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In a remarkable, refreshing, rational and robust judgment titled V Bharath Kumar vs The State of Telangana in Criminal Petition No. 8108 of 2021 delivered as recently as on November 15, 2021, the Telangana High Court has granted liberty to an accused to initiate proceedings against police officials if the procedure for arrest under Section 41A CrPC is violated. The Court reminded that the police are duty bound to follow the guidelines laid down by the Supreme Court in the ‘Arnesh Kumar’ case for arrest. It must be mentioned here that a single-Judge Bench of Hon’ble Smt Justice Lalita Kanneganti was hearing the anticipatory bail application filed by the head of an education/job consultancy firm in Secunderabad, primarily accused of cheating under Section 420 IPC.

To start with, this brief, brilliant, bold and balanced judgment authored by a single Judge Bench of Hon’ble Smt Justice Lalitha Kanneganti sets the ball rolling by first and foremost putting forth in para 1 that, “This Criminal Petition under Section 438 Cr.P.C. is filed by the petitioner / accused seeking anticipatory bail in Crime No. 233 of 2021 of SHO, Tukaramgate Police Station, registered 1or the offences punishable under Sections 406, 420, 504 and 506 IPC.”

While elaborating on the prosecution’s allegations, the Bench then states in para 3 that, “The allegations of the prosecution, in briet, are as under: On 18. 10.2021 at 15.30 hours, the police received complaint from one Sri B. Kashi Ram stating that one person by name V. Bharath Kumar, Director of Eagle Immigrations and Eegle Expert Immigrations Private Limited, East Maredpally, promised that he would provide job abroad to the complainant and asked to pay Rs. 10,00,000/-. Between 08.03.2021 and 04.04.2021, the complainant paid Rs.8,00,000/- through cheque and Rs.2,00,000/- by way of cash. On 05.05.2021, even after repeated requests, he was not provided with job. Further, when petitioner is making efforts to leave the country, present report is lodged. Basing on the same, the subject crime is registered.”

As we see, the Bench then points out in para 4 that, “Learned counsel for the petitioner Sri Karam Chendu Komireddy submits that though the punishment prescribed for the aforesaid offences is below seven years and the police, having issued notice under Section 41-A Cr.P.C., still are not following procedure contemplated under the said section and threatening the petitioner to enter into compromise with the complainant.”

While continuing in the same vein, the Bench then brings out in para 5 that, “In fact, challenging the high-handed action of the respondent police, the petitioner filed W.P. No. 27774 of 2021 and this Hon’ble Court was pleased to pass interim order dated 08.11.2021, which reads as under:

“Main grievance of petitioner is that police are not following procedure contemplated under Section 41-A Cr.P.C. and guidelines issued by the Supreme Court in Arnesh Kumar v. State of Bihar (AIR 2014 SC 2756). Petitioner is sole accused in FIR No. 233 of 2021, P.S. Tukaramgate registered for the offences under Sections 406, 420, 504 and 506 IPC.

Learned counsel for the petitioner submits that all the offences are bailable with less than seven years imprisonment and mandatory procedure under Section 41-A Cr.P.C. is required to be followed.

Notice before admission.

Personal notice is permitted to Respondent No.5.

Learned Assistant Government Pleader for Home to get instructions by the next date of hearing.

Post on 15.11.2021.

In case petitioner is required for the purpose of investigation, Respondent No.4 – Station House Officer, Tukaramgate Police Station is directed to follow procedure under Section 41-A Cr.P.C. and guidelines issued by the Supreme Court in Arnesh Kumar’s case.””

Furthermore, the Bench then also discloses in para 6 that, “Learned counsel for the petitioner submits that in spite of the above order passed by this Court, the respondent – police are pressurizing the petitioner to enter into compromise with the complainant and threatening to arrest him.”

Needless to say, the Bench then clearly states in para 7 that, “When the punishment for the aforesaid offences is below seven years, the respondent – police are bound to follow the procedure contemplated under Section 41-A Cr.P.C. and als0 the guidelines issued by the Hon’ble Apex Court in Arnesh Kumar v. State of Bihar, Further, the Hon’ble Apex Court has also provided remedies to the aggrieved party, if the provisions under Section 41-A Cr. P.C. are not followed by the police officers as well as the judicial officers.”

Of course, the Bench then clearly specifies in para 8 that, “If the petitioner is aggrieved by the action of the police in not following the procedure contemplated under Section 41-A Cr.P.C. and resorting to other means and measures by threatening him to compromise the matter, petitioner is at liberty to initiate appropriate proceedings against the officers concerned. It is further directed that having issued notice under Section 41-A Cr.P.C., the police are bound to follow the procedure and the guidelines issued by the Hon’ble Apex Court.”

Simply put, the Bench then also clearly, cogently and convincingly holds in para 9 that, “Hence, police are directed to adhere to the procedure Contemplated under Section 41-A Cr.P.C. and also the guidelines issued by the Apex Court in Arnesh Kumar’s case (supra) scrupulously. Any deviation in this regard will be viewed seriously. After passing this order, learned counsel for the petitioner requested for a copy thereof on the same day, else police may take coercive steps against the petitioner.”

While underscoring the importance of technology in imparting justice, the Bench then observes in para 10 that, “The bail petitions are heard by the Court as expeditiously as possible and orders are also passed immediately. The difficulty and the delay, however, is in dispatching the certified copies of the orders. Once the signed orders leave the Chambers of the Judge and by the time the advocate/client receives the certified copy it has to pass through several phases of Scrutiny and approval. In some cases, it may take days together This for dispatching the order due to invariable reasons. procedure of dispatching the order copies has been followed by the Courts from a very long time. Justice Krishna lyer once said that ‘our judicial system is 200 years behind when compared to developed countries’. In this advanced age of technology, we should make use of technology in improving the administration of justice. It will enhance the efficiency and we will be able to achieve the goal of giving timely justice to the needy.”

Quite significantly, the Bench then holds in para 11 that, “Protection of personal liberty of an individual is, undeniably, a constitutional duty of this Court. Our criminal justice system always gives paramount consideration to the protection of the rights of the accused. Article 21 of the Constitution of India mandates that the personal liberty of an accused can be curtailed only after strict compliance with the procedure established by law. Sections 438 and 439 Cr.P.C. ensure that the accused is not deprived of his personal liberty arbitrarily. The Hon’ble Apex Court in catena of cases held that ‘speedy adjudication process is one of the main facets that constitute the essence of access to justice and without it, access to Justice as a constitutional value will be a mere illusion’. Denial of this right undermines public confidence in the justice-delivery system. It is also a settled law that the right of an accused to have his bail application heard by the Court within a reasonable time has been entrenched as a constitutional liberty. At the same time, disposal of bail application without furnishing the order copy within a reasonable time will not place the accused in a better position. Mere emphasizing that an accused has an indefeasible fundamental right to bail itself is not sufficient without furnishing the copy of the order.”

Truth be told, the Bench then also rightly added in para 12 that, “This is high time, the Courts shall address these issues with a progressive approach by adopting the innovative methods.”

Adding more to it, the Bench then also hastened to add in para 13 that, “The Hon’ble Apex Court has expressed the concern that serious deficiency in the criminal judicial system is the delay in communication of orders, which we need to address on war footing, because it touches upon the human liberty of under-trials convicts. The Hon’ble Apex Court also introduced a mechanism for speedy communication of bail orders to prisons under an electronic transmission channel known as FASTER (Fast and Secured Transmission of Electronic Records).”

What’s more, the Bench then holds in para 14 that, “Hence, this Court feels that an alternative mechanism shall be evolved to address the plight of these under-trial prisoners / accused.

(a) Parties Advocates shall download the order copy from the High Court’s Website along with case details which are available in the case status information.

(b) While filing the memo on behalf of accused for furnishing sureties, the Advocate shall state in the Memo that he / she has downloaded the order copy from the High Court’s Website. The Administrative Officer Chief Ministerial Officer of the Court concerned shall verify the order from the High Court’s Website and make an endorsement to that effect and then shall place the same before the Court.

(c) The Public Prosecutor shall also obtain necessary instructions in this regard and assist the Court.

(d) The Presiding Officer, on the same day, shall dispose of the same and dispatch the release order to the jail authorities concerned forthwith through e-mail or any other electronic mode.

(e) In cases of anticipatory bail, the burden to verify the authenticity of the copy is on the Station House Officer concerned and if necessary, he should obtain necessary instructions from the Public Prosecutor’s Office and complete the process on the same day expeditiously as per law.

(f) The jail authorities on receipt of the release order shall release the accused forthwith.

(g) Registrar (Judicial) shall communicate copy of this order to

(1) The Principal Secretary for Home Affairs, State of Telangana, (2) The Director General of Police, State of Telangana, (3) The Director of Prosecution, who, in turn, shall sensitize the police officers Station House Officers / Public Prosecutors and ensure implementation of this order.

(h) Registrar (Judicial) shall communicate copy of this order to all the Principal District Judges in the State, who, in turn, shall sensitize all the Presiding Officers and ensure implementation of this order.

(i) Registrar (Judicial) is further directed to circulate the copy of this order to all the Bar Associations in the State through the Principal District Judges, so that they can effectively address their client’s cause.

(j) Registrar (Judicial) shall also issue a separate notification in this regard and the same shall be displayed in the High Court’s Website.

(k) These directions will apply to all bail application including bails in Criminal Revision as well as Criminal Appeals.

This order shall come into force from 22.11.2021.”

It is worth noting that the Bench then directs in para 15 that, “The Judicial Officers in the State shall bring to the notice of the Registrar (Judicial) the difficulties/ hitches, if any in implementing the directions of this Court. In case of anticipatory bails, the police officials shall bring to the notice of the Public Prosecutor, High Court about their difficulties in implementing the orders of this Court and the Registrar (Judicial) and learned Public Prosecutor shall place the same before this Court by the next date of hearing ie. 22.12.2021.”

Finally, the Bench then holds in para 17 that, “Inspite of all odds, determined efforts are required for achieving the goal. Ways and means have to be found out by constant thinking and monitoring. It is the responsibility of all the stakeholders to uphold the public confidence in the justice delivery system by giving timely justice which includes furnishing the copies of orders/judgments.”

In conclusion, we thus see how the Telangana High Court in this case has dispensed with the requirement of certified copies of bail orders and held that e-copies will be accepted from 22nd November, 2021. The Court also made it clear that the indefeasible right of an accused to bail, guaranteed by the Constitution, is not sufficient in itself as long as the bail orders cannot be furnished in a timely manner. The single-Judge Bench of Hon’ble Smt Justice Lalita Kanneganti also made it clear that police officials would have to face action if the arrest procedure under Section 41A CrPC and ‘Arnesh Kumar’ guidelines are violated. This will certainly help in ensuring that no one is arrested arbitrarily and the accused who gets bail would be released promptly on getting e-copies of bail order which is a very good step in ensuring that justice is delivered in time and even the accused is not made to wait for a long time once he gets the bail just because the bail order is not delivered in time!

The Telangana High Court has granted liberty to an accused to initiate proceedings against police officials if the procedure for arrest under Section 41A CrPC is violated.

Sanjeev Sirohi, Advocate

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Legally Speaking

Verbal cruelty in marriage

Pinky Anand



Marriage is a union of two people. It is oft repeated and probably one of the most recognized advice about marriage that we receive. It is probably only topped by the statement ‘Marriage is a compromise’. Its strange to me, that what is considered a divine union of two people is also considered a compromise, but facts rarely lie. It is true that I have seen maybe a little bit more than my fair share of divorces and pushed some along the way, and maybe that is why probably I can say that I might be in a slightly better position to extrapolate on marriage and its various facets.

At the base of it, marriage is two individuals and very often their families trying to create a cohesive unit. The problem comes, as it does in almost all other human interactions, when people are not compatible. We bring two individuals, sometimes from various different backgrounds and a different value system into a bond where they are expected to not just like each other, but societally expected to love each other till death do them part. Very often it works, marriages are without doubt the foundation of our society, the basic unit on which our cultures function and they are essentially the same in all cultures, mostly monogamous and come with societal expectation of a family.

But what about when it does not work. It is almost impossible for every couple to get along with each other, especially when very often the couple themselves seem to have little to no say in whom they marry. The individual expectations give way to what your family thinks is the best match, or even if you choose your partners yourself, young couples are sometimes woefully ill informed of what a marriage actually is beyond the honeymoon phase.

Today marriage is under a scanner, much deeper than it has probably ever been. In my humble opinion we are now at a stage where we are trying to box conversations and categorise them into ‘cruelty’ or ‘not cruelty’. The latest judgment isolated reporting of the Kerala High Court stating that ‘comparing wife to other women is mental cruelty’ gives credence to my statement. A bare reading of the judgment will ensure that the reader knows that the question before the court was not simply the fact that the husband was comparing his wife to other women.


Cruelty is an extremely subjective term, which on one hand is clear as day, specially when there is incidence of physical abuse, or mental cruelty in the form of abusive language or coercive control of women, on the other end it is hazy. Cruelty can be anything perceived as being cruel. Essentially it would depend on the dynamics of the couple themselves, over what they are willing to adjust to, or compromise with. I have seen women, who although do not like that their husbands compare them with other woman, do not really consider this as a dealbreaker. It is probably for this reason itself that the legislature in its wisdom has refused to quantify and define what cruelty is. It has left it to the wisdom of the courts to decide on a case to case basis of what might constitute mental cruelty. As has been done by the Kerala High Court, where the lady in question had been married for 13 long years but had stayed in the matrimonial relationship only for 1 month. When we read this judgment we realise that rather than just interpret this one statement of the husband, the Court was looking into an entire relationship that started in 2009, it looked at various allegations including non consumation of the marriage.

The first interpretation for cruelty and what might constitute cruelty was given by the Supreme Court in Sobha Rani vs Madhukar Reddi (1998) 1 SCC 105 where the Supreme Court while dealing with cruelty under Section 13(1)(i-a) of the Hindu Marriage Act opined that although the provision does not define cruelty, cruelty may mean physical or mental cruelty. In Samar Ghosh Vs Jaya Ghosh (2007) 4 SCC 511 it was further extrapolated that cruelty cannot contain within its ambit differences between the couple because those arise in day to day matrimonial life.

As society and its dynamics have changed, so have the Courts’interpretation of cruelty. What initially was considered to only be physical cruelty has now morphed into an interpretation where divorce on the grounds of cruelty may be given on the basis of mental cruelty. In these cases, the Courts will consider the entire background of the marriage and its various facets and try to understand how the action alleged to be cruel has affected one of the spouses. Instances which have been identified as cruelty range from adultery to calling the spouse fat, asking the spouse to live separate from his old aged parents, public embarrassment and humiliation amongst others.

The need for the Courts to enter such private conversations comes from the fact that India believes in the ‘fault’ theory for divorces, which essentially means that to get a divorce one party has to be at fault in the marriage. It is only under these specific ‘faults’ as enumerated under the Acts that divorces can be granted except when petitioning for divorce by mutual consent. The problem with fault theory is that it takes away from the fact that the breakdown of a marriage is not necessarily due to a fault. It refuses to recognize the idea of ‘irretrievable breakdown’. What happens in these matters is that very often the Courts in their equity and justice try to grant the parties divorce, couching specific acts as ‘cruelty’, and while appropriate for those specific and particular cases, they are not suitable as precedent. Since the High Courts and the Supreme Court judgments become binding on lower courts, this creates a difficulty in interpreting the law or an action as ‘cruelty’ when sometimes it is just a disagreement between couples. This is further exacerbated by the media reporting only the ‘juicy’ bits of the judgment as has been done in the case of the Kerala High Court judgment.

As our society advances, and our laws are interpreted dynamically, I believe we as individuals and as a society should admit that sometimes marriage do not work, not due to faults, but simply because the individuals needs and choices are different from their spouses. It is time for us to understand and recognize that marriages are not made in heaven, they are made on earth amongst humans and sometimes they break down.

The author has served as the Additional Solicitor General of India.

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Legally Speaking


The bench comprising of Justice Jyotsna Rewal Dua observed while deciding the appeal preferred by an insurance company against award of Rs 15,85,000 compensation to the bereaved mother by the Claims Tribunal.



The Himachal Pradesh High Court in the case United India Insurance Company Ltd v. Smt. Sumna Devi recently observed that merely because the claimants were unable to produce documentary evidence to show the monthly income of the deceased and the same should not justify for adoption of lowest tier of minimum wage while computing the income.

The bench comprising of Justice Jyotsna Rewal Dua observed while deciding the appeal preferred by an insurance company against award of Rs. 15,85,000/- compensation to the bereaved mother by the Claims Tribunal.

It was observed that the Tribunal had assessed deceased’s monthly income as 10,000/- whereas the Appellant argued that in absence of any documentary evidence to show the deceased’s income and as per the minimum wage rate, i.e., Rs. 7,000- per month, the award must be calculated.

Further, the deceased’s mother informed the Court that her son was earning Rs. 10,000/- per month only from agricultural pursuits. It was submitted by her that he had completed two-year NCVT course in Mechanic (Motor Vehicle) Trade and would have definitely earned much more than Rs. 10,000/- per month, had he lived.

It was noted by the court that where the deceased had an NCVT CTS course diploma in Mechanic (Motor Vehicle) Trade from a Government Industrial Training Institute and was also carrying out agricultural works, Rs. 10,000/- per month has been correctly assessed as his income which he would have earned on attaining the age of 25 years.

The court placed reliance on Chandra alias Chanda alias Chandra Ram & Anr. vs. Mukesh Kumar Yadav & Ors., wherein it was held that in absence of salary certificate the minimum wage notification can be a yardstick but at the same time cannot be an absolute one for fixing the income of the deceased. Thus, in absence of documentary evidence on record some amount of guesswork is required to be done. But at the same time the guesswork for assessing the deceased income should not be totally detached from reality.

Accordingly, the court dismissed the petition.

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Legally Speaking




The Gujarat High Court in the case Rameshbhai Bhathibhai Pagi v/s Deputy Executive Engineer observed and has reiterated that once a Labour Court comes to the conclusion that Sections 25F, G and H of the Industrial Disputes Act have been violated and reinstatement of workman ought to follow.

The bench comprising of Justice Biren Vaishnav observed while hearing several petitions challenging the Labour Court’s order wherein compensation of Rs. 72,000 was awarded to each of the workmen-Petitioner rather than reinstatement with back wages.

It was submitted by the petitioner that their services were put to an end in August 2010 without following the procedure and without awarding compensation. It was pleaded by them that there was a clear violation of Sections 25(G) and (H).

However, the court stated that the Labour Courts had found the termination bad for each of the petitioners. While drawing an adverse inference against the Respondents, it has been awarded by the Labour Court the compensation which was meagre in the eyes of the petitioner, even as work was available. The Court observed that the Reliance was placed on Kalamuddin M. Ansari vs. Government of India, wherein similar facts and circumstances, the High Court ordered reinstatement of employees with continuity of service and had set aside the order of compensation.

The decision of the Labour Court was supported by the AGPs on the ground that there was a delay in raising the dispute. Further, the work had been outsourced at the canal. Therefore, the reinstatement was not possible.

The bench of Justice Vaishnav noted that the Labour Court had clearly concluded that there was a violation of sections 25(F), (G) and (H) of the ID Act. The only question raised was weather the Labour Court should have fallen short of awarding reinstatement with or without backwages.

In the present case, reference was made to Gauri Shanker vs. State of Rajasthan, wherein order of Labour Court had been modified by the Supreme Court of granting compensation in lieu of reinstatement. Further, Justice Vaishnav recalled the following observations of the Top Court:

The Division bench and the learned Single Judge under their supervisory jurisdiction should not have modified the award by awarding compensation in lieu of reinstatement which is contrary to the well settled principles of law laid down by this Court, in catena of cases.

Keeping in view the fact and the precedents that compensation would be detrimental to the Petitioners who had worked for more than 20 years. The order of the Labour Court was modified by the High Court of granting lump-sum compensation and ordered the employer to reinstate the workmen in service with continuity of service.

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Legally Speaking




On Sunday, the Central Government notified the appointment of 11 advocates as Additional Judges of the Punjab and Haryana High Court.

The Advocates appointed as additional judge of Punjab and Haryana High Court are namely:

1. Nidhi Gupta,

2. Sanjay Vashisth,

3. Tribhuvan Dahiya,

4. Namit Kumar,

5. Harkesh Manuja,

6. Aman Chaudhary,

7. Naresh Singh,

8. Harsh Bunger,

9. Jagmohan Bansal,

10. Shri Deepak Manchanda,

11. Alok Jain

The present appointment will take the actual strength of the High Court to 57 judges against a sanctioned strength of 85.

The judges have been appointed for a period of two years with effect from the date they assume charge of their respective offices, an official notification read.

In its meeting held on July 25, 2022, the Supreme Court Collegium headed by Chief Justice of India NV Ramana had recommended the names of these 11 advocates for elevation as Additional Judges of the Punjab and Haryana High Court.

In 2021, the appointment tally in High Courts was 120 in addition to 9 appointments in the Supreme Court. However, the entire appointment process in higher judiciary has been put on a fast track.

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Legally Speaking




The Kerala High Court in the case Dr K P Hamsakoya vs Union Territory of Lakshadweep observed and granted an anticipatory bail to a senior doctor who has been accused of posting on facebook defamatory articles against officers of the Administration of Lakshadweep.

The bench comprising of Justice Viju Abraham observed and was essentially dealing with the pre-arrest bail plea of Dr. K P Hamsakoya, who is one of the senior-most doctors serving the Lakshadweep Administration and that presently, he is under suspension.

The Court observed that Dr. Hamsakoya has been accused of posting defamatory articles on Facebook against officers of the Administration of Lakshadweep, thus causing a negative effect amongst the public against the Administration. He has been booked under Sections 505 (1) (b), 505 (2) and 500 of the IPC and Section 66 (A) (b) of the Information Technology Act.

Before the Court, the Counsels Ajit G Anjarlekar, G.P.Shinod, Govind Padmanaabhan, and Atul Mathews appearing argued that he has been falsely implicated in the case and has been booked under the offence punishable under Section 66 (A) (b) of the IT Act (a provision which has been struck down in its entirety by the Apex Court).

It was contended by the court that the offences under Section 500 IPC cannot be registered without a complaint being filed by a person who has been defamed.

The Court while considering the facts and circumstances of the case and the nature of the allegations, the pre-arrest bail was granted by the court to the petitioner and the court dismissed his plea with the following directions:

On August 29, 2022, the petitioner shall surrender before the investigating officer and shall co-operate with the investigation.

The court stated that in the event of the petitioner, he shall be produced before the jurisdictional Magistrate and shall be released on bail on his executing a bond for Rs.50,000/- with two solvent sureties each for the like sum as per the satisfaction of the jurisdictional Court.

It was stated by the court that if any of the aforesaid conditions are violated, the Investigating Officer of Minicoy Police Station, Union Territory of Lakshadweep has been given the liberty to file an application for cancellation of bail before the jurisdictional court.

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Legally Speaking




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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