order.

Counsel for Petitioners: Mr. Piyush Gupta, Mr. Karan Aggarwal, Mr. Himanshu Gupta, Ms. Khushboo Rai and Mr. Saurav Dogra, Advs

Counsel for Respondents: Ms. Manika Tripathy, Standing Counsel with Mr. Ashutosh Kaushik, Mr. Dishant Bhati and Mr. D.S. Bhardwaz, Advs. for R-1; Ms. Mehak Nakra, ASC with Ms. Aditi Kapoor and Mr. Devansh Solanki, Advs. for R-2; Ms. Shalini Pasricha, Adv. for R-3; Mr. Gaurav Seth and Ms. Akanksha Mehra, Advs. for R-4 &5

Title: SHREE HANUMANT DHARMIK RAMLEELA COMMITTEE REGD & ANR. v. DELHI DEVELOPMENT AUTHORITY & ORS.

No Illegality: High Court Dismisses Punjab AAP MLA Jaswant Singh's Plea Challenging His Arrest By ED

The Punjab and Haryana High Court has dismissed Aam Admi Party (AAP) Punjab MLA Jaswant Singh's plea challenging his arrest by the Enforcement Directorate (ED).

The Court rejected the contention that the material in possession against him, including the memo of arrest and the grounds of arrest had been sent to the Adjudicating Authority two days after the arrest whereas it should have been sent immediately.

Justice Anupinder Singh Grewal and Justice Kirti Singh said that under Section 19 (2) of PMLA it is nowhere specified that the material should be sent on the day of arrest as the term used is "immediately after arrest".

"...it is not specified that information has to be sent on the day the arrest is effected. Therefore, we do not find any illegality in the same being sent to the Adjudicating Authority a day after. Even if it has been sent after 02 days, it could not be said that the provisions of Section 19(2) of the PMLA have not been complied with," the bench opined.

The Court referred to Apex Court's decision in Ram Kishor Arora Vs. Directorate of Enforcement (supra) where the expression "as soon as possible" in relation to the communication of the grounds of arrest was interpreted to be within 24 hours of the arrest, however the bench said that, "but there is no such mandate for sending the material to the Adjudicating Authority the same day or within 24 hours. Therefore, it is difficult for this court to arrive at the conclusion that sending material in possession to the Adjudicating Authority after a day or two would not be a sufficient compliance of Section 19(2) of the PMLA."

The Court was hearing AAP MLA's plea challenging his arrest by ED. Jaswant Singh was booked under PMLA for allegedly being a director and guarantor of a company M/s TCL, which had obtained loan and credit facilities of over Rs.46 crores.

The amount is alleged to have been diverted to other companies, contrary to the terms and conditions of extending the credit facilities. A sum of Rs.3.12 crores is also stated to have been diverted into the personal account of the AAP leader.

The account of M/s TCL was declared as fraud on 09.02.2018 on the basis of forensic audit report, and the matter was reported to RBI. The petitioner had been issued summons to join investigation on several occasions but he did not appear before the investigating agency. Singh was arrested by ED in November, 2023.

After hearing the submissions, the Court rejected the contention that summons had not been issued to Singh.

The bench highlighted that "the written grounds of arrest were served to him as is borne out by his signatures appended thereupon and available on the record. We are therefore satisfied that there is substantive compliance of Section 19(1) of the PMLA."

It added that, the Supreme Court in Ram Kishor Arora v. Directorate of Enforcement (supra), while considering the judgments in the cases of Pankaj Bansal Vs. Union of India and others (supra) and V. Senthil Balaii Vs. State and others (supra) had opined that if the written grounds of arrest have been communicated to the accused and signed by him, it would be sufficient compliance of Section 19(1) of the PMLA and Article 22(1) of the Constitution of India.

In the light of the above, the Court held that "the arrest of the petitioner is in consonance with Section 19 (1) of the PMLA and we do not find any manifest illegality in the orders of remand and subsequent proceedings."

Consequently the plea was dismissed.

Sr. Advocates Randeep S. Rai, Anand Chhibber, Vikram Chaudhari for the petitioner.

Satyapal Jain, Addl. Solicitor General of India with Lokesh Narang, Senior Panel counsel for UOI.

Title: Jaswant Singh v. UOI & Anr.

Arvind Kejriwal Moves Supreme Court Seeking Extension Of Interim Bail In Delhi Liquor Policy Case.

In the latest development, Delhi Chief Minister Arvind Kejriwal has moved the Supreme Court seeking extension of interim bail granted to him in the Delhi Liquor Policy case on May 10.

The Aam Aadmi Party chief, who was released from judicial custody as an interim measure for the purposes of campaigning during Lok Sabha elections, said that he has to undergo diagnostic tests/investigations, including PET-CT Scan. He seeks an extension of the relief for a period of 7 days.

It may be recalled that Kejriwal was arrested by the ED from his residence on March 21, after the Delhi High Court refused to grant him interim relief earlier in the day. He remained in custody since then till May 10, when the top Court granted him the benefit of interim release till June 1 subject to certain conditions.

While directing interim release of Kejriwal, the bench of Justices Sanjiv Khanna and Dipankar Datta had observed that it was dealing with the case of an elected Chief Minister who was not a threat to society. It was further noted that the ED investigation remained pending for about 1.5 years (before Kejriwal's ultimate arrest shortly after elections were notified) and therefore a liberal view was justified, also as general elections were ongoing, which are a once-in-5-years affair.

Background

To recap, Kejriwal was arrested in the case on March 21, following denial of interim protection by the Delhi High Court. He moved the Supreme Court on the night of his arrest itself, however, this petition was withdrawn the next day as it was clashing with ED's application for remand before the Trial Court. Senior Advocate Dr AM Singhvi, on behalf of Kejriwal, had mentioned to a Justice Sanjiv Khanna-led Bench at the time that Kejriwal would fight the remand and come back

Following the arrest, although the remand was resisted, the AAP chief remained in custody. At first, on March 22, the Trial Court remanded him to 6 days' ED custody. Later, the same was extended by 4 days. On April 1, he was remanded to judicial custody till April 15.

When the matter was listed on April 15, Kejriwal's judicial custody was extended till April 23. On the next hearing, the custody came to be extended till May 7.

ED alleges that Kejriwal was the kingpin and key conspirator of the alleged Delhi Liquor Policy scam and there are reasons to believe on the basis of material in its possession that he is guilty of the offence of money laundering. Relying on Section 70 PMLA, the agency avers that Kejriwal (being national convener of AAP) is vicariously liable for his party utilizing Rs 45 crores (part of proceeds of crime) for Goa elections.

AAP leaders Manish Sisodia and Sanjay Singh are also accused in the case. While Singh was granted bail by the Supreme Court pursuant to a concession given by the ED, the Delhi High Court recently denied Sisodia's plea for regular bail in the money laundering and corruption cases, saying that he misused power and breached public trust.

'Systemic Fraud, Faith Of People In Public Employment Cannot Be Played With' : Supreme Court Slams WB SSC For Not Maintaining Data Of Answer Sheets

'Systemic Fraud, Faith Of People In Public Employment Cannot Be Played With' : Supreme Court Slams WB SSC For Not Maintaining Data Of Answer Sheets.

The Supreme Court today (May 7) came down heavily upon the West Bengal School Service Commission (SSC) for lapses in data preservation of the scanned images of OMR sheets which are the main source of evidence in the ongoing challenge to the cancellation of 25000 appointments made by the State in recruiting class teachers.

The bench led by CJI DY Chandrachud was hearing the issue against the Calcutta High Court's invalidation of teaching jobs across government and aided schools. During the hearing, the CJI, disappointed by the careless conduct of SSC in maintaining proper data of the OMR scans after destroying the original sheets, termed the conduct as 'systemic fraud'.

Highlighting the sensitivity of the irresponsible conduct of the commission and how it had a far-reaching impact on appointments of a huge magnitude, the CJI said that such an instance only diminishes the citizens' confidence in the idea of public employment. It was spotlighted how in today's time government jobs are not just seen as not just as employment but rather as a tool for 'social mobility' for the underprivileged to rise above in the social ranks.

"This is systemic fraud, ultimately what happens is that today public jobs are so scarce and so valued, today, that if the faith of the community in public employment goes then nothing remains..this is a source of social mobility for the people coming from the lower strata. People only aspire that my daughter or son will get a government job. If this is the way, I mean we are virtually lowering public employment what remains in the system?"

Senior Advocate Mr Jaideep Gupta appearing for the School Service Commission (SSC) informed the Court that the commission was not maintaining any data records in its server of the mirror images of the OMR sheets, after the said answer sheets were destroyed. On query by the bench, it was informed that the company 'NYSA' or 'NYCE' was given a limited tender by SSC to carry out the data scanning of the OMR sheets.

The CJI, however taking objection as to how a third party was outsourced and entrusted with confidential answer sheets, questioned the ignorant conduct of the commission. It may be noted that NYSA had further hired another agency 'Data Scan-Tech Solutions' based out of Noida to carry out the scanning of the OMR sheets and preserve the mirror images in the server of NYSA.

"The fact that you did not prevent outsourcing shows that you have just turned a blind eye to the whole sanctity of the process"

The senior counsel submitted that the SSC was not aware of the said outsourcing for data scanning of the OMR sheets by NYCE.

"There was no indication that the persons who have come in were somebody else and not NYCE! that's my lords not intended to be a pun"

The CJI reverted asking if the SSC staff was not attentive when the employees of the outsourced agency entered the office of the commission to collect and scan the data. He gave the example of how even in the Supreme Court scanning centres, the Supreme Court staff is aware of who is coming to scan.

Taking a serious view of the apparent breach of confidentiality of data and non-maintenance of the data by SSC, the CJI termed it to be a 'great breach of security protocols'.

"Can there be a greater breach of security protocols? it is worse to have your data in some outsourcing agency's servers ....you are the statutory body, you allow the entire scanned data to be preserved by an outsourcing agency? its only a labour provided to do the scanning....you cannot say that NYCE took it away, you are responsible for maintaining the data, it is people's data."

Mr Gupta however rebutted that the said data stored in the NYSA server is being relied upon by the CBI in charge sheeting the concerned persons and that the authenticity of the data could not be under challenge.

RTI Queries Wrongly Told That SSC Preserved Database: CJI Takes Stern View

The CJI pointing at the responses given to the RTI applications asking for the data on OMR sheets, highlighted that up until now the SSC was wrongly portraying to the public queries that they were the custodians of the OMR scanned data.

" So you have responded to RTI queries that this is from my database, and now its come to light that this is not from your database at all. What you were saying to the RTI applicants that this is from my database, that is incorrect."

It was further observed by the CJI that the commission failed to keep supervisory control over the maintenance and preservation of the data.

"Either you have the data, or you don't have the data, you were duty bound to maintain the documents in digitised form, you provide RTI responses that this is from my database....now there it is obvious that there is no data, you are unaware of the fact that your service provider has engaged another agency, you had to keep supervisory control."

Details Of The High Court Order:-

In a detailed order running into more than 280 pages, a division bench of Justices Debangsu Basak and Md Shabbar Rashidi cancelled the entire panel of the 2016 SSC Recruitment upon finding irregularities with OMR sheets and ordered the state to conduct fresh examinations for the same.

Not only this, but the High Court also directed the appointees, who were recognised to have been fraudulently appointed, to return the salary they had drawn.

The Court observed that the entire panel of recruitment originating out of the 2016 recruitment process had been tainted due to the irregularities with the OMR sheets, many of which were found blank, and were liable to be cancelled. The Court also found that many of those whose appointments had been challenged had been appointed after the panel for the 2016 recruitment had expired by submitting blank OMR sheets.

In view of the above projection, the High Court had also directed an investigation into those who perpetrated the fraud and disposed of the pleas by cancelling the entire 2016 SSC Recruitment Panel.

Subsequently, the CBI chargesheeted the alleged persons involved on the basis of the data stored with service provider NYSA as the original OMR sheets were destroyed by the SSC as per protocol. The data was also used to charge the former employee of the service provider NYSA Mr Pankaj Bansal from whom the data was recovered in the first place.

In its order, the Top Court today also modified its earlier interim order protecting the appointments made in pursuance of the alleged West Bengal SSC recruitment scam, stating that those appointees whose appointments are found to be illegal shall be liable to refund their salaries. the CBI was further permitted to continue its probe to determine the officials involved but precluded the agency from taking any coercive steps. The matter is now posted to July 16.

Case Details : THE STATE OF WEST BENGAL vs. BAISHAKHI BHATTACHARYYA (CHATTERJEE) SLP(C) No. 009586 - / 2024

NDPS Act | Officer Must Mandatory Record In Writing Reasons For Arrest/Search As Per S.41(2), Violation Will Vitiate Trial: Supreme Court

 

The Supreme Court recently (on April 09) overturned the conviction of the accused individuals under the Narcotic Drugs and Psychotropic Substances Act, 1985 (Act), rejecting the interpretation of Section 41 (Power to issue warrant and authorization) put forth by the National Bureau of Narcotics.

Imperatively, this Section empowers the competent officer to arrest or conduct a search. To do so, the officer must have a reason to believe that an offence that requires a search has been committed. As per Section 41(2) of the Act, such reason to believe must arise either from personal knowledge of the said Officer or information given by any person to him. Additionally, such knowledge or information is required to be reduced into writing by virtue of expression “and taken in writing.” 

In the present case, there was no written information, as stipulated under the Act, with the raiding party before it commenced the search in the accused house. In this context, the Court turned down the National Bureau of Narcotics's contention that there is no need to take down information when it arises from personal knowledge.

“The learned Counsel of the Respondent No. 02 presents an alternate argument that the expressions “personal knowledge” and “and taken in writing” contemplated by Section 41(2) of the NDPS Act 1985 ought to be read disjunctively, thereby eliminating the requirement of taking down information in writing when it arises out of the personal knowledge of the Gazetted Officer. We are not inclined to accept this interpretation.,” the Court said.

To bolster this finding, the Court also cited the case of State of Punjab v. Balbir Singh (1994) 3 SCC 299. In this case, the Court had stressed on recording the reasons specifically when the empowered officer has a reason to personally believe that an offence under the act has been committed and a search is necessary between sunset and sunrise. The Court also went on to add in Balbir Sing, “To this extent, these provisions are mandatory, and contravention of the same would affect the prosecution case and vitiate the trial.”

The facts of this case are such that one Krishna Chaube (Intelligence Officer/Inspector) had received secret information that Accused No. 04 would be carrying narcotic substances in an auto-rickshaw. She recorded the secret information and reported it to her superior officer, Pawan Singh Tomar. However, as per the prosecution's stance, the accused sped away at a high speed to escape from the raiding team. Thereafter, the team found the abandoned vehicle, though the accused had escaped. Eventually, the team conducted a search in the accused's house and arrested all the involved accused persons. The Trial Court convicted three accused persons and acquitted the remaining two. The High Court also did not interfere with the conviction. In this background, the case traveled to the Supreme Court.

In the stream of observations, the Top Court also highlighted that when the search was conducted in the house of an accused, there was neither personal knowledge nor any other information. The information received by the officer who conducted the search was limited to the extent that an auto rickshaw was carrying contraband. Nevertheless, there was no indication of any possession of contraband in the accused's home that prompted the instant search. 

“From the aforementioned, we are of the view that the raid/search conducted at the house of the Accused No. 01 and Accused No. 04 was not based on the personal knowledge of Mr Tomar, rather it was an action on the part of raiding party bereft of mandatory statutory compliance of Section 41(2) of the NDPS Act 1985.,” the Court said.

Pointing out these procedural discrepancies, the bench of Justices Aniruddha Bose and Augustine George Masih also recognised the statutory safeguards granted to the accused and how the authorities have failed to protect the same in the instant case. At the same time, the Court also reiterated that the power to search and seize is a mere temporary interference with the rights of the accused. This is due to the reasonable restrictions outlined within the provisions themselves. Thence, such a power cannot be considered as a violation of any fundamental rights of the person concerned., the Court added. 

Other Relevant Observations Of The Supreme Court

While examining the facts of the case, the court referred to Section 6 of the Indian Evidence Act of 1872. This provision deals with the relevancy of facts forming part of the same transaction. To elaborate on this principle further, the Court relied upon the decision of Gentela Vijyvardhan Rao and Anr. v. State of Andhra Pradesh (1996) 6 SCC 241. In this case, the Court held that it was based on the spontaneity and immediacy of such statement or fact in relation to the fact in issue. However, if there was an interval which ought to have been sufficient for the purpose of fabrication, then the said statement is not part of the same transaction.

Applying the same principle in the facts and circumstances of this case, the Court observed that there was a sufficient time gap between the abandoning of the vehicle and the search of the house as conducted by the officers.

“Moreover, it appears from the record that even the idea to search the house was for the purpose of recovery of more contraband and not to apprehend the said absconded accused at the first instance.,” the Court added.

Based on this, the Court concluded that the said search was not a continuance of the search in the auto, which was based on secret information.

Further, the Court pointed out another discrepancy that created doubt. The Court emphasized that the owner of the auto-rickshaw was never attempted to be identified. Moreover, the person whose driver's license was found was never searched for by the authorities.

“It does not transpire from the material on record as to exactly how the Accused No. 04 came into the fiasco here except for the claim by Mr Tomar of having identified him as the auto rickshaw per the secret information fled the scene. It creates a doubt in the mind of the Court apropos the case presented by the prosecution.,” the Court stated.

Against this backdrop, the Court noted that the case against accused No. 4 has not been proved beyond a reasonable doubt. The inconsistencies in the testimonies and lack of observation of due process of law by the investigating agency has severely impacted the case of the prosecution., the Court added.

“Consequently, the conviction of Accused No. 01 premised on the recovery of 2.098 kilograms of charas from the house is not in consonance with the mandatory statutory compliance of Section 41(2) of the NDPS Act 1985.,” the Court concluded and proceeded to give the benefit of doubt to the accused persons. Thus, the Court set aside the impugned judgments of the High Court as well as of the Trial Court.

Case Title: Smt. Najmunisha, Abdul Hamid Chandmiya alias Ladoo Bapu Vs. State of Gujarat, Narcotics Control Bureau