Proof of recovery of contraband under NDPS Act

In a case of sudden recovery, independent witness may not be available. But if an independent witness is available, and the prosecution initially seeks to rely upon him, it cannot suddenly discard the witness because it finds him inconvenient, and place reliance upon police witnesses only. In the stringent nature of the provisions of the Act, the reverse burden of proof, the presumption of culpability under Section 35, and the presumption against the accused under Section 54, any reliance upon Section 114 of the Evidence Act in the facts of the present case, can only be at the risk of a fair trial to the accused.

The presumption against the accused of culpability under Section 35, and under Section 54 of the Act to explain possession satisfactorily, are rebuttable. It does not dispense with the obligation of the prosecution to prove the charge beyond all reasonable doubt. The presumptive provision with reverse burden of proof, does not sanction conviction on basis of preponderance of probability. Section 35 (2) provides that a fact can be said to have been proved if it is established beyond reasonable doubt and not on preponderance of probability. That the right of the accused to a fair trial could not be whittled down under the Act. Continue reading “Proof of recovery of contraband under NDPS Act”

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Validity of Appointment of Parliamentary Secretaries in India

Ceiling on number of Ministers.

Article 164(1A) of the Constitution of India is as under:

The total number of Ministers, including the Chief Minister, in the Council of Ministers in a State shall not exceed fifteen per cent of the total number of members of the Legislative Assembly of that State:

Provided that the number of Ministers, including the Chief Minister, in a State shall not be less than twelve;

Provided further that where the total number of Ministers, including the Chief Minister, in the Council of Ministers in any State at the commencement of the Constitution (Ninety-first Amendment) Act, 2003 exceeds the said fifteen per cent or the number specified in the first proviso, as the case may be, then the total number of Ministers in that State shall be brought in conformity with the provisions of this clause within six months from such date as the President may by public notification appoint.

Jumbo Cabinet in Assam.

Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Ordinance, 2004

On 3.11.2004, the Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Ordinance, 2004 was promulgated which inter alia provided as under:

The Chief Minister may, having regard to the circumstances and the need of the situation, at any time appoint such number of Parliamentary Secretaries and assign to each of them such duties and functions as he may deem fit and proper.

Section 4 declares that Parliamentary Secretary should be of the rank and status of a Minister of State and exercise such powers, discharge such functions and perform such duties as may be assigned to him by the Chief Minister.

Section 4 – A Parliamentary Secretary shall be of the rank and status of a Minister of State and shall exercise such powers, discharge such functions and perform such duties as may be assigned to him by the Chief Minister by way of a notification published in the official Gazette.

Now this is apparently provides what Article 164(1A) expressly prohibits. So is it valid?

Creation of Political Executive

Another argument is that the Political Executive (both national and state level) is the creation of the Constitution itself. Articles 74(1) 6, 75(1)7, 163(1)8 and 164(1)9 of the Constitution create the offices of the Prime Minister, Chief Minister and other Ministers respectively. The framers of the Constitution were aware of the different offices in vogue (such as Parliamentary Secretaries, Deputy Ministers etc) in various parliamentary democracies but chose to make provisions for only the office of ‘Minister’. Continue reading “Validity of Appointment of Parliamentary Secretaries in India”

Justice to witnesses

Witnesses appearing in courts also need justice

Now when we speak of the ends of justice, we mean justice not only to the defendant and to the other side but also to witnesses and others who may be inconvenienced.

It is an unfortunate fact that the convenience of the witness is ordinarily lost sight of in this class of case and yet be is the one that deserves the greatest consideration. As a rule, he is not particularly interested in the dispute but he is vitally interested in his own affairs which he is compelled to abandon because a Court orders him to come to the assistance of one or other of the parties to a dispute. His own business has to suffer. He may have to leave his family and his affairs for days on end. He is usually out of pocket. Often he is a poor man living in an out of the way village and may have to trudge many weary miles on foot. And when he gets there, there are no arrangements for him. He is not given accommodation; and when he reaches the Court, in most places there is no room in which he can wait. He has to loiter about in the verandahs or under the trees, shivering in the cold of winter and exposed to the heat of summer , wet and miserable in the rains: and then, after wasting hours and sometimes days for his turn, he is brusquely told that he must go back and come again another day. Continue reading “Justice to witnesses”

Are you abusing the process of court?

Conduct of a litigant before court.

Whenever a person approaches a Court of Equity, in the exercise of its extraordinary jurisdiction, it is expected that he will approach the said court not only with clean hands but also with a clean mind, a clean heart and clean objectives.

Thus, he who seeks equity must do equity. The legal maxim “Jure Naturae Aequum Est Neminem cum Alterius Detrimento Et Injuria Fieri Locupletiorem”, means that it is a law of nature that one should not be enriched by causing loss or injury to another.

The judicial process cannot become an instrument of oppression or abuse, or a means in the process of the court to subvert justice, for the reason that the court exercises its jurisdiction, only in furtherance of justice. The interests of justice and public interest coalesce, and therefore, they are very often one and the same. A petition or an affidavit containing a misleading and/or an inaccurate statement, only to achieve an ulterior purpose, amounts to an abuse of process of the court.

[Source: V.Chandrasekaran vs Administrative Officer, decided on 18 September, 2012 by Supreme Court.]

The quest for personal gain has become so intense that those involved in litigation do not hesitate to seek shelter of falsehood, misrepresentation and suppression of facts in the course of court proceedings. A litigant who attempts to pollute the stream of justice, or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final. Continue reading “Are you abusing the process of court?”

Appeal from Caeser to Caeser’s wife.

Existence of alternate remedy.

Invocation of writ remedy under article 226 pre-supposes that there is no alternate remedy?

There is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It should be made specifically clear that where the order complained against is alleged to be illegal or invalid as being contrary to law, a petition at the in stance of person adversely affected by it, would lie to the High Court under Art. 226 and such a petition cannot be rejected on the ground that an appeal lies to the higher officer or the State Government. An appeal in all cases cannot be said to provide in all situations an alternative effective remedy keeping aside the nice distinction between jurisdiction and merits.

Look at the fact situation in this case. Power was exercised formally by the authority set up under the Rules to grant contract but effectively and for all practical purposes by the Chief Minister of the State. To whom do you appeal in a State administration against the decision of the Chief Minister ? The clutch of appeal from Caesar to Caesar wife can only be bettered by appeal from one’s own order to oneself. Therefore this is a case in which the High Court was not at all justified in throwing out the petition on the untenable ground that the appellant had an effective alternative remedy. The High Court did not pose to itself the question, who would grant relief when the impugned order is passed at the instance of the Chief Minister of the State. To whom did the High Court want the appeal to be filed over the decision of the Chief Minister. There was no answer and that by itself without anything more would be sufficient to set aside the judgment of the High Court.

[Source: Ram And Shyam Company vs State Of Haryana, AIR 1985 SC 1147, 1985 SCR Supl. (1) 541]

Effect of exhibition of document in evidence

Document exhibited as proved.

Section 36 of the Stamp Act is in these terms:-
“Where an instrument has been admitted in evidence, such admission shall not, except as provided in section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.”

That section is categorical in its terms that when a document has once been admitted in evidence, such admission cannot be called in question at any stage of the suit or the proceeding on the ground that the instrument had not been duly stamped. The only exception recognised by the section is the class of cases contemplated by s. 61, which is not material to the present controversy. Section 36 does not admit of other exceptions. Where a question as to the admissibility of a document is raised on the ground that it has not been stamped, or has not been properly stamped, it has to be decided then and there when the document is tendered in evidence. Once the Court, rightly or wrongly, decides to admit the document in evidence, so far as the parties are concerned, the matter is closed.

Continue reading “Effect of exhibition of document in evidence”

Urdu words used in revenue records

Hindi Urdu words used by Revenue/Land Records Department in India

राजस्व भाषा की जानकारी –

1 आबादी देह→ गॉंव का बसा हुआ क्षेत्र ।
2 मौजा→ ग्राम
3 हदबस्त →त्हसील में गॉंव का सिलसिलावार नम्बर ।
4 मौजा बेचिराग →बिना आबादी का गॉंव ।
5 मिसल हकीयत→ बन्दोबस्त के समय विस्तारपूर्वक तैयार की गई जमाबन्दी ।
6 जमाबन्दी→ भूमि की मलकियत व बोने के अधिकारों की पुस्तक ।
7 इन्तकाल →मलकियत की तबदीली का आदेश ।
8 खसरा गिरदावरी→ खातेवार मलकियत,बोने व लगान का रजिस्टर ।
9 लाल किताब →गॉंव की भूमि से सम्बन्धित पूर्ण जानकारी देने वाली पुस्तक ।
11 शजरा नसब→ भूमिदारों की वंशावली ।
12 पैमाईश →भूमि का नापना ।
13 गज →भूमि नापने का पैमाना ।
14 अडडा →जरीब की पडताल करने के लिए भूमि पर बनाया गया माप ।
15 जरीब →भूमि नापने की 10 कर्म लम्बी लोहे की जंजीर ।
16 गठठा →57.157 ईंच जरीब का दसवां भाग ।
17 क्रम →66 ईंच लम्बा जरीब का दसवां भाग ।
18 क््रास →लम्ब डालने के लिए लकडी का यन्त्र ।
19 झण्डी →लाईन की सीधाई के लिए 12 फुट का बांस ।
20 फरेरा→ दूर से झण्डी देखने के लिए बांस पर बंधा तिकोना रंग बिरंगा कपडा ।
21 सूए →पैमाईश के लिए एक फुट सरिया ।
22 पैमाना पीतल →म्सावी बनाने के लिए पीतल का बना हुआ ईंच ।
23 म्ुसावी→ मोटे कागज पर खेतों की सीमायें दर्शाने वाला नक्शा ।
24 शजरा→ खेतों की सीमायें दिखाने वाला नक्शा ।

Continue reading “Urdu words used in revenue records”

Locus Standi of Consignee to sue

Locus standi of Consignee to sue.

Suit by consignor for damages from Railways —  A consignee is not necessarily the owner of the goods and merely because consignee is different, the title of goods cannot be presumed to have been passed to the consignee.

Ordinarily, it is the consignor who can sue if there is damage to the consignment, for the contract of carriage is between the consignor and the railway administration. Where the property in the goods carried has passed from the consignor to some-one-else, that other person may be able to sue.

It is true that a railway receipt is a document of title to goods covered by it, but from that alone it does not follow, where the consignor and consignee are different, that the consignee is necessarily the owner of goods and the consignor in such circumstances can never be the owner of the goods. The mere fact that the consignee is different from the consignor does not necessarily pass the title to the goods from the consignor to the consignee, and the question whether title to goods has passed to the consignee will have to be decided on other evidence. It is quite possible for the consignor to retain title in the goods himself while the consignment is booked in the name of another person.

It was contended that as an endorse to a document of title he was in any case entitled to maintain the suit. The trial court found on the evidence that it had been proved satisfactorily that Ishwara Nand was the owner of the goods. It also held that as an endorse of a document of title he was entitled to sue. These findings of the trial court on the evidence were accepted by the High Court in these words :-

“It was not contended before us that the finding arrived at by the learned court below that the plaintiff had the right to sue was wrong, nor could, in view of the overwhelming evidence, such an issue be raised. The evidence on the point has already been carefully analysed by the court below. We accept the finding and confirm it. It was also pointed out that Ishwara Nand was the endorsed consignee and in that capacity he had in any case a right to bring the suit. The correctness of this statement was not challenged before us.”

Thus there are concurrent findings of the two courts below that Ishwara Nand was the owner of the goods and that was why the railway receipt was endorsed in his favour. In these circumstances he is certainly entitled to maintain the suit. The contention that the plaintiffs in the two suits could not maintain them. must therefore be rejected.

[Source: Union of India v.  West Punjab Factories, Ltd., AIR 1966 SC 395: 1966(2) Audh LT 269: 1966(1) SCR 580]

Principles of interpretation of laws in India

Principles of interpretation

An ebook by Sandeep Bhalla.

Principles of interpretation is a kindle ebook, written for beginners and expert alike for those interested in law. Reading laws i.e. bare legislation itself can be tedious. In law an ‘and’ is not always an ‘and’ but can be an ‘or’. ‘Shall’ can be ‘may be’ or ‘vice versa or a ‘must be’, depending upon the context. Here is a book to understand this jargon:
The book cites precedents and where available, citations are linked to the live source of the judgement relied upon. A must for a practising lawyer and a student alike.

Clicking the picture above shall take you to Google play book store’s relevant page. Using Iphone or Kindle paperwhite? No problem. Click on this picture below to read Principles of Interpretation on Amazon Kindle. Continue reading “Principles of interpretation of laws in India”