Criminal Law is the Law related to Crime. Hence, it is also called the Law of Crimes. Other terms related to Criminal Law are Criminology – the systematic study of criminals and Penology – the study of punishments in relation to the crime and the management of prisons. Criminal Law is concerned with wrongs committed against the public as a whole.

Criminal Law in India
The Criminal Law of India is divided into two categories.
– Substantive Law
– Procedural Law
Substantive Law provides for the definitions of various offences and prescribes punishments for the respective offences. The Indian Penal Code, 1860 (IPC) falls under the Substantive Law.

Procedural Law provides a mechanism for the enforcement of the Criminal Law. The Code of Criminal Procedure, 1973 comes under this category.

PROVISIONS RELATED TO ARREST UNDER CRPC (Part1)

PROVISIONS RELATED TO ARREST UNDER CRPC (Part 1)

Introduction

An Arrest is an act of taking a person into custody as he/she may be suspected of a crime or an offence. It is done because a person is apprehended for doing something wrong. After arresting a person further procedures like interrogation and investigation is done. It is part of the Criminal Justice System. In an action of arrest, the person is physically detained by the concerned authority.

The term Arrest has been defined neither in the CrPC (The Code of Criminal Procedure,1973) nor IPC (Indian Penal Code,1860). The definition has not been provided even in any enactments dealing with Criminal Offences. The only indication of what an arrest constitutes can be made out of Section 46 of CrPC which deals with ‘How an arrest is made’. 

All you need to know about Preventive Arrest Laws in India - iPleadersIf broadly characterized arrest is of two types-

  1. Arrest made in pursuance with a warrant issued by the magistrate.
  2. Arrest made without any warrant but within the established legal provisions.

Another type of arrest is Private Arrest in which a person is arrested by another person. But it is allowed only in case a person commits a non-bailable offence in another person’s presence or is apprehended of committing a crime against a person or his property and when he is not given the correct address of his residence or it is unknown. But before arresting a person there should be sufficient apprehension and justifiable cause to arrest that particular person.

Section 41 says the police officer has to be satisfied that such arrest is necessary:

  1. To prevent such person from further committing such offence
  2. For purposes of investigation
  3. Prevent the person from causing evidence to disappear. 

If a person commits an offence which is non-arrestable then a warrant is necessary to be issued. The police cannot make such an arrest without a warrant. The warrant is issued by a Judge or a Magistrate on behalf of the state. An arrest warrant authorizes the arrest or detention of the person or capture or seizure of an individual’s property.  Section 41(1) of CrPC,1973 explains when a person can be arrested without any warrant. Section 41(2) of CrPC, 1973 states that subject to the condition in Section 42, a person cannot be arrested without a warrant and an order of the magistrate in case of non-cognizable offence and where a complaint is made. The procedures to be followed while arresting a person find its mention in Section 46 of the Code. Section 41A –  gives direction to the police officer to issue a notice to the person if he feels the person is not required to be arrested. This in effect means that contrary to popular perception, a police officer is not required to arrest a person if he does not think such arrest is not required for the purposes mentioned in Section 41 mentioned above. 

Section 41B – enjoins that while making an arrest the police officer shall: –

  1. a) bear an accurate, visible, and clear identification of name which will facilitate the identification.
  2. b) prepare a memo of arrest which shall be:
  3. Attested by one family member or member of the society.
  4. counter signed by the accused.
  5. This evidently is in terms of Article 20/21 which insulates a person from

arbitrary arrest. 

Section 41-C: When a memo is not attested by a family member, the person so arrested must be informed that he has a right to inform a family member. This once again protects a person from arbitrary arrest and prevents mysterious disappearances.

Section 41-D: The person arrested can meet an advocate of his choice during interrogation. This is once again in line with the constitutional right of a person to counsel, even if it is free.

Arrest on refusal to give name and residence

Section 42 of CrPC states the course of action in case of arrest on refusal to give name and residence. 

Section 42(1) says that when a person has committed a non-cognizable offence refuses to give his name or address or gives a false name and address on the demand of the officer, he may be arrested by such officer to ascertain his correct name or residence.

Section 42(2) says that the person so arrested may be released after ascertaining the true name or residence but only after executing a bond, with or without sureties, to appear before the magistrate if required. But if the person is not a resident of India then the bond should be secured by a security or securities resident of India.

Section 42(3) says that if the true name or address of the person is not found within twenty-four hours or if he fails to execute the bond or required sureties then he has to be presented before the magistrate falling within the jurisdiction.

Procedure of arrest by a private person

The procedure of arrest by a private person is expressly provided in Section 43 of the Criminal Procedural Code.

Section 43(1) states that a private person can arrest another person who commits a non-bailable offence or any proclaimed offender and without wasting any unnecessary time can be taken to a police officer and in the absence of the officer the accused has to be taken to the nearest police station.

Section 43(2) says that if the arrest of that person comes under Section 41, the police officer shall re-arrest him.

Section 43(3) provides that if there is sufficient reason to believe that he has committed a bailable offence and refuses to give his true name or address to the police officer, he shall be dealt with according to the provisions of Section 42. But he shall be released if there is no sufficient reason to believe that he has committed an offence.

Arrest by magistrate

Magistrate here includes both an executive or judicial Magistrate. According to Section 44(1) of CrPC when an offence is committed in the presence of a magistrate within his local jurisdiction, he has the power to arrest that person himself or order any person for arrest and subject to the conditions relating to bail, commit the accused to custody.

Section 44(2) in addition to clause 1 also provides that the Magistrate can also arrest or direct any person in his presence, within his local jurisdiction of whom he is competent to arrest at that time and in the circumstances to arrest. 

An exception of the Armed forces

The members of the Armed Forces are protected from arrest as provided in Section 45 of CrPC.

Section 45(1) states that no member of the armed forces can be arrested for anything done while discharging the official duties except with the consent of the Central Government. It is subject to the conditions mentioned in Section 41-44 of the Code.

Section 45(2) lays out that the State Government may through a notification can direct that the sub-section (1) shall apply to any class or category of members of Armed forces who are charged with the maintenance of public order as may be specified thereupon, whenever they are serving. In other words, the State government just like the Central Government is empowered to use the power mentioned in sub-section (1).

Provisions related to arrest of women

Section 46(1) There should be a female officer to arrest a female.

Section 46(4) prescribes that no women shall be arrested after sunset and before sunrise, unless in exceptional cases, and female officers shall make the arrest in exceptional cases with permission of the Judicial magistrate.

Section 50 enjoins the police officer to inform the arrested person about the grounds of arrest and that he is entitled to the right of bail and he could arrange the sureties.

Section 50(A)(1) makes it obligatory for the police officer making the arrest to

immediately inform the arrestee’s friends, relatives or such other persons about the place

where the arrested person is being detained and inform the arrested person of such

rights. Entries of all the arrests shall be kept at the police station.

Section 50(2) says “the police officer shall inform the arrested person of his rights under sub-section (1) as soon as he is brought to the police station”.

Under Section 56, a police officer is to immediately take a person arrested without a warrant before the magistrate having jurisdiction or to the officer in charge of the police station.

Section 57 (A) says that the arrested person shall not be detained for more than 24 hours except the time taken during the journey before the production bef

ore the magistrate.

Section 58 says that the cases of all persons arrested without warrant must be reported to the local DM or SDM.

Under Section 60(A), arrests are to be made strictly according to the code, no arrest shall be made except in accordance with the provisions of the code.

Sec 50 (A)(4) prescribes that it shall be the duty of the magistrate before whom such arrested person is produced to satisfy himself that the requirement of section 50(2) – i.e., that the police had an obligation to inform relatives or such nominated persons where he is being kept in custody and the arrestee had been informed of such an obligation have been complied with.

Section 167 prescribes the procedure after the arrested person is brought before the magistrate. The police officer has to produce the relevant papers, including entries of the case diary. Sub section 3 gives discretion to the magistrate to remand an accused to police custody but only on recording his reasons.

Section 47 of CrPC provides for the search of a place sought to be entered. It further provides that the person having the warrant has the duty to enter the premises of the person being arrested. If the person is not able to easily ingress the premises or is not allowed to enter, then they have the authority to break open the door. It is done to take the person by surprise. 

But if there is any female occupying the premises then the person arrested has to give notice to that female to withdraw and shall afford every reasonable facility for withdrawing and they may break the apartment.

Any police officer or person making the arrest is authorised to break open the door in order to liberate himself if he is detained in that process. 

Secondly, in the case where the arrest is made under a warrant, the police officer under Section 75 CrPC is required to inform the person arrested about the substance of arrest and if required to show the order. If it is not done the arrest will become unlawful. 

The Indian Constitution also supports this and had emphasised upon it in Article 22(1), a fundamental right. It prescribes certain rights that are present with the accused at the time of arrest(fundamental in nature). It says that no person who is arrested shall be detained in custody without being informed about the reason for arrest and consult a legal practitioner of his choice. In re Madhu Limaye case, the petitioner was not informed about the grounds of his arrest along with his companions. He challenged this under Article 32 as it was in violation of his fundamental right before the Supreme Court. The Supreme Court observed that there was a violation of an essential and vital right of the petitioner.

Thirdly, when an arrest is made without a warrant by a police officer, it is his duty to show before the magistrate without unnecessary delay (usually within 24 hours). It is also mentioned that the person arrested cannot be taken to any place other than the police station before presenting before the magistrate. This is provided in Article 22 with Section 56 and Section 76 of the CrPC. However, there is a practice of detaining the person in isolation due to Covid -19, and the duration is not calculated towards 24 hours; which in the eyes of the author bad; because if a person is required to be produced before magistrate in 24 hours, then he can be so produced even through video conferencing, without having to produce him personally. Therefore, compromise with the constitutional provisions should not be taken lightly by the courts. 

Section 151 gives power to the police officials to arrest a person, without a warrant, on the suspicion that he may commit a cognizable offence. However, this comes with certain conditions: the anticipated offence should be cognizable and the officer should feel that the offence would be prevented only by an arrest of the suspect. Section 107 gives similar powers to the magistrate. However, Numerous petitions have been filed questioning the constitutional validity of these sections as it gives plenty of room for the misuse of powers under these sections.

 

ARREST WITH WARRANT

  1. Form of warrant of arrest and duration.—

(1) Every warrant of arrest issued by a Court under this Code shall be in writing, signed by the presiding officer of such Court and shall bear the seal of the Court. 

(2) Every such warrant shall remain in force until it is cancelled by the Court which issued it, or until it is executed. 

  1. Power to direct security to be taken.

(1) Any Court issuing a warrant for the arrest of any person may in its discretion direct by endorsement on the warrant that, if such person executes a bond with sufficient sureties for his attendance before the Court at a specified time and thereafter until otherwise directed by the Court, the officer to whom the warrant is directed shall take such security and shall release such person from custody. 

(2) The endorsement shall state— (a) the number of sureties; (b) the amount in which they and the person for whose arrest the warrant is issued, are to be respectively bound; (c) the time at which he is to attend before the Court. 

(3) Whenever security is taken under this section, the officer to whom the warrant is directed shall forward the bond to the Court. 

  1. Warrants to whom directed.

(1) A warrant of arrest shall ordinarily be directed to one or more police officers; but the Court issuing such a warrant may, if its immediate execution is necessary and no police officer is immediately available, direct it to any other person or persons, and such person or persons shall execute the same. 

(2) When a warrant is directed to more officers or persons than one, it may be executed by all, or by any one or more of them. 

  1. Warrant may be directed to any person.— 

(1) The Chief Judicial Magistrate or a Magistrate of the first class may direct a warrant to any person within his local jurisdiction for the arrest of any escaped convict, proclaimed offender or of any person who is accused of a non-bailable offence and is evading arrest. 

(2) Such person shall acknowledge in writing the receipt of the warrant, and shall execute it if the person for whose arrest it was issued, is in, or enters on, any land or other property under his charge. 

(3) When the person against whom such warrant is issued is arrested, he shall be made over with the warrant to the nearest police officer, who shall cause him to be taken before a Magistrate having jurisdiction in the case, unless security is taken under section 71.

RIGHT TO LEGAL REPRESENTATION

The Supreme court upheld the right of consulting a legal practitioner by an accused as a Constitutional right under Articles 21 and 22(1) of the Constitution of India.

Article 22(1) of the Constitution of India states that a person who is arrested shall not be denied the right to consult, and to be defended by, a legal practitioner of his choice.

Therefore, this mandatory procedural requirement, reiterated by the Supreme Court in the 1997 case of DK Basu v. Union of India, entails that the person arrested has to not only be informed of the grounds of such arrest, but should also be asked by the Magistrate as to whether he/she requires to consult and be defended by his choice of lawyer.

In the 2018 case of Gautam Navlakha v. State (NCT of Delhi), it had been submitted by the State the “seriousness of the offence and the urgency of the situation” may lead to overlooking the requirements of law in letter and spirit. However, the Delhi High Court observed that in such cases, the concerned Magistrate would have to be satisfied with the explanation offered for non-compliance – “the departure from the mandatory requirement of the Constitution and the CrPC ought not to be lightly countenanced”.

Moreover, mere representation by a legal aid lawyer, without ensuring whether the accused had the opportunity to consult a lawyer of her own choice, will not satisfy the requirement of Art 22(1) of the Constitution, the High Court ruled. The Court also held that the mere fact that there was a legal aid lawyer representing the accused will not satisfy the requirement of Article 22(1), if it was not an effective representation. The Court noted that the legal aid lawyer in that case had not made any submissions before the Magistrate issued the transit remand order, and therefore the representation was merely “cosmetic”.

Two paragraphs from the judgment are worthy of being quoted here : “Turning to the order dated 28thAugust 2018 of the learned CMM in the present case, the Court finds that a duty lawyer empanelled pursuant to the Scheme of the National Legal Services Authority (“NALSA‟), the statutory body under the Legal Services Authorities Act, 1987(LSAA), was shown representing the person arrested, i.e., the present Petitioner. However, the Magistrate does not appear to have asked the arrested person, as mandated by Article 22 (1) of the Constitution, whether he was informed about the grounds of arrest and whether he wishes to consult and be defended by a legal practitioner of his choice. This requirement does not get diluted one bit only because the proceedings are for transit remand”. “There is no mention of the legal aid lawyer having made any submission whatsoever. The learned CMM did not even think it necessary to record any such submission. It thus appears to the Court that the appearance of the Duty lawyer for the Petitioner was cosmetic and not in the true spirit of Article 22(1) of the Constitution read with Section 12 (g) of the LSA which guarantees free legal aid to every person in custody.

GUIDELINES FOR INTER-STATE ARREST

In Sandeep Kumar v State, a division bench of Justices Dr S Muralidhar and Talwant Singh of the Delhi High Court had also directed for the implementation of guidelines that had been proposed by the Committee and pertained to protocol that must be followed by the police in the event of inter-state investigation or arrest. Relying on Sections 48, 77, 79 and 80 of the CrPC,

The guidelines stated the following guidelines for inter-state arrest:

  1. The Police Officer after assignment of the case to him, must seek prior permission/sanction of the higher/superior officers in writing or on phone (in case of urgency) to go out of State/UT to carry out investigation.
  2. In a case when the police officer decides to effect an arrest, he must set out the facts and record reasons in writing disclosing the satisfaction that arrest is necessary for the purpose of investigation. At first instance, he should move the Jurisdictional Magistrate to seek arrest/search warrants under Section 78 and 79 Cr PC except in emergent cases when the time taken is likely to result in escape of the accused or disappearance of incriminating evidence or the procurement of arrest/search warrant would defeat the purpose. The Police Officer must record reasons as to what were the compelling reasons to visit another State without getting arrest/search warrants.
  3. Before proceeding outside the State, the police officer must make a comprehensive departure entry in the Daily Diary of his Police Station. It should contain names of the police officials and private individuals accompanying him; vehicle number; purpose of visit; specific place(s) to be visited; time and date of departure.
  4. If the possible arrestee is a female, a lady police officer will be made part of the team. The Police Officers should take their identity cards with them. All police officers in the team should be in uniform; bear accurate, visible and clear identification and name tags with their designations.
  5. Before visiting the other State, the Police Officer must endeavour to establish contact with the local Police Station in whose jurisdiction he is to conduct the investigation. He must carry with him the translated copies of the Complaint/FIR and other documents in the language of the State which he intends to visit.
  6. After reaching the destination, first of all, he should inform the concerned police station of the purpose of his visit to seek assistance and cooperation. The concerned SHO should provide/render all legal assistance to him. Entry to this effect must be made at the said police station.
  7. After reaching the spot of investigation, search, if any should be strictly conducted in compliance of the procedure laid down, u/s 100 Cr PC. All endeavour should be made to join independent public witnesses from the neighbourhood. In case of arrest, the police officer must follow the procedure u/s 41A and 41B and Section 50 and 51 Cr PC. The process of arrest carried out by the police must be in compliance with the guidelines given in DK Basu case (Supra) and the provisions of CrPC.
  8. The arrested person must be given an opportunity to consult his lawyer before he is taken out of State.
  9. While returning, the police officer must visit the local police station and cause an entry made in the Daily Diary specifying the name and address of the person(s) being taken out of the State; articles if any, recovered. The victim’s name can also be indicated.
  10. Endeavor should be made to obtain transit remand after producing the arrestee before the nearest Magistrate unless exigencies of the situation warrant otherwise and the person can be produced before the Magistrate having jurisdiction of the case without infringing the mandate of S. 56 and 57 of Cr.P.C. within 24 hours.
  11. The magistrate before whom the arrestee is produced, must apply his mind to the facts of the case and should not grant transit remand mechanically. He must satisfy himself that there exists material in the form of entries in the case diary that justifies the prayer for transit remand. The act of directing remand of an accused is fundamentally a judicial decision. The magistrate does not act in executive capacity while ordering detention of the accused. He must ensure that requirements of S. 41 (l)(b) are satisfied. The police officer must send the case diary along with the remand report so that the magistrate can appreciate the factual scenario and apply his mind whether there is a warrant for police remand or justification for judicial remand or there is no need for any remand at all. The magistrate should briefly set out reasons for his decision. (Manubhai Ratilal Patel v. State of Gujarat, (2013) 1 SCC 314).
  12. Another mandatory procedural requirement for the Magistrate considering a transit remand application is spelt out in Article 22 (1) of Constitution of India. This entitles the person arrested to be informed as soon as may be the grounds of such arrest. The Magistrate has to ensure that the arrested person is not denied the right to consult and to be defended by a legal practitioner of his choice. The Magistrate should ask the person arrested brought before him whether in fact he has been informed of the grounds of arrest and whether he requires to consult and be defended by any legal practitioner of his choice. (DK Basu, Supra) After the pronouncement of this judgment by the Hon’ble Supreme Court, new Sections 41A to 41D have been added to prevent unnecessary arrest and misuse of powers. Denying a person of his liberty is a serious matter.
  13. In terms of S. 41C, control rooms are established in every district. Names and addresses of the persons arrested and designation of the Police Officers who made the arrest be displayed. The Control Room at State level must collect details of the persons so arrested.
  14. The police officer must record all the proceedings conducted by him at the spot and prepare an ‘arrest memo’ indicating time, date of arrest and name of the relation/friend to whom intimation of arrest has been given. It must reveal the reasons for arrest.
  15. Since the arrestee is to be taken out of his State to a place away where he may not have any acquaintance, he may be permitted to take along with him (if possible), his family member/acquaintance to remain with him till he is produced before the jurisdictional Magistrate. Such family members would be able to arrange legal assistance for him.
  16. The arrested person must be produced before the jurisdictional Magistrate at the earliest, in any case, not beyond 24 hours from the date of arrest excluding the journey time so that arrest of such person and his detention, if necessary, may be justified by a judicial order. The 24 hours period prescribed u/s 57 Cr PC is the outermost limit beyond which a person cannot be detained in police custody. It does not empower a police officer to keep a person in a police station a minute longer than is necessary for the purpose of investigation and it does not give him an absolute right to keep a person till 24 hours.
  17. On arrival at the police station, the police officer must make an entry in the record and indicate the investigation carried out by him, the person arrested and the articles recovered. He should also inform his senior police officers/SHO concerned about it immediately. The superior Police Officer shall personally supervise such investigation.
  18. The police officer should effect arrest u/s 41(l)(b) Cr PC only when he has reasonable suspicion and credible information. He must satisfy himself about the existence of the material to effect arrest. There must be definite facts or averments as distinguished from vague surmises or personal feelings. The materials before him must be sufficient to cause a bona-de belief. He cannot take shelter under another person’s belief or judgment. He must affect arrest at his own risk and responsibility as the effect of illegal arrest could be commission of offence of wrongful confinement punishable u/s 342 IPC. Burden lies on the IO to satisfy the Court about his bona-de. No arrest can be made because it is lawful for the police officer to do so. Denying a person of his liberty is a serious matter.
  19. Medical examination soon after arrest to avoid possibility of physical torture during custody should be conducted.
  20. The IO must maintain a complete and comprehensive case diary indicating the investigation carried out by him.
  21. The log book of the vehicle used for transportation must be maintained and signed. The IO must indicate whether the vehicle was official or a private one; name of its driver and how and by whom it was arranged. Only official vehicles should be used for transportation to the extent possible.
  22. At the time of recovery of the prosecutrix, the police officer, if he is satisfied that she is an adult, should ascertain from her at the spot, whether she was present there with her free will. If the victim/prosecutrix is not willing to accompany the police officer or her relatives, the police officer must not exert force on the prosecutrix to take her away against her wishes. However, if the prosecutrix/victim of her own accord expresses willingness to accompany the police officer/relatives, her consent in writing should be obtained at the spot.
  23. In cases where the police officer finds the victim/prosecutrix to be a ‘minor’, soon after recovery, she should be produced before the local Child Welfare Committee for further decision regarding her custody. She must not be made to stay in the Police Station during night hours.
  24. Statement of the prosecutrix u/s 164 Cr.P.C. must be recorded at the earliest.
  25. MHA/Central Govt/Commissioner of Police must frame suitable guidelines for police officers to render all suitable assistance. The failure to adhere to the rules/guidelines should render the police officer liable for departmental action as well as contempt of the Court.
  26. The public prosecutor should provide required assistance to the police officer visiting his State at the time of seeking transit remand.
  27. The MHA/State Government should circulate the Rules/Guidelines/Notifications etc. from time to time to the Police officers in the State to create awareness. Periodically training should be provided to the Police Officers to sensitize them.
  28. Instructions/Guidelines of similar nature should exist in all the States/UTs for speedy, smooth and effective inter-State investigation.
  29. The delinquent Police Officer can be directed to pay compensation under the public law and by way of strict liability.
  30. If, in case of urgency or other considerations in the interest of investigation, it is not found feasible to inform the police station encompassing the jurisdiction of the search, seizure, arrest or investigation before the event, this should be done soon after the search, seizure, arrest etc. has been conducted.

Criticism of the Gujarat Land Grabbing (Prohibition) Act, 2020 (Part 2)

Criticism of the Gujarat Land Grabbing (Prohibition) Act, 2020 (Part 2)

Definition and estimates of land grabs | Global Challenges

SIMILARITIES BETWEEN THE ACTS BY OTHER STATES

  • The majority of the definitions which are mentioned in both the acts  such as: person, land grabbing, land grabber.
  • Section 6 of the act which is termed as “offence by the companies” and which laid down the certain conditions and definitions  of a “company” and “director”.
  • Section 11 which contains the “burden of proof”, in which an accused has to prove its innocence.
  • The power to override other laws.
  • The authority and a time frame to the government to make rules.
  • The Prohibition of alienation of lands grabbed.
  • The powers of the State government to remove difficulties, if arises in giving effect to the provisions of this act.

DIFFERENCES BETWEEN THE ACTS BY OTHER STATES/ COMPARATIVE ANALYSIS

BASIS               GUJARAT               KARNATAKA         Andhra Pradesh
Definition of land grabbing(d) “land grabber” means a person who commits land grabbing and includes any person who gives financial aid to any person for taking illegal possession of lands or for construction of unauthorized structures thereon, or who collects or attempts to collect from any occupiers of such lands rent, compensation and other charges by criminal intimidation, or who abets the doing of any of the above mentioned acts, and also includes the successors-in-interest; 

(e) “land grabbing” means every activity of land grabber to occupy or attempt to occupy with or without the use of force, threat, intimidation and deceit, any land (whether belonging to the Government, a Public Sector Undertaking, a local authority, a religious or charitable institution or any other private person) over which he or they have no ownership, title or physical possession, without any lawful entitlement and with a view to illegally taking possession of such land or creating illegal tenancies or lease or licence, agreements or transfer or sale or by constructing unauthorized structures thereon for sale or hire or use or occupation of such unauthorized structures and the term “grabbed land” shall be construed accordingly; 

(e)“land grabber’’ means a person or group of persons or a Society, who commits or has committed land grabbing and includes any person who gives financial aid to any person for taking illegal possession of lands or for construction of unauthorised structures thereon, or who collects or attempts to collect from any occupiers of such lands rent, compensation and other charges by criminal intimidation, or who abets the doing of any of the above mentioned acts; and also includes the successors in interest; 

(f) “land grabbing’’ means every activity of grabbing of any land, without any lawful entitlement and with a view to illegally taking possession of such land, or enter into or create illegal tenancies or lease and licences agreements construct unauthorised structures thereon for sale or hire, or give such lands to any person on rental or lease and license basis for construction, or use and occupation, of unauthorised structures; and the term “to grab land’’ shall be construed accordingly;  

(d)”land grabber” means a person or a group of persons who commits land grabbing and includes any person who gives financial aid to any person for taking illegal possession of lands or for construction of unauthorised structures thereon, or who collects or attempts to collect from any occupiers of such lands rent, compensation and other charges by criminal intimidation, or who abets the doing of any of the above mentioned acts, and also includes the successors in-interest;

(g)”land grabbing” means every activity of grabbing of any land (whether belonging to the Government, a local authority, a religious or charitable institution or endowment, including a wakf, or any other private person) by a person or group of persons, without any lawful entitlement and with a view to illegally taking possession of such lands, or enter into or create illegal tenancies or lease and licence agreements or any other illegal agreements in respect of such lands, or to construct unauthorised structures thereon for sale or hire, or give such lands to any person on rental or lease and licence basis for construction, or use and occupation, of unauthorised structures; and the term “to grab land” shall be construed accordingly;

PunishmentThe punishment for the offence is imprisonment for a term which shall not be less than ten years but which may extend to 14 years and with fine which may extend to x.The punishment for the contravention of any provision under this act is imprisonment for a term which shall not less than one year but which may extend to three years and with fine which may extend to twenty five thousand rupees.The punishment for the contravention of any provision under this act is imprisonment for a term which shall not less than six months but which may extend upto five years and with fine which may extend to five thousand rupees.
SafeguardsSection 16 of this act provides power to make rules ; 

(1) The State Government may, by notification in the Official Gazette, make rules to carry out the purposes of this Act. 

(2) All rules made under this section shall be laid for not less than thirty days before the State Legislature as soon as possible after they are made, and shall be subject to such modifications as the legislature may make during the session in which they are so laid or the session immediately following.

Rule 5. Inquiry by the Committee:

  1. On receipt of the application, the Collector shall entrust the inquiry to the concerned Prant Officer and / or any other officer including a Police Officer as may be deemed fit. 
  2. In case of Government Land or in case where the person who has allegedly grabbed the land is headstrong person, the collector or the State Government may take suo-moto cognizance and action shall thereafter be taken in accordance with sub-rule (3) to (10).
  3. On receipt of the application, the Prant Officer or the officer to whom the application has been referred to shall ask concerned authorities to furnish report containing all the details and permission issued by them along with relevant documents within 5 days. 
  4. An inquiry shall be conducted for the prima facie locus standi of the applicant based on reports and records received from different authorities; and a conclusion to be derived whether a land title can be established.
  5.  An inquiry shall be conducted by the Prant Officer or the officer to whom application has been referred to, whether Land in question has been occupied or attempted to occupy, in unauthorized manner, with the use of force, threat, intimidation and deceit or by cheating, fraud and/or forgery. 
  6. The Prant Officer or the officer authorized by Collector shall submit the final report to the Collector within 21 days from the date of the receipt of the application. The report shall state whether prima facie case under the Act is established or not; The committee may also ask for further inquiry if it considers necessary. 
  7. In case of unauthorized, continued occupancy of the land which was allotted or leased to any person by the Government with conditions attached, is cancelled by the competent authority or on the expiry of lease and renewal of application for the same is not under consideration then under such circumstances the committee may consider such act as land grabbing. 
  8. The committee shall consider the inquiry report and decide further course of action including filing an FIR within 21 days. 
  9. As soon as the committee directs police to file FIR, it should be filed within 7 working days.
  10. The concerned investigation officer shall file final report before the special court within 30 days from the date of First Information Report.

Rule 6. Power and Functions of the Committee :

  1. The Committee shall meet at least once in fifteen days, at such time and place as the Chairman may decide;  All the applications/ complaints received, in prescribed Form, by the District Collector shall be placed before the Committee through the Member Secretary; 
  2. The Committee shall scrutinize the inquiry report and decide further course of action and if deemed fit refer the case to the Special Court to initiate court proceedings under section 9 and decision of the Committee shall be conveyed to the applicant.
In section 2 of the Karnataka Land Grabbing Prohibition Act, 2011, (Karnataka Act 38 of 2014) (hereinafter referred to as the Principal Act) after clause (d), the following proviso shall be and shall always be deemed to have been inserted, namely:-

“Provided that ‘land’ shall not include lands in respect of which applications for grant are pending on the date of commencement of this Ordinance,-

  1. under sections 94A, 94B, 94C and 94CC of the Karnataka Land Revenue Act, 1964 (Karnataka Act 12 of 1964);
  2. under the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (Central Act 2 of 2007);”
It applies to all lands situated within the limits of urban agglomeration as defined in clause (n) of Section 2 of the Urban Land (Ceiling and Regulation) Act, 1976 and a Municipality. 

It applies also to any other lands situated in such areas as the Government may, by notification specify having due regard to: —

   a. the urbanisable nature of the land; or 

  b. the usefulness or potential usefulness of such land for commercial, industrial, pisciculture of Prawn-culture purpose.

Rule 9. Notice to the Land Grabbers:- 

  1. The Special Court shall, before passing an order under sub-section (7) of Section 8 of the Act, and the Special Tribunal shall before passing an order under sub-section (5) of Section 7A of the Act, give notice to the land grabber in Form IV-A.
  2. The Special Tribunal shall, before passing an order under sub-section (5) of Section 7-A of the Act, give notice to the land grabber in Form IVB.

Rule 15 Procedure for taking possession:-

  1. The Court/Tribunal shall communicate its final decision or order to the affected parties and also to the Revenue Divisional Officer to give effect to the decisions of the Court.
  2. The Revenue Divisional Officer shall on receipt of the order of the Court issue or arrange to issue a direction in Form V deputing any Officer not lower in rank than a Revenue Inspector to take possession of the grabbed land on behalf of the Court and deliver possession of the land to the person ordered by the Court.
  3. A copy of the authorisation issued by the Revenue Divisional Officer shall be served or arranged to be served on the person in possession or occupation of the land, as the case may be.
  4. Where the person in possession or occupation of the grabbed land delivers possession thereof voluntarily, the officer so deputed by the Revenue Divisional Officer under sub-rule (2) shall record a statement of the person to that effect and also record a certificate in Form VI and send the same to the Revenue Divisional Officer concerned and the Court.
  5. Where the person in possession or occupation of the grabbed land fails to deliver possession of that land voluntarily the officer, so deputed under sub-rule (2) may enter on the land and take possession thereof on behalf of the Revenue Divisional Officer after removing any obstruction or unauthorised occupant, if any, on such land, by taking such Police assistance as may be necessary and record a certificate in Form VII duly attested by two witnesses.
  6. The certificate in Form VII shall be prepared in triplicate and one copy each shall be sent to the Special Court/Revenue Divisional Officer/Mandal Revenue Officer.
  7. Where the Revenue Divisional Officer directs the Officer so deputed to deliver possession to the person ordered by the Court, the Officer shall accordingly deliver possession and record a certificate to that effect.
  8. Where the Revenue Divisional Officer has been directed that the land taken possession of shall be kept under his control and management, the officer so deputed under sub-rule (2) shall, take possession of the land and report the same to the Revenue Divisional Officer and seek his directions.
  9. An order granting compensation and also profits and cost of redelivery passed in favour of an owner other than the Government, may be executed by the Court through the Tribunal in accordance with the provision of the Code of Civil Procedure, 1908.
  10. The Tribunal shall execute its order granting compensation and also profits and costs of redelivery passed in favour of an owner other than the Government in accordance with the provisions of the Code of Civil Procedure, 1908.
Constitution of special courtThe State Government may, with the concurrence of the Chief Justice of the High Court of Gujarat, by notification in the Official Gazette constitute one or more Special Courts for such area or areas, or for such cases or class or group of cases, as may be specified in the notification.

 

If any question arises as to the jurisdiction of any Special Court, it shall be referred to the State Government, whose decision in the matter will be final. 

A Special Court shall be presided over by a judge to be appointed by the State Government with the concurrence of the Chief Justice of the High Court of Gujarat. 

The State Government may also appoint, with the concurrence of the Chief Justice of the High Court of Gujarat, Additional Judges to exercise jurisdiction of the Special Court. 

A person cannot be qualified for appointment as a Judge or an Additional Judge of a Special Court unless he immediately before such appointment, is or has been a Sessions Judge or a District Judge. 

The Government from time to time may, by notification in the Official Gazette, reconstitute the Special Courts constituted under sub-section (1) and may, at any time abolish such Special Courts by a like notification. 

A Judge of the Special Court shall hold office for a term of three years from the date on which he enters upon his office, or until the Special Court is reconstituted or abolished under sub-section (6), whichever is earlier.

      The Special Court consists of a Chairman and four other members, which is appointed by the Government.

  1. Chairman- who is or was a judge of a High Court
  2. Two Judicial Members- who are or were District Judges 
  3. Two Revenue Members-   who hold or have held a post not below the rank of a Deputy Commissioner of the District 

    Provided that the appointment of a person who was a Judge of a High Court as the Chairman of the Special Court shall be made after consultation with the Chief Justice of the High Court.

The Government has power to constitute Additional Bench of the Special Court, if it finds necessary.

The Chairman or other member shall hold office as such for a term of three years from the date on which he enters upon his office, or until the Special Court is reconstituted whichever is later.

A Special Court shall consist of a Chairman and four other members, to be appointed by the Government.

  1. Chairman- who is or was a judge of a High Court
  2. Two Judicial Members- who are or were District Judges 
  3. Two Revenue Members- who hold or have held a post not below the rank of a District Collector.

     Provided that the appointment of a person who was a Judge of a High Court as the Chairman of the Special Court shall be made after consultation with the Chief Justice of the High Court concerned;

      Provided further that where sitting judge of a High Court is to be appointed as Chairman, such appointment shall be made after nomination by the Chief Justice of the High Court concerned , with the concurrence of the Chief Justice of India.

The Chairman or other member shall hold office as such for a

term of two years from the date on which he enters upon his office, or until the Special Court is reconstituted or abolished under sub-section (4), whichever is earlier.

Special Tribunal and its powers, etc :Every Special Tribunal have power to try all cases not taken cognizance of by the Special Court relating to any alleged act  land grabbing, or with respect to the ownership and title to, or lawful possession of the land grabbing, or with respect to the ownership and title to, or lawful possession of the land grabbed whether before or after the commencement of the Andhra Pradesh Land Grabbing (Prohibition)(Amendment) Act, 1987 and brought before it and pass such orders (including orders byway raf interim directions) as it deems fit : Provided that, if in the opinion of the Special Tribunal, any case brought before it is prima facie frivolous, or vexatious it shall reject the same without any further enquiry:

Provided further that if in the opinion of the Special Tribunal any case brought before it is a fit case to be tried by the Special Court it may

for reasons to be recorded by it transfer the case to the Special

Court for its decision in the matter.

 

CONCLUSION:

Thus, in view of what is discussed in the present article, it is clear that the act suffers from several infirmities, which makes the act in conflict with various other laws of the land and the constitution of India. It is also clear that identical legislations in other states  have more procedural safeguards against arbitrary exercise of powers under the Land Grabbing Act by the administrative wing of the State Government. Further, the act of Andhra Pradesh also gives an opportunity to vacate and in case of failure to vacate, an opportunity to hear before taking cognizance of the criminal case. Therefore, it is believed that the land grabbing act of Gujarat needs several changes especially in the rules part, which is bereft of procedural safeguards and additionally, certain draconian provisions like providing a remedy under land grabbing act even in case of private dispute and not considering the law of limitation along with several other conflicting provisions of the land grabbing act with other central as well as state legislations, makes is a subject matter of judicial review by the High Court of Gujarat. A petition has been filed in Gujarat High Court challenging the constitutional validity of Gujarat Land Grabbing (Prohibition) Act, 2020, a special law implemented recently by the State Government that has many stringent provisions including jail term from 10 to 14 years, registration of offences with retrospective effects, among others. It is hoped that the State Government itself revamps the law to make it consistent with other substantive and procedural laws along with diluting the draconian provisions of the law. 

 

Author: Vinay Sachdev & Dhruvil Kanabar

Editor: Adv. Aditya Bhatt & Adv. Chandni Joshi

 

Criticism of the Gujarat Land Grabbing (Prohibition) Act, 2020 (Part 1)

Criticism of the Gujarat Land Grabbing (Prohibition) Act, 2020 

BACKGROUND:

In 2020, The Government of Gujarat passed the Gujarat Land Grabbing (Prohibition) Act to “ensure that no criminals and land mafia usurp land of farmers”. A central means of achieving this was to create a new offence of “land grabbing” and to create “Special Courts” for dealing with land grabbing cases that would finish them within six months. Similar land Grabbing laws have been introduced in the States of Assam (2010), Odisha (2015 ordinance), Andhra Pradesh (1982), and Karnataka (2016). Earlier some people were making false claims on the title of land parcels and then extorting money from lawful owners to let go their “claim”. So the government has brought up this stringent law.

This article discusses an attempt to discuss some problems with the Karnataka version of the Land Grabbing Act. The problems are not restricted to issues with the constitutional validity of the law, but cover more ground that touches broader policy issues. Before proceeding further though, a caveat. Surprisingly, it seems that the constitutional validity of these statutes has rarely come up for scrutiny before the state High Courts. Searching for cases, I only came across constitutional challenges to how the Special Court is constituted under the Gujarat law. We couldn’t find anything from Odisha or Assam. Thus, whatever is argued here is based on an assumption that the issues of constitutional validity have not directly come up before any High Court or Supreme Court yet. If they have, please share the judgment! 

All about Gujarat Land Grabbing and Prohibition Bill, 2020 | Housing News

 WHAT IS “LAND GRABBING”? HOW SERIOUS IS IT?

Land Grabber [defined under Section 2(d) of the Act] is a person who commits land grabbing, or abets others in doing so. Land here means land belonging to government, essentially [Section 2(c)]. As defined under Section 2(e), “Land Grabbing” means:

 …  every activity of land grabber to occupy or attempt to occupy with or without the use of force, threat, intimidation and deceit, any land over which he or they have no ownership, title or physical possession, without any lawful entitlement and with a view to illegally taking possession of such land or creating illegal tenancies or lease or licence, agreements or transfer or sale or by constructing unauthorized structures … 

The definition is not very helpful. It contains a clear “physical conduct” requirement: there must be “grabbing of any land without lawful entitlement”. But there must be an associated mental state with this conduct that makes it criminal. Here, this is grabbing land to which you have no title, with a view to (i) take illegal possession, (ii) create illegal tenancies / lease / license deals, (iii) build structures for sale / hire, (iv) hand over the land to someone else to do all of these things. Since you would rarely end up “grabbing” any land which you don’t own without wanting to take illegal possession over it, one would think that it isn’t too difficult to prove this crime. But more on that later.

This is not the only offence under the statute. Section 5 lists “Penalty for other offences in connection with land grabbing” and criminalises other acts, such as (i) selling grabbed land / advertising about it, (ii) instigating or inciting someone to grab land, (iii) uses grabbed land for any purpose, or knowingly permits it to be used, (iv) enters into deals about constructing on grabbed land, (v) “causes or procures or attempts to procure any person” to do any of the above. Again, one wonders why this was needed given the massive overlap between the two provisions.  

Land Grabbing and all other offences in connection with it, are punishable with at least 10 year and potentially up to 14 years in prison, along with a fine which could go up to Jantri Value of such grabbed land[Sections 4, 5]. If that doesn’t sound serious enough,  Moreover, since the statute does not provide whether the offence is bailable or not, the Cr.P.C. makes it non-bailable by virtue of it being punishable up to ten years in prison. Why would such broad powers be given to states? The definition of “Land Grabber” gives a hint. It is not only talking about persons who take illegal possession. Rather, it focuses on the idea of organised activity geared towards land grabbing. It speaks of “a group of persons or a society” engaging in this, or giving “financial aid” to another for grabbing land or illegally constructing upon it. The definition even speaks of persons “collecting or attempting to collect” money from occupiers of grabbed land by “criminal intimidation”, again hinting at organised crime.* It is quite common for organised crime to not be limited to just one activity, which is why allowing police powers of arrest for these things may help them get dangerous persons off the streets.

That is the logic behind having these powers, but as we know, it is quite common for such powers to be misused. That is a serious concern given how loosely the definition is crafted, and how widely the net is cast. Take a hypothetical: someone tells the police that X is illegally occupying some land. Since illegal occupation would rarely mean that it is not done with a view toward illegal possession, that is enough for police to arrest. Someone needn’t even tell the police that actually, as they can do it themselves. The problem goes further: the act penalises a person who “causes or procures or attempts to procure” anyone to engage in land grabbing. This is not a regular law that penalises attempting to commit a crime. It penalises attempting to get someone to attempt the crime – “attempts to procure any person to do any of the above”. That theoretically means anyone can be arrested and sent to jail, and practically means that the police have a tool to arrest and jail persons on the pretext of allegedly committing this offence.      

In Act of Andhra Pradesh, it states specifically under section 5 that “the Special Tribunal shall, before passing an order under this sub-section, give to the land grabber an opportunity of making his representation or of adducing evidence, if any, in this regard and consider every such representation and evidence” and also section 8(1-A) states that “the Special Court shall not take cognizance of any such case without hearing the petitioner” but  there are no such specific provisions in Act of Gujarat.

Proving “Land Grabbing” in Court – More Reverse Burdens

Section 11 of the Karnataka, Section 10 of the Andhra Pradesh Act and Section 11 of the Gujarat act, all three acts provide that in any proceedings under the Act, if the government can prima facie prove that the land in question was government owned, then the Special Court shall presume that the person is a Land Grabber, and the burden to prove he is not guilty of the crime lies on the person accused. Using reverse onus clauses – where the state does not have to prove guilt – to make it easy for the government to get convictions is now very common. It is a practice blessed by the Supreme Court, which has held them legal as long as the government proves initial facts to shift the burden on to the accused. Here, the government is asked to prove something: that the land was government owned. Does this justify the shifting of burdens? I am not so sure.       

First, the provision here applies to all proceedings under the Act: which means that at every stage such as bail, initial remand, and the start of the trial, the accused will be contesting innocence. This, at the stage of bail where the accused may not yet have the means to assemble a defence, make the bargain particularly unfair. Second, the state needs to prima facie prove something. But what does it mean to prima facie “prove” anything? The Evidence Act in Section 113-B asks the state to “show” facts, and usually the law asks it to “prove” facts. But prima facie proof suggests a lower standard. If the state already doesn’t need to prove guilt, is it legal for the burden to prove initial facts to be even lower than proper proof beyond reasonable doubt? Third, Section 11 asks the government to prima facie prove that the land in question was government owned. Is this enough? Logically, one imagines that the state will also need to prove that the land was being occupied by the accused. Assuming this condition is incorporated into the provision, we come to the remainder of the offence-requirement. The accused would then have to prove that her occupation of the land was not illegal. That seems fine – property documents etc. should be with the accused and this would simply require her to bring them to court. But poor persons often don’t have property documents, despite paying good money for being able to live on land which may not even be government land. Eventually then, they are the ones who stand to suffer.

There are some relevant facts about the Burden of Proof in the Case of Noor Aga vs. State of Punjab and Ors., it states that presumption of burden of proof would operate in the trial of accused only in the event the circumstances contained therein are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied, the legal burden would shift to an accused.

So the question is. “ under what circumstances, it is said that prima facie it is proven about the burden of innocence?” it is not clearly mentioned in this act. So there should any justification regarding the burden of proof where it reverses. 

FURTHER DOUBTS AS TO THE CONSTITUTIONAL AND LEGAL VALIDITY OF THE ACT:

  1. Violation of Article 20- Section 9 of the act provides taking an action by the Special Court in respect of the land grabbed whether before or after the commencement of the Act. Thus, the Act has retrospective applicability and it makes the past innocent person as a criminal by post facto law which violates the fundamental rights of a citizen.
  2. Violation of Article 21-  The Section 4,9 and 11 of the act infringe the fundamental right of the person which are concerned under Article 21. The act also does not provide any summary procedure of eviction of an unauthorized occupant with a detailed procedure of issuance of notice for eviction, its adjudication by the competent authority. The fair and reasonable procedure is not contemplated under the Act and hence it would violate the fundamental rights of the person concerned under Article 21 of the Constitution of India.
  3. Conflicts with Limitation Act 1963: The Section 27, 65, 111 and 112 of the Limitation Act 1963 provides a statutory period of limitation that is allowed for possession of immovable property or any interest is 12 years in the case of private property and 30 years for public prop property, from the date the trespasser occupies the property. Section 27 read with Article 65 of the Limitation Act extinguishes the right of a lawful owner in respect of land or immovable property if within the time stipulated therein the owner fails to assert his right to have possession. The provisions of the Act are repugnant to and in conflict with the above provisions because the act does not provide any remedy to the occupier which exceeded the tenure of 30 years instead, it declares the person guilty who have occupied the land before the commencement of this act.
  4. Eviction of unauthorized personThe section 5 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 and the Gujarat Public Premises (Eviction of Unauthorized Occupants) Act, 1972. provide for a summary procedure of eviction of an unauthorized occupant with a detailed procedure of issuance of notice for eviction, its adjudication by the competent officer and providing an appeal against the order of the competent authority. But the provisions of Gujarat land grabbing act do not have such fair and reasonable procedure, hence it also conflicts with the above two acts.
  5. Creates contradiction with Code of criminal procedure The section 167 (2) (a) of CRPC provides for 60 or days 90 days for submitting final report after the registration of the FIR and arrest but In Gujarat land grabbing act, the Rule 5 (10) provides for submission of the final report by Police within 30 days of the registration of the FIR which is absolutely unreasonable as the property and land disputes involve many complex legal and factual issues, which takes lot of time and understanding.
  6. Contradiction the doctrine of proportionality-  The doctrine of proportionality means the administrative action should not be more drastic than it ought to be for obtaining the desired result.  The section 4 of the land grabbing and prohibition Act which states that the convicted person should   be punished with imprisonment for a term which shall not be less than ten years but which may extend to fourteen years and with fine which may extend to Jantri value of such properties violates the doctrine of proportionality which has been used by apex court since 1950..
  7. Contradiction with Section 202 of the Gujarat Land Revenue Code, 1879- The Section 202 of the Gujarat Land Revenue Code,1879 provides a detailed procedure on how to evict an unauthorized occupant  by serving him a notice and a reasonable time to vacate the land but Gujarat Land Grabbing (Prohibition) Act, 2020 does not provide any such fair and reasonable time or any detail procedure, hence it conflicts with the Gujarat Land Revenue Code, 1879.
  8. Conflicts with section 101 and 102 of the Evidence Act, 1872- The section 101 states that whoever desire any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exists. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.  The section 102 of the Evidence Act, 1872 states that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. But According to section 11 of the Gujarat Land Grabbing (Prohibition) Act, 2020, the special court is bound to presume that the person who is alleged to have grabbed land is a land grabber. The burden of proof that the land has not been grabbed by him, shall be on such a person. The section 11 of the Gujarat Land Grabbing (Prohibition) Act, 2020 doesn’t deem to be fit and the interest of justice equity and good conscience.
  9. Limit the scope of interference of Higher Court- In the Karnataka Land Grabbing (Prohibition) Act, 2011, the court can proceed to rehear the case in manner provided by the Code of Criminal Procedure, 1973 but in Gujarat Land Grabbing (Prohibition) Act, 2020 in section 9(2), it states that in respect of alleged act of land grabbing determination of question of title and ownership to, or lawful possession of any land grabbed under this act, shall, subject to the provision of Gujarat Land Grabbing(Prohibition) Act, 2020. The decision of the special court will be final. There is no option to appeal, a revision or a review. The only option he has is the writ of certiorari.
  10. Burden of proof on victim- The provisions of Sections 11 of the Gujarat Land Grabbing Act being draconian in nature imposing reverse burden on an accused and, thus, being contrary to Article 14(2) of the International Covenant on Civil and Political Rights providing for ‘an accused to be innocent until proven guilty’ must be held to be ultra vires Articles 14 and 21 of the Constitution of India. The Act contains draconian provisions. Only because the burden of proof under certain circumstances is placed on the accused, the same, by itself, in our opinion, would not render the impugned provisions unconstitutional. The approach of the Common Law is that it is the duty of the prosecution to prove a person guilty. Indisputably this common law principle was subject to parliamentary legislation to the contrary. The concern now shown worldwide is that the Parliaments had frequently been making inroads on the basic presumption of innocence. Unfortunately, unlike other countries no systematic study has been made in India as to how many offences are triable in the Court, where the legal burden is on the accused. Presumption is raised only when certain foundational facts are established by the prosecution. The accused in such an event would be entitled to show that he has not violated the provisions of the Act. Fairness and reasonableness of trial as also maintenance of the individual dignity of the accused must be uppermost in the court’s mind.
  11. Demolition under BPMC Act, 1949- BPMC Act, 1949 clearly states the provision regarding the demolition over any illegal possession of the property. Here the Gujarat Land Grabbing (Prohibiton) Act, 2020 overrules the BPMC Act and provides provisions a not in interest of justice, equity and good conscience.
  12.  THE STREET VENDORS (PROTECTION OF LIVELIHOOD AND REGULATION OF STREET VENDING)      ACT,2014- The Gujarat Land Grabbing (Prohibition) Act, 2020 has failed to check the ground reality of the state. There are many street vendors who do occupy the land and vacate after the particular time. There is a special act called THE STREET VENDORS (PROTECTION OF LIVELIHOOD AND REGULATION OF STREET VENDING) ACT,2014 which describes rules, provisions, punishment for street vendors but there are no provision in The Gujarat Land Grabbing (prohibition) Act, 2020 for the street vendors. This act is not in interest of justice or equity for the Street Vendors. Further that this act can create a threat to the Street Vendors who occupy land for sometime for their livelihood.

Author: Vinay Sachdev & Dhruvil Kanabar

Editor: Adv. Aditya Bhatt & Adv. Chandni Joshi

Glimpse of NDPS Act 1985

Glimpse of NDPS Act 1985

Introduction

The legislative regulation over narcotic drugs was earlier being exercised under The opium Act 1852, The opium Act 1878 and the Hazardous Drugs Act 1930. Owing to the passage of time and changes in the field of illegal drug trafficking and substance addiction at national and international level, the provisions of these enactments were found to be insufficient.

What is the Narcotic Drugs and Psychotropic Substances Act (NDPS) Act of 1985?

Purpose behind this Act

The punishment under the previous acts was not deterrent enough to meet the challenges of well-organized smuggling gangs. The 1930 Dangerous Drugs Act allows for up to 3 years imprisonment with or without fine and 4 years imprisonment with or without fine for recurring offences.

However, no mandatory penalty was imposed in the past existing rules, as a result of which drug dealers have been let off by nominal punishment. Over the last few years, the nation has been increasingly faced with the issue of drug transit traffic coming mainly from some of our neighboring countries and heading mainly to Western countries.

Past Existing Central laws did not provide for investing the officers of a variety of major Central Compliance agencies, such as Drugs, Customs, Central Excise, etc., with the power to investigate offenses under the said rules.

Since the aforementioned three Core Acts were passed, a large body of narcotics-controlled international law has evolved through numerous international treaties and protocols. The Government of India has been a party to entail treaties and conventions that include numerous commitments that are not protected or only partly covered by the preceding acts.

In view of all the above limitations, need of comprehensive legislation for the regulation of narcotic drugs and psychotropic substances was felt and demanded that penalties for trafficking in particular should be significantly increased, confiscation of properties originating from or used in illegal drug and psychotropic drug trafficking should be ensured, stringent provisions should be made for effective regulation of psychotropic substances and provisions should be made for the enforcement of international conventions on narcotic drugs and psychotropic substances.

As a consequence, the bill was passed in the parliament and therefore the Narcotic Drugs and Psychotropic Substances Act 1985 was enforced.

A comprehensive legislation was necessary to reform and update previous laws relating to narcotic drugs. Accordingly, the parliament adopted the Narcotic Drugs and Psychotropic Substances Bill. It was passed in Lok Sabha on 23rd august 1985 and was enacted on 14th November 1985. The act has been amended 3 times till now in 1988, 2001 and 2014.

The term ‘narcotic’ in the legal sense is quite different from that used in the medical context which denotes a sleep inducing agent. 

Legally, a narcotic drug could be an opiate (a true narcotic), cannabis (a non-narcotic) or cocaine (the very antithesis of a narcotic, since it is a stimulant).

The term ‘psychotropic substance’ denotes mind-altering drugs such as  Lysergic Acid Diethylamide (LSD), Phencyclidine, Amphetamines, Barbiturates, Methaqualone, and designer drugs (MDMA, DMT, etc.). 

Classification of Drugs. 

Cannabis 

Section 2 of the NDPS ACT, explains cannabis (hemp) and is defined as: 

Charas – a separated resin, in whatever form, whether crude or purified; obtained from the cannabis plant, which also includes the concentrated preparation and resin known as hashish oil or liquid hashish; 

Ganja – the flowering or fruiting tops of the cannabis plant, (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; and 

any mixture, with or without any natural material, of any of the above forms of cannabis or any drink prepared therefrom; for example – Bhang. 

‘Cannabis plant’ 

means any plant of the genus Cannabis.

Narcotic Drugs

means coca leaf, cannabis (hemp), opium poppy straw and including all manufactured drugs;

Manufactured Drugs 

Means all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate;

any other narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature, or to a decision, if any, under any International Convention, by notification in the Official Gazette declare to be manufactured drug;

‘Coca’

‘Coca derivative’ means

Crude cocaine, that is, any extract of coca leaf which can be used, directly or indirectly, for the manufacture of coca, Ecgonine and all the derivatives of ecgonine from which it can be recovered. Cocaine, that is, methyl ester of benzoyl-ecgonine and its salts. All preparations contained more than 0.1 percent of cocaine.

‘Coca Leaf’

means:

The leaf of the coca plant except for a leaf from which all ecgonine, cocaine  and any other ecgonine alkaloids have been removed.

Any mixture thereof with or without any neutral material, but does not include any preparation containing not more than 0.1 per cent of cocaine. 

‘Coca Plant’

means the plant of any species of the genus Erythroxylon.

‘Opium’ 

means:

The coagulated juice of the opium poppy, or simply, Any mixture, with or without any neutral material, of the coagulated juice of the opium poppy, but does not include any  preparation  containing  not  more than 0.2 per cent of morphine.

‘Opium derivative’ 

means:

Medicinal opium, that is, opium which has undergone  the processes necessary to adapt for medicinal use in accordance with the requirements of the Indian Pharmacopoeia or any other Pharmacopoeia notified in this behalf  by  the  central government, whether in powdered form or granulated or otherwise or mixed with neutral materials.

Prepared opium, that is, any product of opium obtained by any series of operations designed to transform opium into an extract suitable for smoking and the dross or other residue remaining after opium is smoked.

‘Opium poppy’ 

means:

The plant of the species Papaver somniferum L.

The plant of any other species of Papaver from which opium or any phenanthrene alkaloid can be extracted and which  the  Central  Government  may, by notification in the official gazette, declare to be opium poppy for the purposes of this Act.

‘Poppy straw’ 

means: 

all parts (except the seeds) of the opium poppy after harvesting whether in their original form or cut, crushed or powdered and whether or not juice has been extracted there from.

Salient features of the Act

 It is applicable to the whole of India, to all the Indians outside India and to all persons on ships and aircrafts registered in India.

An addict means a person is highly dependent on any narcotic drug or psychotropic substances.

cannabis (hemp) means ganja, that is cannabis plant flowering or fruiting tops without seeds and leaves when not accompanied by the tops, under whatever name they may be known or designated.

Even though in certain sections of the Act the term Central Government Factories is mentioned, it has not been defined in the Act until now. It is proposed to define Central Government Factories within the definition of Government Company under the Companies Act, so as to allow the Central Government the flexibility to restructure Government Opium.

The central government under the act is authorized to take necessary steps to prevent and counter substance addiction and illegal trafficking.

According to the act, The Central government is also authorized to constitute an advisory committee called 

 

Section 15 to 20 of the act deals with penalties for the offences under the act.

 

Punishment is given for any breach of provision in relation to poppy straw, coca plant, coca leaves, prepared opium, opium poppy, cannabis plant and cannabis, manufactured drugs, psychotropic substances etc.

 

Punishment is also given for illegal import into India or export from India, for violation of orders made under the act, for illegal possession of narcotic drugs or psychotropic substances in small quantities and so on.

 

Offences under this act shall be cognizable means clearly identifiable and non bailable means serious offences.

Author: Mohit Mathur

EditorAdv. Aditya Bhatt & Adv. Chandni Joshi

What is Bail Bond? | Criminal Law

What is Bail Bond?

Introduction

A bail bond is an arrangement made by a convicted suspect to appear for trial or to pay the amount of money set by the judge. The bail bond is co-signed by a bail bondsman, who charges the prisoner a fee in exchange for obtaining the ransom. When someone is charged and booked for a serious crime, they have to wait for a bail hearing. During the hearing, the judge must weigh the charges and circumstances before determining the size of the bond. If the defendant is unable to pay the bail fee, they may either remain in jail until their court date or employ a bail bond agent. The bail bond attorney will charge a percentage of the bail amount as a non-refundable fee and then give bail to the defendant when the bail bond paperwork is done.Provisions for bail in trial court & inherent powers of high court : a webinar brief - iPleaders

The following article deals with the whole process of Bail Bonds and the Role of Bail bond agents with some advantages and disadvantages of this facility provided to the suspects. A remarkable case law issued under the topic of Bail bonds was of Hussainara Khatoon V. State of Bihar, 1979 Where it has been shown that the transgression of justice which might poorly accused little Indian or forced into longer cellular servitude for small offenses because their bail proceedings go beyond their meager means and trials do not begin and even if they never conclude. The Apex court has suggested that instead of money factors, other factors such as family ties, roots in the community, job security, membership for stable organizations etc should determine the grant of bail and in appropriate cases, the accused be released on his personal bond without monetary obligations.

Provisions as to bail bond are provided in chapter 33 of the Criminal Procedure Code, 1973 (hereinafter referred to as Cr.P.C.). Section 440 of the Code clearly states that the amount so fixed by the court should take due regard to the circumstances of the case and should not be excessive. Sessions court and high courts are empowered under this section that they may direct the magistrate or the police officer to reduce the amount of the bail bond. 

Section 441 of the Code provides that the offender so released on bail or on his own bond, needs to sign a bond of such money as the police officer or the court deems necessary for ensuring his presence when at the time mentioned in the bond or until any time as directed by the court. Thus, bond provides for a surety of the presence of the offender to the court when called upon either to answer the charge or otherwise. In case where a minor is required to execute a bond, the police officer or the court in lieu may execute it only by surety or sureties only. Bond can contain conditions. Such conditions need to be mentioned in the bond itself while executing it. 

The court is empowered to commit the person released on bail to jail in two cases: if the surety or sureties are found to be insufficient or afterwards become insufficient; or of the surety or sureties apply before the court for the direction of discharge of either whole bond or any part as related to the applicants. The court, before committing such person to jail may ask him to find sufficient surety to grant him bail again.

When any person is required by any Court or officer to execute a bond with or without sureties, such Court or officer may, except in the case of a bond for good behaviour, permit him to deposit a sum of money or Government promissory notes to such amount as the Court of officer may if in lieu of executing such bond.

The courts have to limit their power where there is only delay in payment to the bail or just because the indemnitor decides not to be responsible for the bail anymore. However, under Section 466 of the Code, the court can forfeit the bail bond on the ground that the condition of production of any property is not fulfilled or if the penalty is not paid without a sufficient cause. Forfeiture here means the retainment of the bond money even after the case is over. In the latter case, if even the surety does not come up for the offender rescue then, the offender may be imprisonment which may extend to 6 months. It also in the discretion of the court to remit any amount of penalty after recording the reasons for doing so and allow the part performance. Further, if the offence for which the offender has furnished security under Sections 106 or 117 or 360 of Cr.P.C. result into conviction of the offender which resultantly breach any condition (such as tampering evidence, commission of any offence, hamper investigation, runs away, commits any act of violence against police) of his bond, the judgement of conviction shall be used against him and his sureties unless the contrary to this proved. Such forfeiture of bond is appealable against as mentioned in Section 449 of the Code. On appellate court has the power to levy such amount due on a bond for appearance before such court.

But what happens after the bond is forfeited? On the event of death of the surety or his becoming insolvent or when any forfeiture is carried out in the above cases, the court shall order such person from whose security was demanded to furnish a fresh security bond failure of which the magistrate of first class may proceed as if there been a default in complying with the original order of bond.

Following any forfeiture of bond in case of any breach of the conditions mentioned in it, result into cancellation of such bond where the alleged offender thereafter cannot seek release on bail on his own bond except when the police officer or the court is of the view that no sufficient cause of failure can arise of the person bound by the bond to comply with its condition. 

Above were the provisions of bail bond but what actually happens after an order is passed in this regard? How to execute a bail bond after the passing of such order? 

The documents required for practical execution are:

  1. Bail application
  2. Id proof of the person executing it
  3. Id proof of the surety giving guarantee for the person
  4. Demand draft or cheque for the sum to be paid for the bond 
  5. Property papers in case a property is being charged for the purpose of furnishing the bail bond and tax return receipts.
  6. Declaration by the surety or sureties 
  7. Letter of undertaking 

The surety has to provide for an application of undertaking of the bail bond for the offender. He is also having to be certified that he is not insolvent and possess enough property to enable and stand surety. Besides he also has to declare as an indemnitor he has the knowledge of the conditions on which the bail bond is executed and that he provides for the surety of fulfilment of the conditions on behalf the offender. Thus, at the police station, after signing the requisite documents and paying the bond money, the execution of bail is completed.

Advantages

It’s easy to see the negatives when you’re involved in the bail bond process, whether you’re the one who needs to get out of jail or you’re the one who’s helping a loved one out. It’s a terrible situation that nobody wants to be in, so it’s pretty hard to see the light of the situation. A few advantages of issuing bail bonds are that most bail bond companies are open on a daily basis, in fact, on a 24-hour basis. As such, one can obtain bail bonds at any time they need them. With bail bonds, only 10% of the bail amount needs to be paid. The rest is going to be the job of bail bondsman to sort out. 

Most of the agents that run bail bond companies are professionals in court cases, prosecution, and bail and bond issues. As such, you will benefit from their vast experience and knowledge. You can pay bail bonds with some kind of payment plan and thus, ease your financial burden when you’ve been arrested. You pay only 10% of the full bail amount, leaving you with 90 percent to save or spend as much as you need. You can pay your small bail bond installments with cash, credit or debit and checks. A secure online payment portal is also available. There is no need to worry about going to the courthouse with a large amount of bail money. You will be assigned a professional and helpful bail agent. They’ll give you advice throughout the entire process and you’ll know exactly what’s going on. Like a lawyer, they want you to get the best result.

Disadvantages

The bail bond system is considered discriminatory by many, even in the legal profession, as it requires low-income defendants to stay in jail or scrap a 10% cash fee and the rest of the bail-in collateral even before they stand trial for any crime. According to a report conducted by prison policy organizations, about 536,000 people are being held in jail because they can’t afford bail or bail bondsman services. At the end of the process, you won’t get the bail bond money. The bondman accepts the 10% premiums as their fees. You can only take advantage of the bail bond company in the state where it is licensed. You may not benefit from this if you are not located within their jurisdiction.

Conclusion

In my opinion, whilst granting bail may also consider the socio-economic factors of the accused flight of the accused may also be taken into account and compassionate attitude towards them, the court may take into account certain conditions prior to granting bail which are the nature of the offense committed by the accused, which are considering, the nature of the offense charged and the apparent likelihood of conviction. It may also include any other factor indicating the relationship of the accused shall be the community or barring the risk of intentional failure to appear, the character and former criminal record of the defendant shall be the determination of the amount of bail in the present case. At the time of bail, the person does not have the right to live outside the jurisdiction of the court, he/she does not have the power to go abroad and in other states without the permission of the court, because you have to appear at the court and police station at any time and you have to pay a fixed deposit in court.

INTERPRETING LEGISLATIVE INTENT THROUGH EXTERNAL AIDS

INTERPRETING LEGISLATIVE INTENT THROUGH EXTERNAL AIDS

Introduction

The procedure by which the judiciary ascertains or determines the purpose of laws or legal provisions is known as interpretation. It is a procedure through which a court attempts to decide the true sense of an expression, verb, or phrase in question in any statute before it, as well as the true intent of the legislature behind that statutory provision.

The judiciary may use a variety of methods or concepts of statutory interpretation, such as finding assistance from internal or external aids to interpretation and applying primary or secondary rules of interpretation that the court has developed over time.

External aid of Interpretation of Statutes | Interpretation of Statutes | Law Guru - YouTube

External Aids of Interpretation

Where existing resources are insufficient, courts must turn to outside resources. They’re extremely useful for interpreting and constructing regulatory provisions. “Where internal aids are not forthcoming, we should still turn to external aids to discover the purpose of the legislation,” O. Chennappa Reddy J. wrote in B. Prabhakar Rao and others v. State of A.P. and others. External assistance isn’t completely ruled out. This is now a well-established constitutional building concept.”

Furthermore, in District Mining Officer and others v. Tata Iron & Steel Co. and others, the Supreme Court stated: “It is also a cardinal principle of construction that external aids be brought in by broadening the concept of context to include not only other enacting provisions of the same statute, but also its preamble, the existing state of law, other statutes in pari materia, and the judicial record.”

Parliamentary History 

If the wordings are ambiguous, the historical setting may be considered in order to arrive at the proper construction, which covers parliamentary history, historical facts, statement of objects and reasons, report of expert committees.

External Aids

Parliamentary History, Historical Facts and Surrounding Circumstances

  1. a) Parliamentary history means the includes conception of an idea, drafting of the bill, the debates made, the amendments proposed, speech made by mover of the bill, etc. Papers placed before the cabinet which took the decision for the introduction of the bill are not relevant since these papers are not placed before the parliament.
  2. b) Historical facts of the statute are the external circumstances in which it was enacted. The object is to understand whether the statute in question was intended to alter the law or leave it where it stood.
  3. c) Statement of objective and reasons provides why the statute is being brought to enactment. It is permissible to refer to it for understanding the background, the antecedent state of affairs, the surrounding circumstances in relation to the statute and the evil which the statute sought to remedy
  4. d) Reports of Commissions including Law Commission or Committees including Parliamentary Committees preceding the introduction of a Bill can also be referred to in the Court as evidence of historical facts or of surrounding circumstances or of mischief or evil intended to be remedied.

Social, Political and Economic Developments and Scientific Inventions

A Statute must be interpreted to include circumstances or situations which were unknown or did not exist at the time of enactment of the statute. Any relevant changes in the social conditions and technology should be given due weightage.

Reference to Other Statutes

For the purpose of interpretation or construction of a statutory provision, courts can refer to or can take help of other statutes. It is also known as statutory aids. For e.g. the General Clauses Act, 1897.

The application of this rule helped to avoid any contradiction between a series of statutes dealing with the same subject as it allows the use of an earlier statute to throw light on the meaning of a phrase used in a later statute in the same context.

Dictionaries

When a word is not defined in the statute itself, it is permissible to refer to dictionaries to find out the general sense in which that word is understood in common parlance. For e.g. Black’s Law Dictionary.

Judicial Decisions

Decisions by courts on the same manner act as precedents for the interpretation of statutes. Indian judicial pronouncements may have binding value when issued by a higher court, and have persuasive value when issued by a court having same or lower authority. These foreign decisions from countries following the same system of jurisprudence have persuasive value only and cannot be used to contradict binding Indian judgements.

Other materials

Courts also refer passages and materials from eminent text books, articles and papers published in journals.

Judicial Precedents

183Rd Report On General Clauses Act, 1897, Page 34 

https://lawcommissionofindia.nic.in/reports/183rpt.pdf

On the basis of the discussion above, we are of the view; (1) in the event of ambiguity of a provision, for the purpose of interpretation of such a statutory provision, courts can certainly take recourse to material or aids outside the statute, i.e., external aids, and (2) the rules of interpretation specially regarding use of external aids, should not be incorporated in the General Clauses Act, 1897 at all.  

In the present matter, the ambiguity with respect to the provision mentioned in under 225B of Schedule II is disregarding the producer to qualify under the ambit of 5%. The mere ambiguity is affecting his rights to trade freely and thereby leading to an ambit of 18%.

In CIT V. Sodra Devi, the court stated that if the language of the statute is unclear and unambiguous,; consequently the historical facts and surrounding circumstances must give way to the clear language of the statute. 

 ‘It is only when the words used are ambiguous that they would stand to be examined and construed in the light of surrounding circumstances and constitutional principle and practice .’

In the present matter, with the ambiguity in the provision, regarding the taxation charges levied in regard to the production of fly ash bricks with less than 90% content there happens to be violation of the right of the producer. The reasonable interpretation that could be inferred regarding the taxation possibility is that the producer should be charged with 5% bracket. 

Indra Sawhney v. Union of India, the interpretation of the expression ‘backward class of citizen’ used in Article 16(4) was in question before the court. The SC under this case referred to the speech given by B.R. Ambedkar to understand the context, background and object behind its use of the given expression. Page 61

That the debates in Constituent Assembly can be relied upon as an aid to interpretation of a constitutional provision is borne out by a series of decisions of this Court. The relevance of these debates is pointed out, emphasising at the same time, the extent to which and the purpose for which they can be referred to). Since the expression “backward” or “backward class of citizens” is not defined in the Act, reference to such debates is permissible to ascertain, at any rate, the context, background and objective behind them. 

In the present matter, the idea behind referring to the agenda item and meetings can  be a decisive mode to interpret the taxation bracket whereby the producer gets to qualified under 5% GST rate. Also, the imposition of 18% GST rate would be a irregular application on the producer. Merely, judging the provision with the term ‘OR’ creates ambiguity and an unfair disadvantage to the producers of fly ash brick. However, to bring clarity the 23rd meeting stated the agenda item i.e. 

‘6(i) the rate of tax on fly ash bricks was rightly proposed to be reduced from 12% to 5%.’

To bring clarity the 31st meeting further strengthened the aspect that referring to the fly ash blocks it also included fly ash bricks levying 5% GST rate.

M/S. Aakavi Spinning Mills (P) Ltd vs The Authority For Clarification …, Page 4, para 11

The Golden Rule of Interpretation is plain meaning of the plain words and only if there is some confusion or ambiguity in such plain words, then the external aids of interpretation like Dictionaries, Scientific materials, Budget Speeches, etc. can be referred by the Courts for interpretation of such words.

Khandelwal Metal & Engineering … vs Union Of India And Others on 11 June, 1985, Page 19

Certain exemption Notifications, referred to earlier, as affording intrinsic evidence to show the contemporaneous understanding of the framers of such Notifications. True, that such understanding is a legitimate aid to interpretation.

In the present matter, the notif no:41/2017  w.e.f  15.11.2017 and notif no:24/2018 w.e.f   01.01.2019, states the application of 5% GST on fly ash bricks. Interpreting the application of such notification and producing intrinsic evidence it states that the producer of fly ash bricks would be classified to pay GST at 5%. 

In Samantha v State of Andhra Pradesh, in interpreting para 5(2) of the 5th Schedule of the Constitution, reports of drafting committee and sub-committees of the Constituent Assembly, the Draft Constitution and changes made thereafter in giving it the final shape were referred by the Supreme Court.

The recommendations of the two Sub-Committees were not considered by the Constituent Assembly in its Session in July, 1947, when the broad principles of the Constitution were settled since, as explained by Dr. Ambedkar, they were received too late. The Drafting Committee however, considered these proposals at the stage of drafting and suitable provisions including Schedule V & VI were included in the Draft Constitu-tion of February, 1948 in which it was indicated that the transfer of land in Scheduled Area From Tribal to non-Tribal was forbidden; and the State Government was also prohibited from allotting the State land in the Scheduled Area to Non-Tribal except in accordance with the Rules which may be made by the Governor after consulting the Tribes Advisory Council. 

In M Ismail Faruqqui v Union of India, Para 102, it was held by the Supreme Court that white paper issued by the Government detailing the facts leading to enactment of a statute is also admissible for understanding the background when the court is called upon to interpret and decide the validity of the statute.

The historical background, as now set out, is drawn from the White Paper on Ayodhya issued by the Government of India in February, 1993. This was the. basis upon which the Bill to bring the said Act upon the statute book was prepared and the Reference was made.

The Supreme Court in S.R. Chaudhuri v. State of Punjab and others, Page 11.

It is a settled position that debates in the Constituent Assembly may be relied upon as an aid to interpret a constitutional provision because it is the function of the Court to find out the intention of the framers of the Constitution. We must remember that a Constitution is not just a document in solemn form, but a living framework for the Government of the people exhibiting a sufficient degree of cohesion and its successful working depends upon the democratic spirit underlying it being respected in letter and in spirit.

Considering the above application of case laws, it can be concluded that the application of 5% GST rate classifies under the appropriate law. The Schedule 225B authenticates the position of the same. Moreover, with the ambiguity in the provision, it can be derived that following the above chronology of external aid, it is well within the ambit to interpret flying ash brick under the category of 5%GST tax Rate.

Conclusion

Interpretation is the process which is employed by the judiciary to ascertain or to determine the meaning of the statutes or legal provision. It is basically a process by which court seeks to ascertain the true meaning of the expression or word or phrase which is in question in any statute before the court and determine the true intention of the legislature behind such statutory provision.

A process of interpretation employed by the judiciary can be done through various tools or principles of statutory interpretation which include seeking help from internal or external aids to interpretation and applying primary or secondary rule of interpretation which has evolved over a period of time by the court.

What are Small and Commercial Quantity of Narcotic Drugs under NDPS Act?

What are Small and Commercial Quantity of Narcotic Drugs under NDPS Act?

What is the Narcotic Drugs and Psychotropic Substances Act (NDPS) Act of 1985?

According to Section 2 of NDPS Act:

‘Commercial quantity’, in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the official gazette.

‘Small quantity’, in relation to Narcotic Drugs and Psychotropic Substances, means  any  quantity lesser than the quantity specified by the central government by notification in the Official Gazette.

Intermediate Quantity: that although the terminology “Intermediate Quantity”, is nowhere defined in the Act in definition part, but the terminology used is “lesser than commercial quantity but greater than small quantity”, when it comes to stipulating the punishment for the offences. 

Offences  under commercial quantities are non-bailable  U/S 37 NDPS Act 1985. However,  if  the court finds that the accused is not guilty of offence or is not likely to indulge in sale/  purchase of narcotic drugs, bail can be granted.

The punishment for many offences  under Sections 1523 of NDPS Act depends on the type and quantity of drugs involved—with three levels of punishments for small, Intermediate Quantity, i.e. quantity more than small and lesser than commercial quantity. 

The punishment prescribed for different quantities is as follows:

Where the contravention involves small quantities, with  rigorous  imprisonment  for  a term which may extend to six months, or with fine which may extend to Rs. 10,000 or with both.

Where the contravention involves quantity lesser than commercial quantity but greater than small quantity,  with rigorous imprisonment for a term which may extend to ten  years and with fine which may extend to Rs. 1,00,000.

Where the contravention involves commercial quantity,  with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years  and shall also be liable to fine which shall not be less than Rs. 1,00,000 but which may extend to Rs. 2,00,000s.

Section 27 of NDPS Act: Punishment for Consumption of Any Narcotic Drug or Psychotropic Substance. 

Whoever, consumes any narcotic drug or psychotropic substance shall be punishable,- 

Where the narcotic drug or psychotropic substance consumed is cocaine, morphine, diacetyl-morphine or any other narcotic drug or any psychotropic substance as may be specified in this behalf by the central government by notification in  the  Official  Gazette, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to Rs. 20,000; or with both.

Where the narcotic drug or psychotropic substance consumed is other than those specified in or under clause (a), with imprisonment for a term which may extend to six months, or with fine which may extend to Rs. 10,000 or with both.

Brief legislative history

Vidhi Centre for Legal Policy issued a report entitled: ‘From Addict to Convict’: Working of the NDPS Act in Punjab’. The Report, which is based on a review of 13,350 cases from Courts trying NDPS cases in Punjab from 2013 to 2015, concludes that the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”) has not deterred drug use or drug trafficking and is in need of reform.

Possession for personal use v/s small quantity

The Report examines the law in relation to ‘small quantity’ and possession of drugs for personal use without appreciating the legislative history of section 27 of the NDPS Act.

The NDPS Act, as it stood in 1985, prescribed a minimum punishment of rigorous imprisonment for 10 years along with a fine of Rs 1 lakh for most offences with the exception of offences involving ganja and the cultivation of the cannabis plant, which attracted punishment upto 5 years imprisonment and fine of upto Rs 50,000.

The other exception was contained in section 27, which prescribed punishment of a maximum term of 6 months/1 year imprisonment (depending on the drug) or fine or both for consumption or illegal possession of any narcotic drug or psychotropic substance in ‘small quantity’, if the drug was proved to have been intended for personal consumption and not for sale or distribution. ‘Small quantity’ meant “such quantity as may be specified by the Central Government by notification in the Official Gazette.” The onus of proving that the drug was intended for personal consumption and not for sale or distribution lay on the accused person.

After the amendment in 1989, the Central Government issued fresh Notifications specifying the ‘small quantity’ of 220 narcotic drugs and psychotropic substances for the purposes of imposing lesser penalty under section 27 of the NDPS Act. The Report contains the recommendations of the Committee constituted by the Ministry of Health and Family Welfare for this purpose.

Though beneficent, section 27 was not used  

In several such cases, it was the Supreme Court that ultimately provided relief to the accused appellant by invoking the provision on small quantities. Despite the possibility of imposing a lesser sentence under section 27 of the NDPS Act, persons caught with small quantities of drugs were still sentenced to 10 years imprisonment and hefty fines, as most of the time; the accused  the person was unable to prove that the drug was meant for personal consumption and not for sale.

In several such cases, it was the Supreme Court that ultimately provided relief to the accused appellant by invoking the provision on small quantity. For instance in Raju v State of Kerala, the Appellant was found with possession of 100 mg heroin worth Rs. 25. The Appellant’s plea that the drug was for personal use was rejected by the lower Courts on the ground that he showed no symptoms of withdrawal while he was in custody and not using heroin. The Supreme Court expressed doubt whether such a small quantity of heroin could have been intended for sale to make profit. Ultimately, the Court invoked section 27 of the NDPS Act and modified the punishment from 10 years imprisonment to 1 year on the basis that the heroin was meant for personal use, even though the same was not ‘proved’.

Another reason why drug users did not invoke the plea of personal use under section 27 of the NDPS Act was that it would amount to an admission of being in possession of drugs and risk certain conviction.

The requirement of ‘admitting’ to illicit drug-possession and ‘proving’ personal use made section 27 of the NDPS Act inaccessible. As a result, a large number of persons including those who use drugs languished in jail without the possibility of bail and/or lenient sentences.

It was in this backdrop that the NDPS (Amendment) Bill, 1998 was introduced and passed in 2001 to introduce graded quantities

It was in this backdrop that the NDPS (Amendment) Bill, 1998 was introduced and passed in 2001 to introduce graded quantities.

Object and import of the 2001 Amendments – far reaching

The NDPS (Amendment) Act of 2001 was a watershed moment, as Parliament, in a rare occasion, acknowledged the harmful consequences of harsh provisions of the NDPS Act and sought to correct course by introducing graded penalties, on the basis of whether the offence involved drugs in ‘small’, ‘intermediate’ or ‘commercial quantity’.

Though the proposed changes were criticized in Parliament for being ‘soft on drug offenders’, Shri Yashwant Sinha, the then Finance Minister who introduced the Amendment Bill, remained firm and saw through its adoption by the House.

The Report however, faults the 2001 Amendment by stating that that it resulted in treating “anyone caught with drugs, whether for self-use or for sale, as a criminal.” This criticism is misplaced.

The NDPS Act has always criminalized consumption and possession of drugs for personal use. Drug users did not become criminals as a result of the NDPS (Amendment) Act, 2001.

Doing away with ‘personal use’, extended protection of the law. The Legislature’s decision to do away with the requirement of proving possession for personal use for imposing lesser punishment and adopting the uniform criteria of ‘small quantity’ offences must be seen in the context of non-application of section 27, discussed above.

The 2001 Amendments were far-reaching in that they extended lenient sentencing  (imprisonment upto 6 months and/or fine of Rs 10,000) and diversion (under sections 39 and 64A) to ‘anyone’ caught with a small amount of drugs, irrespective of whether the drug was meant personal use or sale. This also helped drug users who may be involved in sale or supply of small quantities to peers.

Problem is that quantity alone determines penalty

 The real drawback of the NDPS Amendment Act, 2001 is that quantity was made the sole determinant for the severity of penal measures imposed under the law including   restrictions on bail, pre-trial detention and sentencing. Other factors such as the role and involvement of the accused in the crime – whether he is a mere carrier or controls the illicit trade are rendered irrelevant.  The Report fails to examine this aspect completely.

Bail under NDPS act when small, intermediate and commercial quantities are involved

Union of India v. Shiv Shanker Kesari (2007) 7 SCC 798 

Hon’ble Supreme Court has explained the approach that a Court should adopt in an application for bail under Section 37 of the NDPS ACT:

“The Court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty.

It is for the limited purpose essentially confined to the question of releasing the accused on bail that the Court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds.

But the Court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.

Additionally, the Court has to record a finding that while on bail the accused is not likely to commit any offence and there should also exist some materials to come to such a conclusion.”

Therefore, even in commercial quantity if the courts are satisfied of the reasonable ground for believing that the accused is not guilty of such offences ( Non compliance of mandatory provisions of the NDPS Act i.e. Section 42 or Section 50, disclosure statement of co-accused or accused is not corroborated by any independent incriminating evidence etc) along with the condition that the accused will not likely to commit offence if he was granted bail (keeping into consideration the antecedents of the accused, his propensities and the nature and the manner in which he is alleged to have committed the offence), the courts can grant regular bail even in commercial quantity cases.

Punishment for Offences

The NDPS Act views drug offences very seriously and penalties are stiff. The quantum of sentence and fine varies with the offence. For many offences, the penalty depends on the quantity of drug involved – small quantity, more than small but less than commercial quantity or commercial quantity of drugs. Small and Commercial quantities are notified for each drug.

Under NDPS Act, abetment, criminal conspiracy and even attempts to commit an offence attract the same punishment as the offence itself. Preparation to commit an offence attracts half the penalty. Repeat offences attract one and half times the penalty and in some cases death penalty. Since the penalties under this Act are very stiff, several procedural safeguards have been provided in the Act. Some immunities are also available under the Act. 

The penalties for various offences under the NDPS Act are as follows.

OFFENCES

PENALTIES

SECTIONS OF THE ACT.
Cultivation of opium, cannabis or coca plants without licenseRigorous imprisonment-up to 10 years + fine up to Rs.1 lakhOpium –  18(c) Cannabis – 20 Coca-16
Embezzlement of opium by licensed farmerRigorous imprisonment -10 to 20 years + fine Rs. 1 to 2 lakhs (regardless of the quantity)19
Production, manufacture, possession, sale, purchase, transport, import inter- state, export inter-state or use of narcotic drugs and psychotropic substancesSmall quantity – Rigorous imprisonment up to 6 months or fine up to Rs. 10,000 or both. More than small quantities but less than commercial quantities – Rigorous imprisonment. up to 10 years + fine up to Rs. 1 Lakhs. Commercial quantity – Rigorous imprisonment 10 to 20 years + fine Rs. 1 to 2 LakhsPrepared opium-17 Opium – 18 Cannabis – 20 Manufactured drugs or their preparations-21 Psychotropic substances -22
Import, export or transhipment of narcotic drugs and psychotropic substancesSame as above23
External dealings in NDPS-i.e. engaging in or controlling trade whereby drugs are obtained from outside India and supplied to a person outside IndiaRigorous imprisonment 10 to 20 years + fine of Rs. 1 to 2 lakhs (Regardless of the quantity)24
Knowingly allowing one’s premises to be used for committing an offenceSame as for the offence25
Violations pertaining to controlled substances (precursors)Rigorous imprisonment up to 10 years + fine Rs. 1 to 2 lakhs25A
Financing traffic and harboring offendersRigorous imprisonment 10 to 20 years + fine Rs. 1 to 2 lakhs27A
Attempts, abetment and criminal conspiracySame as for the offenceAttempts-28 Abetment and criminal conspiracy – 29
Preparation to commit an offenceHalf the punishment for the offence30
Repeat offenceOne and half times the punishment for the offence. Death penalty in some cases.31 Death – 31A
Consumption of drugsCocaine, morphine, heroin – Rigorous imprisonment up to 1 year or fine up to Rs. 20,000 or both. Other drugs- Imprisonment up to 6 months or fine up to Rs. 10,000 or both. Addicts volunteering for treatment enjoy immunity from prosecution27 Immunity – 64A
Punishment for violations not elsewhere specifiedImprisonment up to six months or fine or both32

 

SMALL AND COMMERCIAL QUANTITIES

For several offences under the NDPS Act, the punishment depends on whether the quantity of drug involved is small, is more than small but less than commercial or is commercial. Small and Commercial quantities for each drug have been notified.

 

The quantities for some common drugs are as follows

DrugSmall QuantityCommercial Quantity
Amphetamine2 grams50 grams
Buprenorphine1gram20 grams
Charas/HashishCharas/Hashish1 kg
Cocaine2 grams100 grams
Codeine10 grams1 kg
Diazepam20 grams500 grams
Ganja1 kg20 kg
Heroin5 grams250 grams
MDMA0.5 gram10 grams
Methamphetamine2 grams50 grams
Methaqualone20 grams500grams
Morphine5 grams250 grams
Poppy straw1 kg50 kg

 

 

Comparative Analysis of Gambling Act or Laws of Gambling in India

Comparative Analysis of Gambling Act or Laws of Gambling in India

Laws of Gambling in India or The Gambling Act, 1887, applies to the States of Maharashtra and by virtue of the Bombay Reorganization Act, 1960, to Gujarat as well. While prohibiting and penalizing ‘betting or wagering’, the Act, under section 3, exempts from its ambit “wagering or betting upon a horse-race or dog race” and under section 13, “games of mere skill wherever played”.

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Gambling and Betting- a Game of Chance or Skill

  • The main test to determine whether a game amounts to gambling or not is, what dominates/preponderates, whether skill or chance. Games of chance are those where the winner is predominantly determined by luck; the result of the game is entirely uncertain and a person is unable to influence such result by his mental or physical skill. The person indulging in game of chance wins or loses by sheer luck and skill has no role to play. On the other hand, the result of a game of skill is influenced by the expertise, knowledge and training of the player. In India, games of chance fall under the category of gambling, and are generally prohibited, while games of skill, falling outside the ambit of gambling are usually exempted.
  • In RMD Chamarbaugawala v. Union of India, the Apex court relied on the ‘skill test’ to decide whether an activity is gambling or not. The court held that competitions which substantially involve skills are not gambling activities but are commercial activities, protected under Art. 19(1)(g).
  • State of Andhra Pradesh v. K. Satyanarayana & Ors., held that, rummy is preponderantly a game of skill and not of chance. The Court further observed that, “it requires certain amount of skill because the fall of the cards has to be memorised and the building up of rummy requires considerable skill in holding and discarding cards”. The expression ‘mere skill’ means presence of skill of a substantial degree.
  • The Public Gambling Act ceased to be a Central Legislation, such that it was no longer a law applicable to the whole of the territory of India.
  • The following 14 States/Union Territories have passed enactments adopting the Public Gambling Act, 1867 as it is, namely:
  1. Andaman Nicobar 
  2. Arunachal Pradesh 
  3. Chandigarh
  4. Dadra and Nagar Haveli 
  5. Haryana 
  6. Himachal Pradesh 
  7. Lakshadweep 
  8. Punjab 
  9. Madhya Pradesh 
  10. Chhattisgarh 
  11. Manipur 
  12. Mizoram 
  13. Tripura 
  14. Uttarakhand
  • Other States like Andhra Pradesh , Delhi , Gujarat and Maharashtra, Jammu & Kashmir,Meghalaya and Goa among many others have resorted to enacting their own gambling legislations.

Meghalaya The Meghalaya Prevention of Gambling Act, 1970 

 

 

  • The Act, 1970 not only permits “games of mere skill wherever played”, but also those games and sports that it may by notification, exempt from the operation of this Act, provided it is not likely to encourage gambling or otherwise defeat the objects thereof.
  • The government of Meghalaya has used the power available under Section 13(2) to permit the local archery game of ‘teer’.
  • Betting on it is licensed under Section 14A of the Meghalaya Amusement and Betting Tax (Amendment) Act 1982.

 

Rajasthan The Rajasthan Public Gaming Ordinance, 1949 

 

  • The Ordinance, 1949 provides that nothing therein shall be held to apply to any game of mere skill, as distinguished from a game of chance and skill combined, unless it is carried on in common gaming house. Thus, the Rajasthan Ordinance prohibits even games of skill, only if played in a common gaming house. 

 

Goa, Daman and Diu The Goa, Daman and Diu Public Gambling Act, 1976 

 

  • The Act, 1976 aims to “provide for the punishment for public gambling and the keeping of common gaming houses in the Union territory of Goa, Daman and Diu”. However, it is one of the only two State Legislations in operation that permits casinos and other games of chance. 
  • The Goa Legislative Assembly by amending the Act in 1992110 and 1996111 added Section 13A, which allows the State Government to authorise games of “electronic amusement/slot machines in Five Star Hotels” and “such table games and gaming on board in vessels offshore as may be notified”.
  • The 2012 Amendment112, further widened the ambit and regulatory system by amending some of the provisions and also inserting a new range of provisions. The prominent among the new provisions so added are:
  1. Section 13C, enabling the State government to appoint a Gaming Commissioner; 
  2. Section 13D, provides for powers, duties and functions of the Gambling Commissioner; and, 
  3. Section 13L, excludes the jurisdiction of Civil Courts with respect to entertaining any matter arising out of any order, direction, rule issued or framed under the Act.

 

Sikkim 

 

  1. Games of Chance The Sikkim Casinos (Control & Tax) Act, 2002 

The Act, 2002 authorizes the Government of Sikkim to grant licences to businesses and individuals to operate casinos in the State. The Sikkim Regulation of Gambling (Amendment) Act, 2005, grants discretion upon the government to grant licences, authorizing gambling on certain days and making certain gambling houses legal. The Sikkim Casino Games (Control and Tax) Rules, 2007 are made under Section 18 of the Act. The Act and the Rules framed thereunder regulate games of chance played using a machine or instrument in fivestar hotels. In July 2016, the Government of Sikkim, vide a notification, banned its local population from playing in casinos situated in the State

  1. Online Gaming The Sikkim Online Gaming (Regulation) Act, 2008 

The Act, 2008 is the first Indian legislation to expressly permit and regulate online gaming. The Sikkim Online Gaming (Regulation) Rules, 2009 are framed under section 23 of the 2008 Act. Rule 3 of these Rules, read with the Sikkim Online Gaming (Regulation) Amendment Act, 2009, provides that the following games may be operated and played under a licence obtained from the State Government:

  1. Roulette 
  2. Black Jack 
  3. Pontoon 
  4.  Punto Banco 
  5. Bingo 
  6. Casino Brag 
  7.  Poker 
  8. Poker Dice 
  9.  Baccarat 
  10. Chemin-de-for
  11. Backgammon 
  12. Keno 
  13.  Super Pan 9 
  14.  sports betting on games, which involve prediction of the results of the sporting events and placing a bet on the outcome, either in part or in whole, of such sporting event, and including football, cricket, lawn tennis, chess, gold, horse-racing, etc. 5.58 The Government of Sikkim, however, restricted the offering of “online games and sports games” to the physical premises of ‘gaming parlours’ through intranet gaming terminals within the geographical boundaries of the State, by enacting the Sikkim Online Gaming (Regulation) Amendment Act, 2015.
  • Other States like Kerala, Jammu & Kashmir, Bihar, Jharkhand, etc., have enacted their own laws on ‘Betting and Gambling’, following, in a way, the model of the Public Gambling Act, 1867, and prohibiting gambling and keeping of common gaming houses, while making an exception for ‘games of skill’

Kerala High Court Directions to Goverment

  • The kerala High Court has directed the Kerala Government to take an appropriate decision on the aspect of inclusion of online gambling and online betting within the purview of Kerala Gambling Act,1960-a legislation which bans gambling/betting-within a period of two weeks.
  • A division bench comprising Chief Justice S Manikumar and Justice Shaji P Chaly was informed by the Government Pleader that the State Police Chief has submitted a proposal to bring online betting under the Kerala Gaming Act and that the Government was considering the same.
  • The Court was considering a Public Interest Litigation filed by film director Pauly Vadakkan seeking action against web portals promoting online rummy and similar gambling activities. The Court had earlier issued notice to Indian Cricket captain Virat Kohli, actors Tamanna Bhatia and Aju Varghese, who were brand ambassadors for online rummy portals.
  • “Play Games 24*7 Private Ltd” and “Mobile Premier League(MPL)”- two companies running online betting portals- were also made respondents in the petition.
  • Petitioner has submitted that the law relating to gaming in Kerala, is mainly dealt with Kerala Gaming Act, 1960. However, the Act does not extend its power to any gambling, wagering or betting games conducted through online platforms, by using electronic and communication devices. The idea of Games, as envisaged under the Act, exclusively includes those games that are conducted in a ”common gaming house” by using “instruments for gaming” for the purpose of accrual of profit or gain to the person owing, occupying, keeping such instruments of gaming in the enclosed physical promise. Thus, there is always an element of physical premise present in it. Therefore, the online gambling games do not come under this legislation. 
  • According to Mr.Jomy K. Jose, learned counsel for the petitioner, online gambling platforms are engaged in illegal activities and they remain unchecked, owing to deficiencies in the legal infrastructure. Gambling through online platforms is now a growing menace in the State. 
  • These platforms that are even endorsed by celebrities attract their audience with false promise, easily making a fool of unsuspecting people. Primary targets will be middle to low income people who are enticed to make easy money. People fall prey to these fraud platforms only to loose what’s left of their life’s savings. There have been reports of such scams from across the state”, the petition stated.
  • The petitioner highlighted the recent suicide of a Kerala youth after he lost money in online betting. 
  • It was pointed out that the High Courts of Madras and Gujarat have passed directions against online gambling, and states of Andhra Pradesh, Assam and Odisha have brought laws against it.
  • In this connection, the petitioner pointed out that the Kerala Gaming Act 1960- which regulates gambling activities- is inadequate to deal with the challenges posed by online gambling as it does not have provisions covering activities done virtually via electronic devices.
  • Placing on record the submission of the learned Government Pleader, Respondents 1 and 2 (Chief Secretary to Government, State of Kerala and the Secretary to the Government, Information Technology Department) respectively, are directed to take appropriate decision on the aspect of inclusion of online gambling and online betting, within the purview of the Kerala Gaming Act, 1960, within a period of two weeks from today. With the above directions, the writ petition is disposed of.

Gujarat Prevention of Gambling Act, 1887

  • The Gambling Act of Gujarat forbids gambling or being located within illegal venues such as those considered gaming-houses.
  • Organizing gambling or holding a gaming-house risks imprisonment for a minimum of three months for first-time offenders plus a minimum of ₹500 fine, up to one year in prison, and a minimum of ₹2,000 fine for third-time offenders.
  • Persons found gambling or present at an illegal venue risks at least two months in jail and a ₹300 fine for a first-time offense, while a third-time offender risks at least nine months imprisonment and at least ₹300 fine.

Conclusion

Gamblers are often tempted to play for longer durations and up the ante when it appears to them that they are just about to win. This is, quite often than not, a mirage, and over time, this overly optimistic attitude manifests itself as ‘loss chasing’, wherein gamblers keep on playing in an effort to recover their incessantly accruing loss. ‘Loss chasing’ is one of the most important identifier of ‘problem gambling’, and closely resembles drug addiction. Problem gamblers also experience cravings and withdrawal-symptoms when deprived of gambling. That identical view can be adopted even for the State of Gujarat, as the definition of Gambling remains comparable even for the State of Gujarat vis a vis the State of Kerala. Therefore, we strongly believe that a uniform legislation may be implemented all throughout the country in order to avoid policy lapses being advantageously used by the service providers of Gambling Apps. 

LAW OF DETENTION IN INDIA

LAW OF DETENTION IN INDIA

Detention

Detention is defined as the act of reserving a person or property and, ‘illegal detention’ is the unsubstantiated imprisonment or unlawful deprivation of liberty of an individual by arresting for an illegitimate cause or suspicion, along with continuous restraint on one’s personal liberty by detaining such individual in custody.

A Police officer can detain an individual, if he has reasonable doubt or suspicion that a crime has been or will be committed, or if he reasonably believes that an individual may have information regarding the same, the Police officer may then have the liberty of detaining the individual for a short span of time, in order to investigate into the matter. If an individual is ever detained, the authorities are allowed to

  • frisk the person for any weapons,
  • seek information regarding the crime that is believed to occur.

If police officers have probable cause to believe a specific person has committed a crime, he can arrest that person. At that point, he can conduct a complete search for the person for weapons, evidence, and contraband as well as their vehicle if he is or has been near it recently. He can hold that person in jail for 24 hours or until he gets a warrant issued for the charges. If a person is unlawfully detained by the police, the Constitution allows redressal by the  filing of a habeas corpus petition under Article 32 or 226. Traditionally, its sole purpose is to have any person under arrest brought to court. Now, if the person has been unlawfully detained, the court can order his release.

Safeguards under Constitution of India

Article 22 of Indian Constitution broadly deals with the rights of a person who has been arrested or detained. The first two clauses deal with the rights of a person who has been arrested for a crime he has already committed. Other clauses are related to the rights and the procedure for the arrest and detention of persons under preventive detention. Article 22 makes the minimum procedural requirements which must be included in any law enacted by legislature in accordance with which a person is deprived of his personal liberty and thus provides for the protection against illegal arrest and detention.

Clause 1 of Article 22 of Indian Constitution states that a person who has been arrested under normal circumstances (not under preventive detention), has the right to know the charges for which he has been arrested and can be detained further and he can’t be denied off an attorney or a lawyer’s service to represent him in court or to guide him and defend him in the court of law. The concerned authority, like the police or any other government authority, is compelled to tell him this information as soon as possible.

Clause 2 of Article 22 of Indian Constitution states that any person who has been arrested by an authority, must be presented before a magistrate within 24 hours of the arrest. This period of 24 hours doesn’t include the time taken to travel to the court of the magistrate. The person cannot be detained or held in custody for more than twenty four hours. After that, it is with the authority or permission of the magistrate that an agency or government body can extend the period of the detention.

Clause (3) of Article 22 however expressly takes away the safeguards of clauses (1) and (2) of Article 22. It states that:-

(a) This states that the rights mentioned in the first two clauses are not valid for a person who is an “enemy alien”. 

(b) This sub-clause states that the rights mentioned in the first two clauses are not applicable to people who have been arrested or detained on the grounds of preventive detention.

Preventive detention means detention of a person without trial and conviction by a court, but merely on suspicion in the mind of an executive authority. Preventive detention is fundamentally different from imprisonment after trial and conviction in a criminal court. In conviction, an accused is sought to be punished for a past act. The offence has to be proved in the court beyond reasonable doubt. In preventive detention a person is detained without trial in the subjective satisfaction of the executive. 

Clause 4 of Article 22 of Indian Constitution deals with the provisions related to safeguard the misuse of the preventive detention powers of the government agencies. According to this, a person who has been detained under preventive detention, cannot be held for more than 3 months without the recommendation of an advisory board. This advisory board will be formed containing at least three members who are either high court judges or have the qualification to be high court judges. 

Clause 5 of Article 22 of Indian Constitution mentions that an individual detained under any order which refers to preventive detention, may be given the right to know the grounds of detention and allowed to make representation against the said detention, on a time that the government sees fit and must be considered as soon as possible.

Clause 6 of Article 22 of Indian Constitution states that while disclosing the grounds of detention to a person, under clause (5) of Article 22 of Indian Constitution, the government has a right to withhold the specifics or facts which it may consider will harm the public interest. 

Clause 7 of Article 22 describe the powers of parliament that by passing law the parliament can

(a) Define the necessary situations in which a person or class can be detained for more than 3 months, without consulting with the Advisory Board. However, they will need to pass a law for this.

(b) It can decide the maximum period of detention

(c) It can modify or define the procedure which is to be followed by the advisory board.

LANDMARK JUDGEMENTS

D.K Basu V State of West Bengal-

In this case, D.K Basu, the Executive chairman of West Bengal Legal Aid Services wrote to the Chief Justice of India about the deaths occurring in police custody which was treated as a writ petition and thus the Supreme Court issued guidelines that are-

  1. Police personnel should wear accurate, visible and clear identification and name tags with their designations while carrying out interrogation and arrest.
  2. A memo of arrest shall be prepared by an arresting police officer and shall be attested by at least one witness and countersigned by the arrestee.
  3. One friend or relative of the arrestee shall be informed, as soon as practicable, of the arrest and detention at the place in question
  4. Where the next friend or relative of the arrestee lives outside the district then he or she must be notified by the police of the time, place of arrest and venue of custody within 8 to 12 hours of the arrest
  5. Arrestee must be informed of his right as soon as he or she is arrested or detained
  6. An entry must be made in the diary at the place of detention regarding all the particulars like arrest of the person, name of next friend who has been informed and the names of the police officers in whose custody the arrestee is detained.
  7. On request, the arrestee should be examined for injuries at the time of arrest and provided with a copy of the resulting report, signed by both the officer and arrestee.
  8. The arrestee should undergo a medical examination every 48 hours by a doctor from an approved panel
  9. Copies of all documents regarding the arrest are to be sent to the appropriate local Magistrate for his or her records
  10. The arrestee may be permitted to meet with his or her lawyer during interrogation , though not throughout the interrogation
  11. A police control room must be established at all district and State headquarters where information regarding arrest should be received within 12 hours of the arrest and displayed on a conspicuous notice board.

Bhim Singh v. State of Jammu and Kashmir-

In this case, a Member of Legislative Assembly (M.L.A.) of Jammu and Kashmir was detained by the police on the eve of the Assembly sessions. From the facts of the case the Supreme Court came to the conclusion that Bhim Singh was not produced either before the Magistrate on 11th or before the Sub Judge on 13th , though he was arrested in the early hours of 10th of September, 1985. According to Article 22(2) of the Constitution of India, persons arrested or detained “shall be produced before the nearest Magistrate within a period of twenty four hours.” On the given facts the Court found that the conduct of police officers was a gross violation of Bhim Singh’s constitutional rights under Article 21 and 22(2). The above discussion amply establishes the fact that persons who are unlawfully deprived of the personal liberty by the officials are legally entitled to claim compensation or damages from the State.

DETENTION UNDER AFSPA

According to section 4 of Armed forces special Power ACT Any Armed forces personnel can shoot to kill in case of the commission or suspicion of the commission of offences and arrest without a warrant.It is  contrary to the Article 21 and Article 22 which talks about the Right to liberty and protect the people from unnecessary detention. AFSPA,violates human rights, There are so many examples when the oppressive powers given to the armed forces have been misused.

Case Laws

  • In Naga’s People Movement, Of Human… vs Union of India, 1997, many writ petitions were filed which probed the authenticity of the Armed Forces (Special Provisions) Act, 1958 and the Assam Disturbed Areas Act,1955. The petitions were filed upon seeing the injustice faced by the people of the disturbed areas. Based on the report, the inquiry found that the complaints were filed whenever there is a misuse of power but on the other side, many complaints were found false. Thus, it was held that the armed forces must function according to the Do’s and Don’ts while using the special power under this Act.
  • In People’s Union For Human Rights vs. Union of India And Ors, 1991, the question was raised that could armed forces arrest a person, male or female without the involvement of the Police Authority or not. It was held that any person whether male or female can be arrested without the consent of the Police Authority during the time and place of which the act being in force.

DETENTION UNDER UAPA

The section 43 D of the UAPA states that if it is not possible to complete the investigation within the said period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period up to one hundred and eighty days:

The way the UAPA is being used by the current regime shows that we need to repeal the legislation instead of diluting it. In Bhima Koregaon cases in Maharashtra, everyone is being charged as a terrorist, irrespective of whether that person has anything to do with terrorism. In North-East Delhi cases, victims are charged under UAPA when they were raising their voice through peaceful protests in a non-violent manner.

There is no review committee available under UAPA that would filter the cases and allow prosecuting someone. UAPA took the shape of anti-terrorism law without any sunset clause. In making a comparison between the aforementioned legislations, the UAPA is more oppressive compared to POTA and TADA. There are strict bail conditions in the UAPA and chances of bail are rare.

Case law

  • In Angela Harish Sontakke v State of Maharashtra(2016), the Supreme Court granted bail to the accused, notwithstanding section 43-D(5) of UAPA. The Supreme Court followed this precedent in Sagar Tatyaram Gorkhe v State of Maharashtra (2017) wherein the accused had spent four years in jail, and there were over 147 witnesses still unexamined. “The present case is more egregious than those two above-cited instances,” the Justice Ramana-led bench observed on Monday.

DETENTION UNDER PASA

The Section 3 of the prevention of anti social activities act, 1985 states that, 

(1) The State Government may if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary to do so, make an order directing that such person be detained.

(2) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct that the District Magistrate of the Commissioner of Police, may also, if satisfied as provided in sub-section (1), exercise the powers conferred by the said sub-section.

The act provides for preventive detention of habitual offenders Under the PASA Act, habitual offenders can be held in preventive detention on the orders of district magistrate for upto one year. After detaining a person, the authorities have to inform the PASA Advisory Board within three weeks, and the board, headed by a retired high court judge, has to inform the government if the detention is valid or not.

If the board opines that there are no sufficient grounds, the detention order is revoked.

Many times the preventive detention under PASA has been misused and abused by the executive authorities but the judiciary have given certain guidelines and judgement which protect the fundamental rights of the accused.

CASE LAW

  • Thakarsibhai v. State of Gujarat

The Court in lieu of the above judgment held that contention raised by the petitioner cannot sustain as only in the exceptional cases, pre detention matters were maintainable. The Court dismissed the petition considering the fact that only one FIR had been registered against the petitioner and the case of the petitioner is not such that it can be entertained under Article 226 of the Constitution of India and no other exceptional circumstance is carved out to intervene with the principles of the detention.

OTHER IMP CASE LAWS RELATED TO DETENTION

  1. The first Preventive Detention Act was passed after independence in 1950. But this act was questioned on its validity in the case of AK Gopalan v. The State of Madras where it was apparent that freedom of an individual does not qualify as provided under Article 21. The Supreme Court, having taken a limited view of Articles 21 and 22, refused to entertain whether there were any inadequacies in the procedure provided by law. It was of the faith that each constitutional article was autonomous of each other. When the petitioner questioned the validity of his detention on the grounds that it violated his rights pursuant to Articles 19 and 21 of the Indian Constitution, the Supreme Court disregarded all the arguments that the detention could be justified merely on the ground that it was conducted in accordance with the ‘legally established procedure.’
  2. In the case of Maneka Gandhi v. Union Of India, the court considerably broadened the range of the expression ‘personal liberty’ and interpreted it in its broadest extent. The court noted that Article 21 does not exclude Article 19 and that any statute depriving a citizen of personal liberty will have to concurrently stand up to the scrutiny of Article 21 and Article 19.
  3. Justice Chandrachud in the case of Justice K. S. Puttaswamy (Retd.) and Anr. v Union Of India And Ors. established threefold conditions in the case of an infringement of personal liberty of individuals: (i) validity, which presupposes the presence of law; (ii) need, identified as a valid purpose of the State; and (iii) proportionality, which guarantees a fair relationship between the objects and the ways pursued to attain them.

CONCLUSION

The intention of the preventive detention law is to prevent the anti-social elements from causing hindrances in the society which might lead to harmful effects on the lives of citizens, but these laws have to be applied with utmost care and precaution so as to avoid any controversy. These laws directly affect the fundamental rights and freedoms of people who are guaranteed by the primary source of law in India i.e. the Constitution of India and the complexities arising out of the irresponsible implementation of these laws can consume a lot of time of the judiciary and life of the person so detained.

What is Transit Bail? What is Transit Anticipatory Bail?

“Transit Bail” or “Transit Anticipatory Bail”

Recently, words like “Transit Bail” “Transit Anticipatory Bail” have caught the nation’s attention, in the wake of the ‘toolkit’ case. 

Why in news ?

The Bombay High Court last week granted 10 days Transit Anticipatory Bail to Shantanu Muluk whose arrest was sought by the Delhi Police in connection with the toolkit case. Following this, a Mumbai based lawyer, Adv. Nikita Jacob was also granted three weeks transit anticipatory bail in the same case.

Court Grants 7-days To Delhi Police to File Reply To Nikita Jacob | NewsTrack English 1

 

What is bail ? 

the release of a person from legal custody, by undertaking that he shall appear at the time and place designated and submit himself to the jurisdiction and judgement of the court.

What is Bailable and Non-Bailable offence ?

Bailable Offences :Non- Bailable Offences :
Bailable offence means an offence which is shown as bailable in the First Schedule or which is made bailable by any other Law for the time being in forceNon-bailable Offence means any other offence.
Bailable offences are regarded as less grave and less serious.Bailable offences are grave and serious offences, For example- offence of murder.
Under Bailable offences, bail is claimed as a matter of right.Under Non-bailable offences, bail is a matter of discretion

 

 What is an ordinary/ regular bail ?

A ordinary/ regular bail is generally granted to a person who has been arrested or is in police custody. A bail application can be filed before the Court other than High Court of Court of Session for the regular bail under section 437 and High Court and Court of Session have special power regarding the bail under section 439.

What is Anticipatory Bail ? 

Anticipatory bail is granted under section 438 of CrPC either by session court or High Court. An application for the grant of anticipatory bail can be filed by the person who discerns that he may be arrested by the police for a non- bailable offence. For which 

Section 438(1) says, when any person has a reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Sessions Court for a direction under this section. The court may grant the bail if it deems fit.

Section 438(2) says that Bail on Condition can be given if there is compulsory presence for interrogation, no obstruction to justice or leaving the country.

Need of Anticipatory bail arises out of the following reasons : 

  1. To avoid false cases for the purpose of disgracing or for other mala fide intentions by getting the framed/ victims detained.
  2. Where there is likelihood of the accused getting absconded or misusing the rights and liberties etc.

As per section 438 in the Code of Criminal Procedure, 1973 states the Direction for the grant of the bail to any person apprehending arrest.

What is Transit Anticipatory Bail ?

This piece is an attempt to provide a conceptual understanding of these terms ‘transit anticipatory bail’ or ‘transit bail’, which means the same and are used interchangeably.

The Word ‘Transit Bail’ or “Transit Anticipatory Bail’ are neither defined under the code of Criminal Procedure or any other law in force, nor do the find any specific reference under the law of criminal procedure. However, the roots of this concept can be traced under the Cr.P.C.

The reason why these concepts do not have a specific or a single source of provision is mainly because the concept is a “Judge made law”. From time to time, Indian Courts have interpreted the concept by reading between various sections under the criminal law thereby giving a structure to an otherwise uncommon postulation in legal jurisprudence.

 

When to ask for Transit Bail?

 A transit anticipatory bail is sought when a case against a person has been or is likely to be filed in a state different from the one in which he or she is likely to be arrested. So the purpose of a transit bail is to allow the person bail, so they can approach the appropriate court in the state in which the case has been filed for anticipatory bail.

Simply, “Transit Bail” means bail granted by a Court not having jurisdiction over the place where offence was committed.

For Example, A is resident of Gujarat and has an apprehension that a case might get registers against A in Rajasthan. In normal situation, A will have travel to Rajasthan from Gujarat in order to get bail as the Rajasthan Court is empowered to grant bail to A. However, if A is apprehending arrest by Rajasthan Police within Gujarat jurisdiction, he can move to court in Gujarat for seeking anticipatory bail. The local courts grant bail as a limited protection till the time accused approaches the jurisdictional court for bail.

Largely, the purpose of transit anticipatory bail is to grant bail to a person till the time he/she reaches the appropriate court so that in case the police wants to effect the arrest, the person will be released on bail. However, such bail is given at the condition that the accused has to cooperate in the investigation throughout the ongoing investigation process.

Use of Transit Anticipatory Bail

  1. In absence of transit anticipatory bail, the police of some other state can arrest a person from their home town without granting them an opportunity to apply.
  2. The only option left with the person would be to apply for a regular bail and once arrested to be taken into the state where the case is registered.
  3. Largely, the purpose of transit anticipatory bail is to grant bail to a person till the time he/she reaches the appropriate Court so that in case the police want to effect the arrest, the person will be released on bail. However, such bail is given at the condition that the accused has to cooperate in the investigation.

Once the person is arrested, they have to be produced before the magistrate within 24 hours. They are thus produced by the police of the other state (that has registered the case) where the person has been arrested to get the transit remand. It may not be possible to produce the person within 24 hours sometime too.

What is a Transit Remand Order?

In practical terms, ‘Transit Remand Order’ means on order passed by a Judicial Magistrate remanding an arrested person to police custody for the purpose of his transit to another state. By issuing such a ‘Transit Remand Order’, the local magistrate certifies that the police personnel from the outside state had the authority to arrest the person, and such arrest was done legally. Further, the Magistrate authorizes the other-state police to take the arrestee out of home state. 

Statutory Relevance of Transit Anticipatory Bail : Analysing Judicial Principles

Sec. 438 of the Code of Criminal Procedure deals with “direction for grant of bail to person apprehending arrest.” Although the provision directly indicate the grant of transit pre-arrest bail, it provides that when any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that court may, if it thinks fit, direct that in the event of such arrest, he shall be release on bail.  

What courts have said before

While Section 438 does not talk about transit anticipatory bail, courts have in the past granted such bail to those who feared arrest.

For instance, in a 1985 judgment, a two-judge bench of the Bombay High Court considered the question whether Section 438 CrPC can be used by it when the case is filed in some other state.

The court ruled that it “would have jurisdiction if a person is likely to be arrested at a place within the jurisdiction of this court”. It referred to similar decisions given by the Karnataka High Court, the Calcutta High Court and the Delhi High Court.

However, in another 2017 judgment in the Gurugram school murder case, Justice A.S. Gadkari of the Bombay High Court opined that the jurisdiction in such cases rests with criminal courts in the place where the crime was committed and not where the accused lives or in any other part of the country.

Apprehension of Arrest- the key factor

In the recent order of the Bombay High Court (Aurangabad Bench) in the Shantanu Muluk case, the High Court observed “that the apprehension of arrest is the key factor, that is, requires to be consideration in such applications”

What HC Said in Muluk’s Case 

Muluk, a resident of Beed district, Maharashtra, had approached the Bombay HC with an application for anticipatory transit bail, informing the court that a Delhi Police team is already in Beed.

The high court noted that the FIR has been lodged in New Delhi and so any regular application for anticipatory bail under Section 438 of CrPC will be considered by the Delhi High Court. It, however, asserted that the court now needs to consider whether Muluk can be granted transit bail to be able to approach the proper court in Delhi for this purpose.

It then referred to the Bombay High Court’s 1985 verdict, saying it would be applicable in this case.

“The only fact that is required to be considered as to whether the applicant can be granted liberty by way of transit bail to approach to the competent authority for seeking appropriate relief”, the court observed in that case. Even the fact that Delhi Police (which was seeking to arrest the applicant in Maharashtra) was not made a party in the bail application is not a ground to reject the application, the court said.

“It Is submitted that officers from Delhi Police are already in Beed. They will have to take help of local police for any operation to be conducted in the investigation at Beed. Under such circumstances, application cannot be rejected only on ground that the Delhi Police are not party to this application. The purpose of the bail application would itself get frustrated”, the court observed.

Supreme Court Observations 

Although the intervention of the Apex Court in the matters involving the issue of transit anticipatory bail has been limited, the Supreme Court has left the question open as to what will be the exact position while dealing with transit anticipatory bail.

The Supreme Court in the case of Sandeep Sunil kumar Lahoriya Vs. Jawahar Chelaram Bijlani vide order dtd. 14.06.2013 in Special Leave to Appeal (Cri.) No. 4829 of 2013 had the occasion of dealing with a case wherein the accused was granted transit anticipatory bail by the Madhya Pradesh High Court without noticing that the High Court had rejected his anticipatory bail application which was upheld by the Supreme Court.

The case was registered under Sec. 302, 120B and 34 of IPC and sec. 3 and 25 of the Arms Act. The Supreme Court observed in the order dated 14.06.2013.

“The accused appears to have filed an application for anticipatory bail in the nature of transit bail, which in our view has no provision under the Code of Criminal Procedure, 1973.

The court went ahead to observe “It is difficult to comprehend under what provisions and under what authority of law such an application was even registered by the High Court of Madhya Pradesh.”

Thereafter, the court while dealing with the same case after two month vide order dtd. 01.08.2013 observed that:

“The Order passed by the High Court was in regard to a transit bail and the observations made by this Court in the order dtd. 14th June, 2013 were with regard to anticipatory bail and hence the observations made by this Court in the order dtd. 14th June, 2013 or in any other order passed by this Court in these matters, will not prejudice in any way the claim of the respondent No. 1 for either temporary or regular bail before the Trial Court or the High Court which may be decided on its own merits.

We also make it clear that observations in the order passed by this Court on 14th June, 2013 or in any other order in these cases will also not cause any prejudice to the claim of any other accused in this matter for anticipatory or regular bail before the High Court or any other appropriate Court.” 

In the recent case of Shantanu Muluk v State of Maharashtra case, the prosecution had cited the observations of the Supreme Court in the Sandeep Lahoriya case(order dated 14.06.2013) to argue that transit bail application was not maintainable.

However, the Bombay High Court referred to the subsequent order passed by the SC in the Sandeep Lahoriya case(order dated 01.08.2013) and opined that the apex court has left the question of law on transit bail open.

The relevant observation of the High Court are as follows :

“Though the observations of Hon’ble Supreme Court are binding on this Court, here in view of the fact that the matter was adjourned and then Hon’ble Supreme Court while passing further order in the same matter observing that, “we also make it clear that observations in the order passed by this Court on 14th June, 2013 or in any other order in these cases will also not cause any prejudice to the claim of any other accused in this matter for anticipatory or regular bail before the High Court or any other appropriate Court.” ; to my mind, has kept the said point open”

Transit Bail in Serious Offence  

Coming to the question whether transit anticipatory bail application can be granted in serious offences also, let us look at some of the cases where Court dealt with such applications involving serious allegations.

Recently the Delhi High Court in Dr. Sumit Gupta v. State of NCT of Delhi 2021 SCC Online Del 409 granted four weeks transit anticipatory bail to a doctor husband who was apprehending arrest in a case registered against him in Madhya Pradesh under sec. 498A and 34 of IPC along with various provisions of Domestic Violence Act.

The Court granted bail on the ground of his “apprehension of arrest” with a direction that he may not be arrested on his way to reach Bhopal prior to applying for anticipatory bail in the Court of competent jurisdiction.

In another case, the Delhi High Court in Suraj Pal v. Vijay Chauhan 2015 SCC Online Del 10285 observed that while granting transit bail, the nature and gravity of offence has to be taken into consideration.

The Court observed thus “Without considering the nature and gravity of the offence in question, transit bail has been granted for inordinate period of three weeks and not only this, it has been extended by another two weeks. Granting transit bail for such an inordinately long period amounts to virtually granting pre-arrest bail. Impugned orders do not provide any justification for granting transit bail for such a long period. The nature and gravity of the offence has not been considered. The discretion to grant transit bail has been exercised by the learned Additional Sessions Judge in a most inappropriate manner, which needs to be deprecated.”

Therefore what falls from the above mentioned cases is that there cannot be a straight jacket formula while dealing with transit bail applications. More so, when the Apex Court has not yet gone specifically into the question of devising its principles yet. However, the following prepositions can be understood as far as grant of transit bail or transit anticipatory bail is concerned:

 

  1. Core statutory provision concerning grant of transit anticipatory bail is sec. 438 of Cr.P.C
  2. Since the law on transit anticipatory bail is mostly judicially interpreted, High Court observations may differ according to the facts and circumstances of each case. Therefore, there is no straight jacket principle to follow in every case.
  3. While dealing with the applications of transit anticipatory bail, the Courts must take into consideration bona fide grounds to ensure that there is no manipulation of playing with the jurisdictions of the Court.
  4. The Court must keep into mind that the due process of law is not abused while granting transit anticipatory bail.
  5. Apprehension of infringement of personal liberty due to apprehension of arrest is a ground for seeking transit anticipatory bail.
  6. Courts may show variance while dealing with serious and non serious offences while granting transit anticipatory bail. Such bail is purely granted on the discretion of the judge.
  7. Transit bail is granted only for a limited period to enable the accused to approach the court having regular jurisdiction to seek bail.

 

Other Judgements :

In a 1985 judgment, a division bench of the Bombay High Court held in the case N K Nayar and others vs State of Maharashtra(1985) that a court will have jurisdiction to consider an application under Section 438 of the Code of Criminal Procedure if the applicant is apprehending arrest within its jurisdiction.

“…this Court would have jurisdiction if a person is likely to be, arrested at a place within, the jurisdiction of this Court…even if the offences are said to have been committed outside the State of Maharashtra”, the High Court observed.

The Bombay High Court in that case referred to similar views expressed by Karnataka High Court in the case of Dr. L. R. Naidu v. State of Karnataka reported in 1984 Cri LJ 757, and the Calcutta High Court in the case of B. R. Sinha v. State reported in 1982 Cri LJ 61.

In Vijay Latha Jain v. State 2007 SCC Online Del 1723, the Delhi High Court granted transit bail to the petitioner to enable them to have a “recourse to remedy available” to them in the court where the complaint case was registered.

The Bombay High Court recently dealt with applications seeking transit anticipatory bail by corporate director and marketing agent of an aviation institute who were apprehending arrest granted transit bail to them. Offences were registered against the applicants under sec. 420, 406 read with sec. 34 IPC. The Court while accepting their applications ordered that they may approach the court of competent jurisdiction for appropriate reliefs. (Rupesh Naryan Bawiskar v. State of Maharashtra 2019 SCC Online Bom 13012).

Recently, the Karnataka High Court, while granting bail to Republic TV COO Priya Mukherjee in the TRP scam case, observed that when personal liberty is at stake, a person can seek transit bail.

“..when personal liberty of a person is under threat and stake there is an apprehension of arrest, the petitioner can seek relief before the Court invoking Section 438 of Cr.P.C”, the High Court observed in Priya Mukherjee v State of Karnataka.

It also noted that the high court last month granted transit anticipatory bail to ‘Tandav’ director Ali Abbas Zafar, Amazon Prime India head Aparna Purohit, producer Himanshu Mehra and the show’s writer Gaurav Solanki, against whom a case was registered in Lucknow for allegedly hurting religious sentiments through the web series.

Court can examine if the applicant is a bona-fide resident within its jurisdiction:

In Honey Preet Insan v. State 2017 SCC Online Del 10690 (the famous Gurmeet Ram Rahin Singh case), a transit anticipatory bail application was filed by Honey Preet Singh. Preet, ordinarily a resident of Haryana had sought transit bail from a Delhi Court. The Delhi High Court while analyzing sec. 438 Cr.P.C. and transit anticipatory bail denied transit bail to her by laying down the following observation:

“Whenever an application for anticipatory bail is made before a court, where an FIR has been lodged elsewhere i.e. outside the territorial jurisdiction of that court, the court is duty bound to consider whether the applicant is a regular or bona fide resident of a place within the local limits of that Court and is not a camouflage to evade the process of law. If the court is not satisfied on this aspect, the application deserves to be rejected without going into the merits of the case.”

Conclusion

Section 438 is a procedural provision which is concerned with personal liberty of an individual, entitled to the benefit of the presumption of innocent since he is not, on the date of his application for Anticipatory Bail, convicted of the offence in respect of which he seeks bail. Although the power to release on anticipatory bail can be described as of an “extraordinary” character this would not justify the conclusion that the power must be exercised in exceptional cases only. It is not necessary that the accused must make out a special case for the exercise of the power to grant anticipatory bail. Thus this paper dealt with how  A anticipatory bail and regular bail is generally granted to a person who has been arrested or is in police custody. A bail application can be filed before the Court other than High Court of Court of Session for the regular bail under section 437 and High Court and Court of Session have special power regarding the bail under section 439 and Benchmark Judgements and view taken by  Hon’ble High courts and Hon’ble Supreme court.

 

Author:  Dhruvil Kanabar

Editor: Adv. Aditya Bhatt & Adv. Chandni Joshi