Anticipatory bail: No difference in proclamation issued under Sec 82(1) or Sec 82(4) of CrPC: MP High Court - The Daily Guardian
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Anticipatory bail: No difference in proclamation issued under Sec 82(1) or Sec 82(4) of CrPC: MP High Court

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In a clear, categorical, cogent and convincing judgment titled Smt. Kantabai w/o Ashok Bhandari Vs State of Madhya Pradesh in Miscellaneous Criminal Case No.4730/2021 delivered just recently on July 7, 2021, the Madhya Pradesh High Court has held in a significant observation that for the purposes of anticipatory bail, proclamation proceedings under Section 82(1) and Section 82(4) of the Code of Criminal Procedure, 1973 are similar in effect. Justice Subodh Abhyankar while adjudicating upon a pre-arrest bail plea opined that, “The general principle that appears is that for the purposes of an anticipatory bail, a proclaimed offender also includes an offender or a proclaimed person against whom a proclamation under Section 82(1) of CrPC has also been issued.” The law laid down as stated at the outset of this notable judgment very clearly lays down that, “Section 82 (4) of Criminal Procedure Code for declaring an accused as a proclaimed offender is identical to Section 82 (1) of the Code. The only difference is the penal provisions for the same as provided under s. 174A of IPC. The general principle that Lavesh v. State (NCT of Delhi) reported as (2012) 8 SCC 73 lays down is that for the purposes of an anticipatory bail, a proclaimed offender also includes an offender or a proclaimed person against whom a proclamation u/s.82 (1) of Cr.P.C. has also been issued. Judgements relied upon by counsel for the applicant 1. Sanjay Sarin versus State (Union Territory, Chandigarh), 2. RahulDutta v. State of Haryana, 3. Rishabh Seth v. State of Rajasthan & another and 4. Satinder Singh v. The State of U.T. Chandigarh & another(supra); were distinguished. Judgment relied upon: Lavesh v. State (NCT of Delhi) reported as (2012) 8 SCC 73.”

To start with, a Single Judge Bench comprising of Justice Subodh Abhyankar of Indore Bench of Madhya Pradesh High Court who has authored this notable judgment sets the ball rolling by first and foremost observing in para 1 that, “This is applicant’s (repeat) second application under Section 438 of Criminal Procedure Code, 1973 for grant of anticipatory bail, as the present applicant is apprehending his / her arrest in connection with Crime No.391/2019 registered at Police Station Rajgarh, Tahsil Sardarpur District Dhar (MP) for offence punishable under under Sections 409 and 420 read with Section 34 of the Indian Penal Code, 1860. The earlier anticipatory bail application of the applicant Miscellaneous Criminal Case No.9537/2020 was dismissed on 03.03.2020 by this court as not pressed, as the counsel had no instructions.”

To put things in perspective, the Bench then puts forth in para 2 that, “In brief, the facts of the case are that one Rajesh Victor, an Accounts Officer of the Cooperative Department, Dhar lodged an FIR on 30.08.2019 against the Office Bearers of Shri Rajendra Suri Sakh Sahakari Sanstha Maryadit Rajgarh for serious financial irregularities committed by them in disbursing the loan amount to its members and also while obtaining the Fixed Deposits from its Members. The amount runs into crores of rupees. Admittedly against the present applicant a proclamation has already been issued under Section 82 of the Code of Criminal Procedure, 1973.”

On the one hand, the Bench then states in para 3 that, “Shri Rathi has also submitted that the applicant is not declared as a proclaimed offender u/s.82(4) of Cr.P.C. which is a prerequisite to declare a person a proclaimed offender as the applicant has not been charged with any of the sections as provide under s.82(4) of Cr.P.C. which include sections 302, 304, 364, 367,382, 392, 393, 394, 395, 396, 397,398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code (45 of 1860) as the applicant is charged under Sections 409 and 420 read with Section 34 of IPC only. In support of his contentions, Shri Rathi has relied upon the following decisions: – 1. Sanjay Sarin v. State (Union Territory, Chandigarh) reported as (2013) Cri. L.J. 408, 2. Rahul Dutta v. State of Haryana reported as 2012 (2) R.C.R. (Criminal) 585, 3. Rishabh Seth v. State of Rajasthan & another decision dated 08.03.2018 in Criminal Miscellaneous (Petition) No.5767/2017 of Rajasthan High Court (Jaipur Bench) and 4. Satinder Singh v. The State of U.T. Chandigarh & another reported as 2011 (2) R.C.R. (Criminal) 89.”

On the other hand, the Bench then observes in para 4 that, “Learned counsel for the respondent / State, on the other hand, has opposed the prayer.”

Most remarkably, the Bench then minces no words to hold in para 5 that, “On due consideration of the rival submissions and on perusal of the case diary including the documents filed by the applicant, this Court finds that, against the applicant the proclamation proceedings under Section 82 of the Code of Criminal Procedure, 1973 have already been concluded on 10.2.2020. Since it has not been challenged, it has already attained the finality and as such the correctness of the same cannot be gone into in this bail application. So far as the contentions raised by Shri Rathi that an accused can be declared as proclaimed offender only in terms of s. 82(4) of Cr.P.C. is concerned, this court does not find any merits in said claim, this is for the reasons that even when a proclamation is made u/s. 82(1) of Cr.P.C., it is also a declaration that the accused has absconded and against whom a publication is made. The procedure adopted u/s. 82(4) of Cr.P.C. is no different than the procedure adopted u/s. 82(1) of Cr.P.C. The only difference is the penal provisions for the same as provided under s.174A of IPC which reads as under:-

“174-A. Non-appearance in response to a proclamation under Section 82 of Act 2 of 1974.—Whoever fails to appear at the specified place and the specified time as required by a proclamation published under subsection (1) of Section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under subsection (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.]”.”

Be it noted, the Bench then hastens to add in para 6 that, “Thus, this court finds that the distinction between s.82(4) and s.82(1) of Cr.P.C. is that u/s.82(4), the sections of IPC which have been enumerated are 302, 304, 364, 367,382, 392, 393, 394, 395, 396, 397,398, 399, 400, 402, 436, 449, 459 or 460 only and although the reason behind this classification is not known, for the violation of s.82(4) of Cr.P.C. the imprisonment is upto seven years and fine, whereas, all the other offences, excepting those provided u/s.82(4) of IPC have penal consequences of imprisonment upto 3 years and fine only and such offences would include, inter alia, s.498A, 304B of IPC. This analogy is also vindicated by the decision in the case of Lavesh v. State (NCT of Delhi) reported in (2012) 8 SCC 73 which is not a case under any of the sections as provided u/s.82(4) of Cr.P.C. which can be ascertained from the facts of that case, the relevant para of Lavesh (supra) reads as under:-

“3. On 19-1-2010, the younger brother of the appellant got married to Vibha (since deceased). He lived with his wife on the first floor of the same house. On 1-9-2011, Vibha committed suicide. On the same day, the mother of the deceased lodged a complaint against the family members of the husband of the deceased with Police Station Punjabi Bagh, New Delhi.

4. On the basis of the complaint, an FIR was registered vide No. 259 of 2011 at Punjabi Bagh Police Station. On the same day, the husband and the mother-in-law of the deceased were arrested. The appellant herein moved an application for anticipatory bail. The Additional Sessions Judge, Delhi, by order dated 5-11-2011, dismissed the said application.

10. According to the prosecution, if we look into all the above particulars coupled with the supplementary statements, it has been clearly made out, particularly, insofar as the appellant is concerned, that there was a definite allegation against him. Further, the appellant and other family members subjected the deceased to cruelty with a view to demand dowry, right from the date of marriage and also immediately before the date of her death.” (emphasis supplied).”

Interestingly enough, the Bench while adding more to it then observes in para 7 that, “Apparent from the above, the offences in the Lavesh’s case were under s.498A/304B of IPC, which has also been verified by this court from the original order passed by the Delhi High court itself in the case of Lavesh vs. State NCT of Delhi, passed in Bail Application No.1602/2011 dated 05.12.2011. Interestingly, both these sections are not to be found under s.82(4) of IPC which includes sections 302, 304, 364, 367,382, 392, 393, 394, 395, 396, 397,398, 399, 400, 402, 436, 449, 459 or 460 of IPC, in such circumstances, it only leads to one and only logical conclusion that in Lavesh’s case, the Supreme Court has not distinguished between a proclamation under s.82(1) of Cr.P.C. and s.82(4) of Cr.P.C. and the general principle that appears is that for the purposes of an anticipatory bail, a proclaimed offender also includes an offender or a proclaimed person against whom a proclamation u/s.82(1) of Cr.P.C. has also been issued.”

While pooh-poohing the contentions raised by Rathi, the Bench then quite emphatically holds in para 8 that, “The decisions relied upon by Shri Rathi, viz.: – 1. Sanjay Sarin versus State (Union Territory, Chandigarh), 2. Rahul Dutta v. State of Haryana, 3. Rishabh Seth v. State of Rajasthan & another and 4. Satinder Singh v. The State of U.T. Chandigarh & another(supra); are also distinguishable as they only deal with the issue that whether any offender not falling under the purview of s.82(4) of CRPC can still be declared as proclaimed offender, but none of these decisions have dealt with an anticipatory bail u/s.438 of Cr.P.C. and have dealt with the matter u/s.482 of Cr.P.C. wherein only the correctness of an order passed by the trial court u/s.82(4) of Cr.P.C. was under challenged in which the trial court had declared the offender as proclaimed offender under sections other than enumerated u/s.82(4) of Cr.P.C.

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Thus, on the aforementioned discussion, this court is of the considered opinion that the contentions raised by Shri Rathi’s have no merits and are hereby rejected.”

Quite remarkably, the Bench then holds in para 9 that, “This Court also finds that even otherwise, other co-accused persons’ application under Section 482 of the Code of Criminal Procedure for quashing of the FIR, was dismissed by this Court in Miscellaneous Criminal Case No.41268/2019 vide order dated 04.02.2020 and the same was challenged before the Supreme Court in Special Leave to Appeal (Criminal) No.2579/2020 which also came to be dismissed on 17.06.2020, with the following observations: –

“This Special Leave Petition arising out of High Court judgment for quashing of FIR is rejected.

However, the petitioners are at liberty to take recourse to other appropriate remedies as may be permissible in law, including to apply for regular bail.

No coercive action be taken against the petitioners for a period of two weeks to enable them to surrender before the concerned Court and apply for regular bail. If the petitioners give advance notice of 48 hours to the public prosecutor before moving the bail application, the trial court may consider the bail application preferably on the same day. Needless to observe that the bail application be decided on its own merits without being influenced by any observation in the impugned judgment. All contentions and remedies available to the petitioners are left open.

The Special Leave Petition is dismissed accordingly.

Pending applications, if any, stand disposed of.””

It would be worthwhile to mention that the Bench then while rejecting the application held in para 10 that, “Thus, the other accused persons who had filed the SLP have also got no relief from the Supreme Court except that they can surrender before the lower Court and apply for grant of regular bail before the lower Court. It is true that two weeks breathing time was granted to the petitioners but that was on 17.06.2020 and it has been more than one year since then. In such circumstances, in the present case, this Court is not inclined to allow the anticipatory bail application. Accordingly, Miscellaneous Criminal Case No.4730/2021 is hereby dismissed.”

Finally, the Bench then concludes by holding in the concluding para 11 that, “Accordingly, Miscellaneous Criminal Case No.4730/2021 is hereby dismissed. However, the applicant shall be at liberty to surrender before the trial Court; and if he / she surrenders before the trial Court within a period of one week from the date of receipt of certified copy of this order, then the same shall be decided by the learned Judge of the trial Court, in accordance with law as expeditiously as possible.”

In short, this noteworthy judgment by a Single Judge Bench of Indore Bench of Madhya Pradesh High Court at Jabalpur comprising of Justice Subodh Abhyankar makes it absolutely clear that for the purposes of anticipatory bail, there is no difference between proclamation issued under Section 82(1) or 82(4) of CrPC. It has accorded adequate reasons for it as already discussed above in detail.

This was held so while adjudicating upon a pre-arrest bail plea. Thus for the purpose of granting anticipatory bail, an absconding offender can be proclaimed under either of these two provisions as pointed out in case of Lavesh v State (NCT of Delhi) decided by Apex Court as already discussed hereinabove! It will make just no difference!

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Legally Speaking

UTTARAKHAND HC SAYS UTTARKASHI’S BAN ON “MEAT SHOPS” WITHIN 500 METRES OF “RIVER GANGA” IN LINE WITH CONSTITUTIONAL SCHEME

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It is interesting to note that while fully, firmly and finally very rightly and commendably upholding the ban that was imposed on meat shops that was enacted by the Zila Panchayat of Uttarkashi District, the Uttarakhand High Court in an extremely remarkable, robust, refreshing and rational judgment titled Naved Qureshi vs State of Uttarakhand & Ors in Writ Petition (MS) No. 2073 of 2016 that was pronounced recently on July 20, 2022 has expressed its consonance with a bye-law of Zila Panchayat, Uttarkashi to the effect that no shop for butchering animals and selling meat within 500m from the bank of river Ganga shall be permitted. It must be noticed here that the Single Judge Bench of Hon’ble Mr Justice Sanjaya Kumar Mishra said quite clearly that keeping in view the “special status” of Uttarakhand and the river Ganga that emerges from District Uttarkashi and the sanctity attached with the river Ganga by majority of population of Uttarakhand, the decision taken by the Zila Panchayat by making the said bye-laws is in line with the scheme of Constitution of India, as envisaged in Part IX. It very rightly ruled that the District Magistrate had not committed any error in not issuing a no objection certificate to the petitioner to run a mutton shop, at a premises situated at 105 metres distance from the bank of Ganga.

At the outset, this extremely laudable, learned, landmark and latest judgment authored by a Single Judge Bench of the Uttarakhand High Court comprising of Hon’ble Mr Justice Sanjaya Kumar Mishra sets the ball rolling by first and foremost putting forth lucidly in para 1 that, “By filing this writ petition, the petitioner has prayed for the following reliefs:

“i. Issue a writ, order or direction in the nature of certiorari calling for the original record and pleased to quash the impugned order dated 08.06.2016 (Annexure – 2) passed by the respondent no. 2 i.e. District Magistrate, Uttarkashi, District Uttarkashi.

ii. Issue a writ, order or direction in the nature of Mandamus directing and commanding the respondents that they shall not interfere in the peaceful business activities i.e. in running the mutton shop in his house situated at the roadside of Gangotri National Highway without any valid reason.

iii. Issue a writ, order or direction in the nature of Prohibition making declaration to the effect that after central enactment of the Food Safety and Standards Act, 2006 the bye-laws no. 3 framed by the respondent Zila Panchayat became illusionary and same are not applicable for the purpose of regulating food safety activities in rural area, therefore, no license from respondent Zila Panchayat is required to do business.””

To put things in perspective, the Bench then envisages in para 2 that, “The facts of the case, not disputed at this stage, are that petitioner is a resident of village Hina Gaon, Police Station – Maneri, District – Uttarkashi. His father was recorded tenure holder having bhumidhari land bearing Khasra Nos. 1555 and 15556, situated in the aforesaid village. He was running a mutton shop since 2006 in a rented accommodation in village – Hina Gaon, after getting license from Zila Panchayat. Though, according to him, license was not required after enforcement of Food Safety and Standards Act, 2006 (hereinafter referred to as “FSS Act, 2006” for brevity). In the year 2012, he also obtained a license from the designated authority under the FSS Act, 2006. Till the year, 2015, he ran his shop at aforesaid rented premises and after construction of his own shop over the bhumidhari land, he shifted his business of butchering and selling mutton into it. On 27.02.2016, respondent no. 3 – Zila Panchayat, Uttarkashi, through Additional Mukhya Adhikari, issued a notice to the petitioner to shift his mutton shop, within 7 days to another place, as his shop is situated 105 metre away from the bank of river Ganga, which is violative of the existing by-laws. As per the by-laws, operation of mutton/chicken shop within 500 metres from the bank of river Ganga is prohibited. On 15.03.2016, petitioner being aggrieved by the notice, preferred a Writ Petition (MS) No. 651 of 2016, which was disposed of, in limine, by this Court by giving opportunity to the petitioner to file a representation before the Authorities and with a direction to the Authorities to dispose of the same. Thereafter, on 09.05.2016, the petitioner served a copy of the aforesaid order on respondents no. 2 and 3 and prayed for issuance of license for the next financial year 2016-17 but the respondent no. 2 – District Magistrate, Uttarkashi vide order dated 09.05.2016 rejected the representation of the petitioner on the basis of the Resolutions of meeting held on 04.05.2016.”

In this same para 2, it is then further mentioned that, “Feeling aggrieved by the aforesaid order dated 09.05.2016 and minutes of meeting dated 04.05.2016, the petitioner preferred a Writ Petition (MS) No. 1383 of 2016 wherein respondents were directed to file counter affidavit within four weeks and the said writ petition is still pending. In the meantime, petitioner again represented before respondent no. 2 – District Magistrate, Uttarkashi to grant him no objection certificate, which was again rejected. The said order of the learned District Magistrate, Uttarkashi is assailed in this writ petition.”

On the one hand, the Bench then points out in para 3 that, “Learned counsel for the petitioner would submit that the only ground on which his application for grant of no objection certificate has been rejected by the District Magistrate, Uttarkashi is that his shop is situated within 500 metre from the bank of river Ganga. According to the petitioner, after passing of the FSS Act, 2006, the jurisdiction of Zila Panchayat is ceased to operate and it is only the Designated Authority, under the FSS Act, 2006 has authority to grant license or reject it in favour of the petitioner for running a shop for selling and butchering the animals. Therefore, he prayed that annexure no. 2 to the writ petition be quashed and it be declared that FSS Act, 2006 shall have overriding effect on the by-laws issued by the Zila Panchayat.”

On the other hand, the Bench then mentions in para 4 that, “Learned counsel for the State would submit that petitioner was granted license by the Designated Authority to run the shop at a particular place but he shifted his shop, after getting the license from the Designated Authority under the FSS Act, 2006, to another place, which came within 500 metre from the bank of river Ganga, therefore, no objection certificate was not granted to him and order passed by District Magistrate, Uttarkashi does not have any infirmity or perversity and requires no interference.”

Furthermore, the Bench then succinctly discloses in para 5 that, “Learned counsel for the State further submits that as per Section 106 (1) of the Uttarakhand Panchayati Raj Act, 2016, the Zila Panchayats have powers to make by-laws. Section 106 of the Uttarakhand Panchayati Raj Act, 2016 is quoted as under:

“106 Powers of Zila Panchayat to make bye-laws (1) A Zila Panchayat may, and where required by the State Government shall, make bye-laws for its own purposes and for the purposes of {Kshettra Panchayats}, applicable to the whole or any part of the rural area of the district, consistent with this Act and with any rule, in respect of matters required by this Act to be governed by bye-laws and for the purposes of promoting or maintaining the health, safety and convenience of the inhabitants of the rural area of the district and for the furtherance of the administration of this Act in the Khand and the district.””

Needless to state, the Bench then notes explicitly in para 6 that, “Article 243 (Part IX) of the Constitution of India provides for formation of Gram Sabha and Gram Panchayat. Article 243 G provides for the powers, authority and responsibilities of Panchayats. For better appreciation of the matter, it is quoted below:

“243G. Powers, authority and responsibilities of Panchayats – Subject to the provisions of this Constitution the Legislature of a State may, by law, endow the Panchayats with such powers and authority and may be necessary to enable them to function as institutions of self government and such law may contain provisions for the devolution of powers and responsibilities upon Panchayats, at the appropriate level, subject to such conditions as may be specified therein, with respect to –

(a) the preparation of plans for economic development and social justice;

(b) the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule.””

Quite ostensibly, the Bench then enunciates in para 7 that, “Thus, it is apparent from the aforesaid Article that the Constitution recognises the Zila Panchayats, as sovereign authorities, having powers to plan for economic development and social justice, as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule. Article 243 G also provides that the Legislature of a State, may by law, endow the Panchayats with such powers and authority as may be necessary to enable them to function as institutions of self government. Entry 4 in the Eleventh Schedule of the Constitution of India provides for animal husbandry, dairying and poultry. Entry 22 provides for markets and fairs. Thus, it is clear that as far as markets and fairs and animal husbandry, dairying and poultry are concerned, the Zila Panchayat, as an institution of self government, may function to regulate animal husbandry etc. as mentioned above.”

Be it noted, the Bench then quite forthrightly holds in para 8 that, “Therefore, the contention of learned counsel for the petitioner that after passing of the FSS Act, 2006, the powers of Zila Panchayat ceased to operate with respect to food items does not appears to be correct. Since, the Zila Panchayats have been granted powers to act as institutions of self government, the provisions made by Zila Panchayat has to be harmoniously constructed with the provisions of the FSS Act, 2006.”

Most significantly, what truly constitutes the cornerstone of this notable judgment is then encapsulated in para 9 wherein it is held that, “In view of the above, this Court is of the opinion that no objection certificate is mandatory to be obtained from the Zila Panchayat or the District Magistrate for running a mutton shop in the present matter. At the same time, keeping in view the special status of State of Uttarakhand and the river Ganga that emerges from District Uttarkashi and the sanctity attached with the river Ganga by majority of population of Uttarakhand, the decision taken by the Zila Panchayat by making by-laws to the effect that no shop for butchering the animals and selling the meat within 500 metres from the bank of river Ganga appears in line with the scheme of Constitution of India, as envisaged in Part IX. Hence, this Court is of the view that respondent no. 2, District Magistrate, Uttarkashi has not committed any error in not issuing no objection certificate to the petitioner to run a mutton shop within 500 metres from the bank of river Ganga.”

Finally, the Bench then concludes aptly by directing in para 10 that, “Accordingly, the writ petition fails and is hereby dismissed. It is observed that any person, who runs a meat shop for selling and butchering the animals in District Uttarkashi, shall obtain no objection certificate from the concerned authority, in the light of by-laws made by the Zila Panchayat and also obtain license from the designated authority.”

In sum, the Uttarakhand High Court has very rightly held that Uttarkashi’s ban on meat shops within 500 meters of the river Ganga is in line with constitutional scheme. So it definitely merits no reiteration of any kind that the same has to be complied with accordingly in its entirety! No denying it!

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GUJARAT HC GRANTS RELIEF TO PHARMACY DIPLOMA HOLDERS

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The Gujarat High Court in the case Oza Nikun Dashrathbhai v/s State Of Gujarat observed and has come to the rescue of D.Pharm students who were denied registration as ‘Pharmacist’ by the State Pharmacy Council on the ground that they have not undertaken training from medical stores approved the Pharmacy Practice Regulations, 2015.

The Single bench comprising of Justice AS Supehia observed and noted that the Pharmacy Council of India has not approved any medical store under the Regulation for the purpose of imparting practical training of Diploma to the students in Pharmacy Course like the present petitioners.

Court Observations

It was observed that the petitioners cannot be faulted for the action of the respondent authorities in not approving the medical stores under regulation 4.4 of the Regulation of 2015 and hence, no option was there to the petitioner to take their training from the respective medical stores.

It was claimed by the petitioner’s student that the State Council was not registering them as Pharmacists despite having undertaken the necessary training of 500 hours for three months from the respective medical stores.

Further, it was observed that the State had admitted that all documents of the Petitioners were genuine, however, the registration was denied solely for the aforesaid reason. Further, one of the governmental circulars had clarified that the process for granting approval of Chemist/ Pharmacy and Druggist will be notified through the online mode. But the same was targeted only at “prospective students” .

It was noted by the High Court that in order to avoid hardship to current students, who had already undergone or undergoing the D.Pharm course while taking the practical training under the Pharmacy, Chemist and Druggist licensed under the Drugs and Cosmetics Act, 1940, as per precedence students will be considered for the registration, provided the students had undergone the D.Pharm course in an institution approved under PCI under section 12 of the Act.

Accordingly, the High Court directed the State Council to register the Petitioners as Pharmacists within three months.

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Legally Speaking

BASICS, LEGISLATIONS AND NEED FOR A NEW LAW TO DEAL WITH 5G SPECTRUM TECHNOLOGY

Satyajeet A. Desai

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Much like the evolution of humankind over the millennia, the inventions by humans have also evolved with the progress and advances in technology. Right from the invention of the telephone by Graham Bell to the present day wonder phone ; the cellular or mobile phone.

Cellular mobile technology has also benefited greatly from such advances, Think back to the first generation of mobile phones and connectivity options offered and you think of large phone instruments and only voice enabled phones.

Segue to the present day and we have now arrived at the threshold of a major revolution in cellular technology: the 5G network.

What is the 5G network technology? Simply expressed, it is an advancement of technology, but to put it in better terms, what this means is that with higher usage of mobile phones, which have morphed into office equipment or entertainment consoles due to their ease of usage and accessibility, this new technology has the capability of transmitting data at higher speeds, without any perceptible delay ( which is known as low latency in technical terms), which even the current 4G network could not perhaps address.

What are the laws governing 5G network technology? At present, there are no specific regulations or laws that govern this technological advance and it would thus be governed by the existing bouquet of legislations and rules, which are;

Indian Telegraph Act, 1885: This legislation regulates the telecommunication sector, empowering the government to put up infrastructure and licensing of infrastructure.

The Indian Wireless Telegraphy Act, 1933: This legislation regulates the usage of wireless telegraphs in the country.

Telecom Regulatory Authority of India Act, 1997: This act was put into place in order to regulate and settle telecom disputes and an authority know as Telecom Regulatory Authority of India was setup under the legislation . The initial role of the authority was to look into disputes in the sector , its scope was however, expanded to regulate the sector in the country, which in the context of the mobile or cellular technology also includes the grant of licences.

Information Technology Act, 2000: As the name suggests, this act governed information technology, but was later amended in 2008 to include telecom service industry.

Apart from this the guidelines issued by the Government under these enactments would hold the field. Allocation of spectrum would be based upon technical evaluations carried out before granting licences.

What are the requirements to be fulfilled by the applicant telecom companies to obtain 5G spectrum licence? The company must hold a Cellular Mobile Telephone Service Licence or Unified Access Service Licence , Unified Licence with permission/authorisation for access services for the service area for which it has bid for (the region that it has bid for).

Apart from this, the additional or subsidiary conditions that have to be met are:

The company that bids for licenses must have a net worth of Rs. 100 crores for the service area that it has bid for amongst other ancillary requirements.

The stance of the Government: The stance of the Government as reflected on its website https://dot.gov.in/5g-india-2020 is that “ The 5G technology has been conceived as a foundation for expanding the potential of the Networked Society. A digital transformation brought about through the power of connectivity is taking place in almost every industry. The landscape is expanding to include massive scale of “smart things” to be interconnected. Therefore, the manner in which future networks will cope with massively varied demands and a business landscape will be significantly different from today. 

The economic benefits from the 5G technology are also quite immense. As per the OECD (Organization for Economic Cooperation and Development) Committee on Digital Economic Policy, it has been stated that 5G technologies rollout will help in Increasing GDP, Creating Employment, Digitizing the economy.

For India, 5G provides an opportunity for industry to reach out to global markets, and consumers to gain with the economies of scale. Worldwide countries have launched similar Forums and thus, India has joined the race in 5G technologies.

The Government gave the go ahead for 5G spectrum trials as reported on the website,https://www.pib.gov.in/PressReleseDetailm.aspx?PRID=1715927,which stated that-The Department of Telecommunications (DoT), Government of India, approved permissions to Telecom Service Providers (TSPs) for conducting trials for use and applications of 5G technology.  The applicant TSPs include Bharti Airtel Ltd., Reliance JioInfocomm Ltd., Vodafone Idea Ltd. and MTNL.  These TSPs have tied up with original equipment manufacturers and technology providers which are Ericsson, Nokia, Samsung and C-DOT.  In addition, Reliance Jio Infocomm Ltd. will also be conducting trials using its own indigenous technology.

The permissions have been given by DoT as per the priorities and technology partners identified by TSPs themselves.  The experimental spectrum is being given in various bands which include the mid-band (3.2 GHz to 3.67 GHz), millimetre wave band (24.25 GHz to 28.5 GHz) and in Sub-Gigahertz band (700 GHz).  TSPs will also be permitted to use their existing spectrum owned by them (800 MHz, 900 MHz, 1800 MHz and 2500 MHz) for conduct of 5G trials.

The duration of the trials, at present, was for a period of 6 months. This includes a time period of 2 months for procurement and setting up of the equipment.

The permission letters specify that each TSP will have to conduct trials in rural and semi-urban settings also in addition to urban settings so that the benefit of 5G Technology proliferates across the country and is not confined only to urban areas.

The TSPs are encouraged to conduct trials using 5Gi technology in addition to the already known 5G Technology.  It will be recalled that International Telecommunications Union (ITU) has also approved the 5Gi technology, which was advocated by India, as it facilitates much larger reach of the 5G towers and Radio networks .The 5Gi technology has been developed by IIT Madras, Centre of Excellence in Wireless Technology (CEWiT) and IIT Hyderabad.

The objectives of conducting 5G trials include testing 5G spectrum propagation characteristics especially in the Indian context; model tuning and evaluation of chosen equipment and vendors; testing of indigenous technology; testing of applications (such as tele-medicine, tele-education, augmented/ virtual reality, drone-based agricultural monitoring, etc.);and to test 5G phones and devices.

5G technology is expected to deliver improved user experience in terms of data download rates (expected to be 10 times that of 4G), up to three times greater spectrum efficiency, and ultra low latency to enable Industry 4.0. Applications are across a wide range of sectors such as agriculture, education, health, transport, traffic management, smart cities, smart homes, and multiple applications of IOT (Internet of Things).

DoT has specified that the trials will be isolated and not connected with the existing networks of TSPs.  Trials will be on non-commercial basis.  The data generated during the trials shall be stored in India.  TSPs are also expected to facilitate the testing of the indigenously developed use cases and equipment as part of the trials. One hundred applications/ use cases selected by DoT after conducting the recent Hackathon on 5G applications can also be facilitated in these trials. 

Pursuant to the above, trials were carried out successfully, and ultimately, the spectrum auction took place recently and the 5G network is set to be rolled out soon. This is of course, the offering of the network to subscribers for their usage as provided by telecom operators.

Captive usage of 5G spectrum: With huge interest being shown by some business entities for captive consumption of the spectrum, the Government has on 10th August,2022 undertaken to examine the demand for the same. Captive Non-Public Network (CNPN), or in other words, in-house network, in layman terms will help those entities who wish to avail of the same, to have easier and faster in- house capability, thus boosting its efficiency while providing a dedicated platform, different from the one provided to telecom operators. Different as a result of one customer or subscriber who will avail the same directly from the Department of Telecommunications.

Litigatin on 5G- A litigation against the rollout of the 5G spectrum was initiated before the Delhi High Court on the possible environmental hazards , which came to be dismissed.

At present, there is possibly no other litigation pending or initiated as regards the 5G spectrum rollout, maybe due to the freshness or infancy of the same. If there is any future litigation as regards the same, it would in all probablity be in the realm of awarding of spectrum as a larger issue. Another aspect of any probable litigation would be as regards awarding of Captive Non Public Network (CNPN) or captive usage, but that is likely to be litigation almost like the one that we see in the realm of contracts.

The way forward: As mentioned midway in this article, there is no specific law dealing with spectrum technology and the same is governed by the various enactments mentioned above. The pressing requirement is possibly to have a single law dealing with this area, instead of the bouquet of laws holding the field, which will pave the way for smoothening of the sector and help both the Government and parties in the sector to have a level playing field and do away with the uncertainties associated with various laws governing the field which could result into chaos as compared to a single special legislation which would look at existing and future requirements. A specific law is indeed the need of the hour.

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AN ANALYSIS OF UNIFORM CIVIL CODE

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UNIFORM CIVIL CODE

Uniform civil code in general words means “One Nation, One Law”

Uniform civil code: The word is comprised of two words “uniform” and “civil code”

UNIFORM MEANS EQUALLY APPLICABLE ON EVERYONE

Civil code means collection of laws governing personal relationships between people. Few examples of civil code are contracts, property and marriage related laws.

The debate for uniform civil code started back in 1835 with the report of second law commission. During this time Britishers felt the need to unify various personal laws.

The concept of uniform civil code is embodied under article 44 of the Indian constitution in chapter IV (DPSP). The article states that: Uniform civil code for the citizens: The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.

The words incorporated in article 44 imply that the state shall make great effort to implement Uniform civil code throughout the country.

Although directive principles of state policy are not enforceable in a court of Law, it obligates the state to apply the principles in implementation of laws.

The implementation of Uniform civil code was included by the Bhartiya Janta party in its manifesto during 2019 Lok Sabha election. Removal of Article 370 from constitution of India is the major step towards this agenda. India is a diverse country with various religions and various personal laws governing these religions with implementation of UCC all the religions will be governed by one uniform civil code which will reduce the dominance of personal laws over society.

UNIFORM CIVIL CODE AND PERSONAL LAWS

Implementation of UCC has been a matter of dispute from long time because in country like India religious domination plays a crucial role and majority would prefer their dominance over others religions with its personal religious laws. The idea to integrate people of different religions under one civil law can only be possible if it’s for common good rather than for preservation of custom.

Custom as a source of law gives more importance to personal religious laws rather than one uniform law and if custom will be the focus behind this one unified civil law it will dominate one majority religion over minorities. The centre of attraction behind the uniform law should be Justice rather than antediluvian antifeminist customs.

It was contended during the debates of the constituent assembly that uniform civil code infringes the right to religion guaranteed under part III of the constitution of India.

In the case of John Vallamattom v. Union of India(MANU/SC/2003) it was held that directive principles incorporated under Article 44 do not infringe article 25 (freedom of religion) in any way. In addition to this clause (2) of article 25 saves secular activities associated with religious practices from the right available under clause (1) that empowers the state to regulate or restrict them.

Judicial pronouncements and article 25

The necessity of implementation of Unified Civil Code has been often recommended by Supreme Court. In the case of Nikhil soni v. Union of India the court stated unambiguously that trough a practice can be religious in nature but if may not constitute vital component of that religion.

UCC: THE DEBATE OF CONSTITUENT ASSEMBLY

The speech was given against the motion by several Muslim leaders when it was enacted. It was claimed that it violates fundamental right of religion. Dr. B.R Ambedkar even mentioned, “We have a uniform and COMPLETE CRIMINAL CODE OPERATING THROUGHOUT THE COUNTRY. Which is contained in the penal code and the criminal procedure code. this country also has a civil code which is uniform in its content and applicable throughout the country. The only division in which civil law has not invaded is marriage and succession. It is this little corner which we have not been able to invade so far.

UNIFORM CIVIL CODE IN GOA

Uniform civil code is contained under part IV of the Indian Constitution therefore not enforceable but Goa is the only state which has implemented Uniform civil code in its territory.

The Apex court in Jose Paulo coutinho v. Maria Luiza Valentina Pareira stated that the Uniform civil code of Goa is an ideal for applicability of uniform laws on different religions. However the personal laws in Goa are not uniform in all aspects.

Uniform civil code & elimination of gender biasness

The concept of Uniform civil code is highly associated with elimination of gender bias; every personal law is strongly prejudiced against women in some way or the other. The personal laws are highly patriarchal and male dominant in nature. No personal law is ideally suited to become a model for UCC.

Personal laws are mainly derived their authority and source from customs, but the combined effort of legislature and judiciary have played a major role towards achievement of UCC through legislations and precedents.

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Electricity connection cannot be denied only because dispute regarding ownership of land is pending: Gujarat High Court

The bench of Justice Supehia noted that the Petitioners were owners of the concerned agricultural land for which electricity was sought. However, it was observed that the electricity was denied on the ground that the Petitioners were illegally occupying Government land.

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The Gujarat High Court in the case Yogesh Lakhmanbhai Chovatiya v/s PGVCL Through the Deputy Manager observed and has clarified that occupiers of a land cannot be denied electricity connection only because a dispute regarding ownership of the land is pending.

The bench comprising of Justice AS Supehia observed and referred to a division bench judgment stating that right and title and ownership or right of occupancy has no nexus with grant of electrical connection to a consumer.

In the present case, the petitioner current occupiers of the land and submitted that they were denied an electricity connection only because the land that they were occupying was in the name of the Government. However, the proceedings were initiated by the Mamlatdar against them u/s 61 of the Gujarat Land Revenue Code for removal of encroachment. Further, to bolster their contention, it was relied by the petitioner on an order of the High Court and Sec 43 of the Electricity Act, 2003 which mandates the supply of electricity to any occupier or owner of premises.

The Petitioners could be said to be ‘occupier’ of the land in question and the connection could not be denied by the Respondent.

The bench of Justice Supehia noted that the Petitioners were owners of the concerned agricultural land for which electricity was sought. However, it was observed that the electricity was denied on the ground that the Petitioners were illegally occupying Government land.

Further, the bench of Justice Supehia concluded while perusing Sec 43 that the provision stipulated that the licensee shall supply electricity to those premises where the application had been filed by the owner or the occupier. Consequently, a reference was made to the order of the Division Bench of the High Court in LPA No. 91/2010 wherein it was observed:

The Court stated that such power being not vested under the law with the company and as the company cannot decide the disputed question of right and title and this court is of the view that ownership or right of occupancy has no nexus with grant of electrical connection to a consumer.

While keeping in view of the aforesaid provisions, it was directed by Justice Supehia that the Respondent-Company to supply electricity connection to the Petitioners in the premises of the property at the earliest in accordance with the list maintained by the name containing the names of the Petitioners in the list.

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ANALYSIANG SECTION 194R OF THE INCOME TAX ACT

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Recently, Section 194 R was inserted by the Finance Act 2022, which came into effect on July 1st, 2022. CBDT made certain recommendations via Circular 12 from the day of the addition of this section, it has become highly debatable. Before touching the issues of this section, we need to understand the legal provision of section 194 R.

In simple terms, the new section mandates a person who is responsible for providing any benefit or perquisite to a resident to deduct tax at source at 10% of the value or aggregate value of such benefit or perquisite before providing such benefit or perquisite. The benefit or perquisite may or may not be convertible into money, but it must result from such resident’s business or professional activities. As per this section, tax will be deducted by business or profession on any benefits or perquisites of a person who is residing in India. The benefit or perquisite can be in the form of cash or kind, or partially in cash and partially in kind. Tax deduction will be 10 percent if the aggregate value doesn’t exceed INR 20,000. In such a case, tax will not be deducted. Such conditions will not be applicable in If the turnover of business doesn’t exceed INR One Crore, If the turnover of the profession doesn’t exceed INR fifty lakhs, For instance, if a person is a sales agent and he exceeds the target allotted by the company and receives a new car worth INR 5, 00,000/-the value of INR 5,00,000 will be taxed under the head of Profit.

The intention of this section is to expand the scope of deducting tax on benefits or perquisites and to increase transparency in the reporting of benefits and perquisites received by an individual. Because this particular incentive is in kind rather than cash, recipients of such kinds of transactions do not include it in their income tax return. As a result, inaccurate income information is provided. Such an incentive or bonus in kind ought to ideally be reported as income under the 1961 Income-tax Act (ITA). Also, according to Section 28(iv) of the ITA, any benefit or perk received from a business or profession, whether convertible into money or not, must be reported as business income in the hands of the receiver. Now Section 194(R) gives the right to the payee to deduct the amount, whether in cash or kind, arising out of business promotion.

The terms “benefits and perquisites” are not defined under the IT act. If they receive any such perquisites or incentives, whether in cash or in kind, they must deduct TDS. In cases where the benefit is wholly in kind, the person providing such a benefit or perquisite is required to pay TDS on the value of such benefit or perquisite out of his own pocket. In this case, benefits and perquisites are determined as per the value of the purchased price and manufactured price. However, no taxes to be deducted u/s 194R on sales discount, cash discount, or rebate are allowed to customers.

In the matter of ACIT Vs Solvay Pharma India Ltd, the court held that free samples provided by the pharmaceutical company for promotion purposes would be taxable income. As such, free samples cannot be treated as a freebie. The complimentary sample of medication serves solely to demonstrate its effectiveness and to win the doctors’ confidence in the high quality of the pharmaceuticals. Again, this cannot be regarded as gifts given to doctors as they are intended to promote the company’s goods. The pharmaceutical corporation, which manufactures and markets pharmaceutical products, can only increase sales and brand recognition by hosting seminars and conferences and educating medical professionals about recent advances in therapeutics and other medical fields. Since there are daily advancements in the fields of medicine and therapy taking place throughout the globe, it is crucial for doctors to stay current in order to give accurate patient diagnosis and treatment. The main goal of these conferences and seminars is to keep doctors up to date on the most recent advancements in medicine, which is advantageous for both the pharmaceutical industry and the doctors treating patients. Free medication samples provided to doctors by pharmaceutical corporations cannot be considered freebies in light of the aforementioned value.

Hence, under such circumstances, for such a sales effort, the pharmaceutical company may deduct its expenses. The promotion would, however, be taxable income in the hands of the receiver, and the pharmaceutical company would need to deduct TDS on it.

Another question that pops up is that in the case of gifts and perks received on special occasions like birthdays, marriages, and festivals, under such circumstances, Section 194R will only be applied if they arise out of business or profession.

As we know, we are heading towards digitalisation. There are many social media influencers who are playing a crucial role in marketing strategy. Income received by an influencer is calculated by deducting expenditure incurred on their business. Filming costs, such as cameras, microphones, and other equipment; subscription and software licencing fees; internet and communication costs; home office costs, such as rent and utilities; office supplies; business costs, such as travel or transportation costs; and others are examples of what can be written off as a social media influencer. To illustrate how Section 194 R will be applicable in such a situation, let’s consider Nandini is a social media influencer. She received an offer from a company for product promotion in another city. She charged her fee of Rs 88,000 and the travel expense incurred by her was Rs 25,000. Here, the company will reimburse her travel expenses. So, the travel expenditure incurred by the company is covered under the benefits and perquisites provided to Nandini. Hence, TDS is to be deducted under section 194R at the rate of 10%, i.e., Rs 2500 is deductible from the fees payable to Nandini.

There is no further requirement to check whether the amount is taxable in the hands of the recipient or under which section it is taxable. The Supreme Court took the same view in the case of PILCOM vs. CIT in reference to the deduction of tax under Section 194E. It was held by the Hon’ble Supreme Court that tax is to be deducted under section 194E at a specific rate indicated therein, and there is no need to see the taxability under DTAA or the rate of taxability in the hands of the non-resident.

In the matter of ACIT Vs Solvay Pharma India Ltd, the court held that free samples provided by the pharmaceutical company for promotion purposes would be taxable income. As such, free samples cannot be treated as a freebie. The complimentary sample of medication serves solely to demonstrate its effectiveness and to win the doctors’ confidence in the high quality of the pharmaceuticals. Again, this cannot be regarded as gifts given to doctors as they are intended to promote the company’s goods. The pharmaceutical corporation, which manufactures and markets pharmaceutical products, can only increase sales and brand recognition by hosting seminars and conferences and educating medical professionals about recent advances in therapeutics and other medical fields. Since there are daily advancements in the fields of medicine and therapy taking place throughout the globe, it is crucial for doctors to stay current in order to give accurate patient diagnosis and treatment.

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