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Test identification parade: Its purpose and objective

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At the outset, let me begin by stating most unambiguously that the test identification parade is always conducted immediately after a criminal offence takes place so that the eye witness who does not know the accused identifies him/her and thereby the eyewitness credibility and reliability is also tested openly in this whole process. Also, it serves as a useful tool in enabling the police to draw the right inferences from it and helps it immensely in pursuing the investigation in the concerned case more pointedly and in right direction. It was held in State of UP v Neel Kanth AIR 1967 All 447 by the Allahabad High Court that the purpose of test identification parade is to test the memory and veracity of a witness who claims to identify an accused person as the participant or one of the participants in a crime. It was also held in Satya Narain v State AIR 1953 All 385 by the Allahabad High Court that its purpose is to find out whether the suspect is real offender or not. In Ankush Maruti Shinde v State of Maharashtra (2009) 6 SCC 667, it was held that the object of conducting test identification parade is two-fold. First is to enable the witnesses to satisfy themselves that the prisoner whom they suspect is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence.

Apart from Section 9 of Evidence Act, we didn’t had earlier any specific provision pertaining to test identification parade. But by the amendment made in 2005 in Code of Criminal Procedure, a new Section 54A pertaining to identification was inserted which runs as follows: “Where a person is arrested on a charge of committing an offence and his identification by any other person or persons is considered necessary for the purpose of investigation of such offence, the court, having jurisdiction, may on the request of the officer–in–charge of a police station, direct the person so arrested to subject himself to identification by any person or persons in such manner as the Court may deem fit.’’

It is worth noting that the main purpose of test identification parade was enumerated by Justice Dr Arijit Pasayat in Heera v State of Rajasthan AIR 2007 SC 2425 wherein he observed: “The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code and Evidence Act. It is desirable that a test identification parade should be conducted as soon as after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution.’’

EVIDENTIARY VALUE OF TEST IDENTIFICATION PARADE

It is imperative to mention here that the evidentiary value and usefulness of the test identification parade was explained exhaustively by the Supreme Court in the case of Ramanathan v State of Tamil Nadu AIR 1978 SC 1201 at pp. 1211 – 12 wherein it was held that, “Identification parades have been in common use for a very long time for the object of placing suspect in a line-up with other persons for identification. The purpose is to find out whether he is the perpetrator of the crime. This is all the more necessary where the name of the offender is not mentioned by those who claim to be eye – witnesses of the incident, but they claim that although they did not know him earlier, they could recall his features in sufficient details and would also be able to identify him if and when they happen to see him again. Such identification is in the interest of both, the accused and the investigating agency. It enables the investigating officer to ascertain whether the witnesses had really seen the perpetrator of the crime and test their capacity to identify him and thereby to fill the gap in the investigation regarding the identity of the culprit. The line – up of the accused in a test identification parade is therefore a workable way of testing the memory and veracity of the witnesses and has worked well in actual practice.’’ In Ayyub v State AIR 2002 SC 1192, it was held by the Supreme Court that test identification parade as such is not a substantive piece of evidence. It is done only for the satisfaction of the prosecution that the investigation was moving in the right direction.

Having said this, I must also point out here that while examining the evidentiary value of the test identification parade pertaining to the facts of the case, the learned Judge Justice Singhal while delivering the judgment said that, “In the present case where there was satisfactory evidence to prove that at least two of the witnesses emphatically claimed that they had noticed the culprit and had in fact described him and claimed that they could identify him, the holding of a test identification parade was absolutely necessary. The fact that such parade was held within two days of the arrest and was supervised by a Judicial Magistrate with all the necessary precautions and arrangements, leaves no room for doubt that the evidence was of considerable importance.’’

Be it noted, in Ram Babu v State of UP, AIR 2010 SC 2143, it was held by the Apex Court that the purpose of test identification parade is to test and strengthen trustworthiness of the evidence of the witness in the court. The evidence generated by a test identification parade is used for corroboration. In Md Kalam v State of Rajasthan AIR 2008 SC 1813, it was held by the Supreme Court that test identification parade strengthens trustworthiness of identification in the court. It was also held that holding of such parade is not obligatory and accused cannot insist upon it. Further, delay in holding it is not fatal, but it should be held quickly to eliminate possibility of accused being shown to witnesses.

WHEN TEST IDENTIFICATION PARADE IS VALUELESS

I must also mention here quite clearly that the Supreme Court through many of its rulings has also categorically specified the situations under which test identification parade carries no value and is not worthy of being relied upon. As for instance, the Apex Court in State (Delhi Administration) v VC Shukla AIR 1980 SC 1382 at p. 1396 stated that the identification of the accused by the witness for the first time in the court without being tested by a prior test identification parade was valueless. In Hare Kishan Singh v State of Bihar, AIR 1988 SC 863 it was held by the Supreme Court that where one of the witnesses failed to identify the accused at the identification parade, identification by him of the accused in the court was useless. Also, in Hari Nath v State of UP, AIR 1988 SC 345 it was held by the Apex Court that holding a test identification parade after four months diluted its evidentiary value. Similarly in Soni v State of UP, (1982) 3 SCC 368, it was held by the Supreme Court that identification after 42 days cannot be relied upon to sustain conviction. But in Brij Mohan v State of Rajasthan, AIR 1994 SC 739 where test identification parade was held within 24 hours of arrest, held by the Apex Court to be good evidence, though the accused alleged that he was shown to the witnesses.

As we see, in yet another case Somappa Vamanappa Madar v State of Mysore, (1980) 1 SCC 479, 485, the Supreme Court pointed out that the witnesses ought to be questioned as to whether the accused had not been shown to them and in the absence of such questioning by the Magistrate or the accused, the evidence is not reliable. In Surendra Singh Rautela v State of Bihar, AIR 2002 SC 260, the eye-witness stated in his FIR that he could not identify the assailant, but at the test identification parade, he identified him. The Supreme Court rejected his evidence and held that such identification was a farce evidence and therefore not reliable. In Ahmed Bin Salam v State of AP AIR 1999 SC 1617, where the accused persons were shown to the witness and he identified them, this was held to be no identification parade. Thus, we can draw the logical inference from this that under no circumstances should the accused be shown to the eye witnesses prior to the test identification parade because if it is so shown , the Court will have no option but to throw away the case by concluding that this is no identification parade.

TEST IDENTIFICATION PARADE WHEN NECESSARY

The Supreme Court explained this in detail in Jadunath Singh v State of UP AIR 1971 SC 363. It was held that, “It seems to us that it has been clearly laid down by this court that the absence of test identification parade in all cases is not fatal and if the accused person is well known by sight it would be waste of time to put him up for identification. Of course, if the prosecution fails to hold an identification parade on the plea that the witnesses already knew the accused well and it transpires in the course of the trial that the witnesses did not know the accused previously, the prosecution would run the risk of losing its case. It seems to us that if there is any doubt in the matter, the prosecution should hold an identification parade.’’ In Mohammad Saleem v State, 1992 Cr LJ 1959 (Delhi) , the Delhi High Court in a case pertaining to rape and kidnapping held that test identification parade was necessary in view of the fact that the accused was not named in the FIR, nor was known to the witness previously and that the prosecutrix remained unconscious for five days after the alleged kidnapping. In Mahabir v State of Delhi AIR 2008 SC 2543, it was held that identification parade must be held at the earliest opportunity. One of the essential condition is that suspect should be unknown to the witness. If an accused is known to a witness, placement of accused for identification is a futile exercise. Test identification parade is necessary to be conducted as early as possible to eliminate the possibility of the accused being shown to the witnesses prior to the identification parade.

It must be mentioned here that in Ravi v State, AIR 2007 SC 1729, the Supreme Court held that in the case of an FIR against unknown persons, the test identification parade should be held as early as possible. A conviction cannot be based on a vague identification. In Chandan v State of Kerala 1986 CrLJ 1865 (Ker), it was held by Kerala High Court that normally, identification test is necessary (i) in case of dacoity, (ii) assembling of persons for the preparation of dacoity, (iii) riot, and (iv) any other offence the participants in which were not known to the witnesses from before. In short, if an accused is not previously known to a witness, the investigating agency has to consider whether a test identification parade should be arranged. When a stranger witness makes identification of an accused in court, the court, by way of caution or prudence seeks some assurance before accepting the identification is correct.

TEST IDENTIFICATION PARADE WHEN NOT NECESSARY

It would be imperative to mention here that in Asha v State of Rajasthan, AIR 1997 SC 2828, test identification parade was not considered necessary by the Apex Court where the FIR was lodged within one hour and the culprits were named therein. In a case of dacoity and murder in State of UP v Sukhpal Singh, AIR 2009 SC 1729, all the witnesses disclosed that they had known the accused persons and they were no strangers to them. They clearly identified them in the moonlight and lantern light. Under such circumstances, the Supreme Court held that holding test identification parade was not necessary. Similarly in Surendra Narayan v State of UP AIR 1998 SC 192, it was held that if the claim of the eyewitnesses that he knew accused from before is found to be true, failure to hold the test identification parade is inconsequential. In Jarnail Singh v State of Punjab, AIR 2010 SC 3699, it was held by the Supreme Court that where the accused identified by witnesses at the time of arrest itself, test identification parade would have been futile exercise.

TEST IDENTIFICATION PARADE IN COURT

Quite pertinently, in case of Suresh Chand Bahri v State of Bihar, AIR 1994 SC 2420, it was held by the Apex Court very clearly that identification of accused by witness in the Court is substantial piece of evidence where accused is not known previously by the witness. It was also held that test identification parade must be held at earliest possible opportunity with necessary safeguard and precaution. However, when accused had been seen by the witness for quite number of times at different points of time and places, it was held that no test identification is necessary. In State of Maharashtra v Sukhdev Singh AIR 1992 SC 2100, it was held by the Apex Court that the identification of the accused by the witness for the first time in the Court when such witnesses were not the strangers to the accused and got only a fleeting glimpse of the accused is not reliable. Similarly the Supreme Court in Sarwan Singh v State of Punjab AIR 2002 SC 3652 advised caution and restraint upon relying on identification parade made for the first time in Court. The Court held that, “It is well-settled that ordinarily identification of the accused for the first time in the Court by the witnesses should not be relied upon for the purpose of convicting the accused without definite corroboration. Since the identification for the first time in the Court cannot possibly be termed to be not admissible but it is a matter of prudence and jurisprudential requirement that the same should be upon proper corroboration, otherwise justice delivery system stands affected’’. In another case Dana Yadav v State of Bihar, AIR 2002 SC 3325, it was held by the Supreme Court that identification for the first time in the Court without any corroborative evidence should not form the basis of conviction unless there are exceptional circumstances to justify it. In this case, the accused was not named in the FIR. His identification in the Court was not accepted by the Supreme Court as a reliable evidence.

In George v State of Kerala AIR 1998 SC 1376, it was held that omission to hold the test identification parade, though not fatal makes the substantive evidence of identification in the Court by the witnesses after the lapse of time a weak piece of evidence which unless sufficiently and satisfactorily corroborated cannot be relied upon. In Raju v State of Maharashtra AIR 1998 SC 275, it was held that when the accused was known to the witnesses from before and no test identification parade was held immediately after his arrest, the identification of the accused by the witnesses for the first time in Court and that too about one year after the incident is not reliable.

However, we cannot gloss over that in RN Patel v State of Gujarat 1999 AIR SCW 4770, it was held by the Apex Court that it could not be held that in the absence of test identification parade, the evidence of eye-witnesses identifying the accused for the first time during trial should become inadmissible or totally useless. Whether the evidence deserves any credence or not would always depend on facts and circumstances of each case. Also, it is imperative to mention here that in Umesh Kant v State of Bihar AIR 2005 SC 726, it was held by the Apex Court that evidence of identification in test identification parade is not substantive evidence but identification in the Court is substantive evidence. In the absence of identification in Court at the time of adducing evidence, the result of test identification parade would be of little value.

It would be in order to mention here that in State of Haryana v Surender, AIR 2007 SC 2312, the injured eye-witness identified the accused in the Court. The test identification parade could not be held because of refusal by the accused to participate. The Supreme Court held that rejection of evidence of the eye-witness in the court without assigning reasons was not proper.

I would also like to invite my readers attention to the notable fact that in State of Haryana v Surender, AIR 2007 SC 2312, it was held that test identification parade has to be held by the police for the conduct of its investigation. It cannot be demanded by the accused. Non-holding of test identification parade does not render identification in Court inadmissible. Identification for the first time in Court cannot form the basis of conviction. It is only a corroborative evidence. In Ram Nath Mahto v State of Bihar, (1996) 8 SCC 630, there was dacoity with murder. The accused was convicted although the witness deposing in the Court did not identify the accused out of fear and was trembling at the stare of the accused whereas the witness had identified him in the test identification parade. The Court relied upon the evidence of the Magistrate who had conducted test identification parade.

TEST IDENTIFICATION PARADE BY POLICE OFFICERS

In Ramkrishan v State of Bombay AIR 1955 SC 104, it was held categorically by the Supreme Court that test identification parade must not be conducted by police officers. Any identifications made by any persons to a police officer in the course of investigations is valueless and the same is inadmissible in evidence. However, in Sheo Raj v State Air 1964 All 290 and Ali Bahadur v State 1998 (1) Crimes 557, it was held that mere presence of police constable is not a ground to reject the evidence of the identification parade.

REFUSAL OF ACCUSED TO SUBMIT FOR TEST IDENTIFICATION PARADE

In Suraj Pal v State of Haryana, (1995) 2 SCC 64, the prosecution was anxiously taking steps to hold the test identification parade but the appellants declined to submit themselves for that purpose. It was held by the Apex Court that it is true that they could not have been compelled to line up for test parade and so if they refused to submit for it they did so at their own risk. The prosecution could not be blamed for not holding the test parade. The reason given out by the appellants for declining to stand the test of identification was that they were shown by the police to the witnesses. This allegation was found to be baseless and unfounded by both the courts below. There was absolutely no basis to say that the appellants or any of them were shown to the witnesses. If the appellants had, in exercise of their own volition, chosen not to stand the test of identification without any reasonable cause, they did so at their own risk for which they could not be heard to say that in the absence of test parade, dock identification was not proper and should not be accepted, if it was otherwise found to be reliable. The logical conclusion that we can draw from this ruling is that the accused should always be prepared to submit himself for test identification parade unless he has strong, bonafide and sustainable reasons for not submitting himself for the same which he must be able to prove also.

DELAY IN HOLDING TEST IDENTIFICATION PARADE WHEN FATAL

It is not in all cases that delay in holding test identification parade is fatal. It is only where there is unaccounted and unreasonable delay that it really affects its credibility. As for instance, in Puttan alias Kamal Prasad v State of Uttar Pradesh, AIR 1992 SC 2032, identification parade held after six months of arrest of accused. No explanation for inordinate delay in holding identification parade.

Held, conviction cannot be based upon it. There is no plausible explanation regarding the inordinate delay in holding the identification parade. In yet another case, Hari Nath v State of UP AIR 1998 SC 345, it was held that if there is unexplained and unreasonable delay in putting the accused for a test identification, the delay by itself detracts from the credibility of test. Also,in Shabad Pulla Reddy v State of AP, 1997 (7) Supreme 602, it was held that if there is unusual and unexplained delay in holding test identification parade, it would be difficult to hold that witnesses have correctly identified the accused. In Raj Kishore v State of Bihar AIR 1971 SC 1058 , it was held that identification parade held long after incident is of a little value. In Subhash v State of UP AIR 1997 SC 1222, it was held that since identification parade was conducted after four months of murder and no description was given by witness in FIR or during investigation, hence accused would be entitled to benefit of doubt. It is thus quite clear after analyzing all such cases that for test identification parade to be reliable, it must be conducted as soon as possible and there should be no unreasonable delay in holding the same. Also, before it is done, witness should not be allowed to see the accused because if the accused is exposed before the eye witness, it will render valueless the test identification parade to be conducted and the whole process will thus be rendered infructuous! This is best illustrated in the case of Mullagirivijram V State of AP, AIR 1993 SC 1243, where it was held that since witness saw the accused the identification is not reliable. Also, in Shaikh Umar Ahmad Shaikh and another v State of Maharashtra, 2000 (1) LW (Cr) 129 (SC), it was held that undoubtedly, the evidence of identification parade is not a substantive evidence, but its utility is for purposes of corroboration. Where there is strong possibility of suspects that accused being shown to eye-witnesses at police station, such identification parade lost its value and could not be relied.

CONCLUSION

All said and done, it merits no reiteration that the test identification parade is basically used to identify the key suspects and it is not a substantive evidence.

It has a lot of evidentiary value if it is carried out strictly as per the norms. We have discussed the different ruling also in this regard where we have seen when it is relevant. It goes without saying that the eye witnesses should not be shown the accused as that only serves to dent the credibility of the concerned eye witnesses.

It must be underscored here that all precautions must also be taken care of by the police in this regard. Only then will the test identification parade really serve its true purpose for which it is conducted!

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Legally Speaking

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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Legally Speaking

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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GUJARAT HIGH COURT: WRIT PETITION FILED AGAINST PRIVATE UNIVERSITY NOT MAINTAINABLE, REMEDY FOR ALLEGED ARBITRARY TERMINATION LIES UNDER CIVIL LAW.

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The Gujarat High Court in the case Shambhavi Kumari v/s Sabarmati University & 3 other(s) observed and has declined to intervene in a writ petition seeking reinstatement with full back wages and benefits filed by an Assistant Professor against a private university, Sabarmati University.

The bench comprising of Justice Bhargav Karia observed and has clarified that the dispute regarding termination was ‘in the realm of a private contract’ and therefore, held that if on the part of the respondent, there is an alleged arbitrary action, the same would give cause to the petitioner to initiate civil action before the Civil Court but in the facts of the present case, the writ petition would not be maintainable against the private educational institution governed by the Gujarat Private Universities Act, 2009.

In the present case, the petitioner was given a three months’ notice starting August 2013, allegedly without any reason. Consequently. Earlier, an application was filled by the petitioner before the Gujarat Affiliated Colleges Service Tribunal and thereafter, withdrew the application to file the writ before the High Court.

It was contested by the respondents that the petition was not maintainable on the ground that the University was a private University and did not fall within the term ‘State’ under Article 12 of the Constitution of India. Therefore, the employment conditions of the Petitioner would not bring her services within the realm of ‘duty or public function.’

It was observed that the petitioner, per contra, insisted that the University was established under the Gujarat Private Universities Act, 2009. However, Universities were established to provide quality and industry relevant higher education and for related matters and hence, it could not be said that the Universities were not performing public duty. It was directed by the State Government and pervasive control over the functioning of it as was mentioned in Sec 31-35 of Chapter VI of the Act. Reliance was placed on Janet Jeyapaul vs. SRM University and ors. where the Top Court had held that the writ petition was maintainable against the deemed university and whose functions were governed by the UGC Act, 1956.

The bench of Justice Karia, while taking stock of the contentions referred to Mukesh Bhavarlal Bhandari and ors vs. Dr. Nagesh Bhandari and ors where the Coordinate Bench of the High Court in similar circumstances had reiterated that merely because the activity of the said research institute ensures to the benefit of the Indian public, it cannot be a guiding factor to determine the character of the Institute and bring the same within the sweep of ‘public duty or public function.

It was observed that the High Court also rejected the reference to Janet Jeyapaul since in the instant case and held that in the realm of a private contract, the Petitioner termination was to be decided.

Further, it was observed that it is not necessary to go into the merits of the case with regard to the issue of show-cause notice for providing an opportunity of hearing resulting into breach of principle of natural justice and weather the action of the respondent University is unfair or not because all such disputes essentially are in the realm of private contract.

Accordingly, the bench dismissed the petition.

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