Anticipatory bail was granted to all accused in the case of Mahmood Bava V. Central Bureau of Investigation decided on 20-03-2023.
FACTS:
This case involves many accused, who were booked under sections 420, 466, 467 471 read with section 120B of the Indian Penal Code, 1860 and section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988. In this case, M/s. NaftoGaz India Pvt Ltd. secured a loan from a consortium of banks led by SBI. After 27.07.2012 the account of the bank was showing signs of sickness and on 22.11.2012, the account was classified as NPA, and on 03.02.2015, the account was declared fraudulent account. One property as security was found to be in litigation and another property was overvalued. Thereafter, the Loan Company lodged the FIR on 26.06.2019, and none of the accused was taken into custody by CBI. It seemed to the court that each accused cooperated in the investigation and the final report was filed by CBI on 31.12.2021, and after this, special courts issued summons for the appearance of all accused in the court on 07.03.2022. Therefore, apprehending arrest, the appellants moved to the special court with the application of Anticipatory Bail, which was rejected by the said Court and was confirmed by the High Court of Allahabad. Therefore, the Appellants approached Supreme Court.
CONTENTIONS:
Respondent:
Accused no. 2, Shri Mahdoom Bava, is stated to be the promoter/director of the Company and he is alleged to be the kingpin. Accused no. 3, Shri Deepak Gupta is a third party who has allegedly given his personal guarantee. According to the prosecution, he claimed title to the property based on fictitious documents and he sold away some proportions of his property before the mortgage. Accused No. 10 was alleged to have created bogus bills and fake lorry receipts, in connivance with accused No. 2, to enable the Company to have the bills discounted. Accused 14 namely Yatish Sharma was alleged to have operated the account of M/s Shri Radhey Traders. The respondent also contended that the prime accused, no. 2, Mahdoom Bava, is also involved in 11 other cases.
JUDGEMENT:
In this, the judgement was delivered by Justice V. Rama Subramanian by granting SLP, as the criminal appeal arose from the SLPs. The judgement was so delivered and granted anticipatory bail to the accused on the basis that they cooperated through the investigation, and they would do so in future if they were summoned during the trial. The prayer of anticipatory bail was opposed vehemently by the respondent. But the court was of the view that there were three factors which tilted the balance in the favour of the accused. Factor one was that the custody of all accused was not required during the investigation, therefore, it is now hard to digest that custody is now required at this stage. Factor two is that in the case of Shree Deepak Gupta, CBI took the stand before the special court that the presence of the accused during the investigation is not required but it will surely need during the trial. Therefore, the Apex Court considered this as the only presence of all accused is required not the custody during the trial to face the trial. Factor three the Apex Court considered is that the complaint is borne out of records and the primary focus is on documentary evidence, so the court did not understand the arrest of all accused during this time as the offence was committed a decade ago. In the respondent’s contention of 11 cases, appeal arouse from 3 cases and 7 were of 138 of the Negotiable Instruments Act, 1881. The eighth case is filed by an income tax officer for non-payment of the TDS amount. In this case, anticipatory bail was granted by the Court to all accused based on the findings of the Court.
In the case of S. Athilakshmi v. The State of Rep. by the Drugs Inspector reported on 15-03-2023 in the Hon’ble Supreme Court of India. This is a case where criminal proceedings were initiated by the state against a medical practitioner for selling medicines within her house.
FACTS:
S. Athilakshmi (hereinafter Appellant) is a registered medical practitioner working as an Associate Professor and the Head of the Dermatology Department, in the Govt. Omandurar Medical College, Chennai. The appellant was carrying medical practice in her private capacity at premises which is No. 87 Red Hills Road(North), Villivakkam Chennai. She meets and examines her patients. An inspector on 16.03.2016, inspected the aforesaid place and found 18 medicines at the said place. He also found some bills. He obtained the sanction from the office of the Director of Drugs Control, Tamil Nadu, Chennai-06, on 22.09.2016 which was given to him on 23.01.2018. Thereafter he initiated criminal proceedings before the court of X Metropolitan Magistrate, Egmore to hold liable her under section 18(c) punishable with section 27(b)(ii) of the Drugs and Cosmetics Act, 1940. Aggrieved by the proceedings, she applied section 482 of CrPC, 1973 before the High Court of Madras for quashing Criminal proceedings against her. Her petition was dismissed by the LD. Single Judge on 21.06.2022. Aggrieved by this, she filed an SLP(Special Leave Petition) in the Hon’ble Supreme Court.
APPELLANT’S CONTENTIONS:
It was contented by the appellant that she is a registered medical practitioner in dermatology and has an M.D. (DVL) degree in this specialization. She is protected by the law if she was practicing medicines while she was not on her official duty. She has produced the required bills and necessary documents asked by the court to support her side.
RESPONDANT’S CONTENTIONS:
The respondent contended that she had stocked the medicines in her capacity. Therefore, the criminal proceedings shall remain to be continued.
JUDGEMENT:
This case was decided by a two-judge bench, and they set aside the impugned order of the High Court of Madras. The judgment was delivered by Justice Sudhanshu Dhulia as the Court granted the leave and held that since she is a registered medical practitioner and thus protected by law to practice medicines independently. The Court also emphasized the word ‘stocked’ in section 18(c). The Court held that most of the drugs were lotions and ointments in small quantities therefore they can not fall under the ambit of ‘stocked.’ The court said that a small number of drugs can be found in the room or office of a registered medical practitioner. The court also emphasized the timeline of incidents that occurred in this case. “The search was carried out on 16.03.2016 and sanction was sought on 22.09.2016 and it was granted on 23.01.2018” this is the whole timeline from search to granting sanction. The court observed that there is a very wide difference in time. And there is no explanation for this too. The court relied on the case “Hasmukhlal D. Vohra and Anr. V. State of Tamil Nadu.” In this case, criminal proceedings were quashed against the petitioner considering the delay in the proceedings, and the court in his judgment para 25 said that the respondent i.e., the State of Tamil Nadu, has not explained the extraordinary delay of more than four years between the initial site inspection, the show cause notice, and the complaint. This delay prompted Court to infer some sinister motive behind initiating the criminal proceedings. This Court in the case of “Manshukhlal Vithaldas Chauhan v. State of Gujarat”in this case, the court highlighted the importance of prior sanction. In the case of “Mohd. Shabir V. State of Maharashtra” in this case, the court observed that possession simpliciter would not itself be an offense, but the prosecution had to prove the essential under section 27 which was that even a stock of medicine was for sale. By observing that sanctioning authority had not examined at all whether a practicing doctor could be prosecuted under the facts of the case, the Court quashed the Criminal proceedings against the appellant.
“Without freedom of thought, there can be no such thing as wisdom – and no such thing as public liberty without freedom of speech”
By Benjamin Franklin
Introduction
Safeguards of Liberty in India was to protect people who are suffering and aged 16 or above 16 and also who needed it. Liberty Protection Safeguards(LPS) care for those people and treated their mental capacity with the proper agreement. In India basic right of the human being is liberty, the right to live life without fall of dignity.
Every Individual who could have a Liberty Protection Safeguards authorization incorporate those with dementia, mental imbalance, and learning handicaps who come up short on the pertinent limit.
The Liberty Protection Safeguards were presented in the Mental capacity (amendment) Act 2019 and will supplant the Hardship of Liberty Safeguards (DoLS) framework. The Liberty Protection Safeguards will convey further developed results for individuals who are or who should be denied their liberty. The Liberty Protection Safeguards have been intended to put the privileges and wishes of those individuals at the focal point of all dynamics on the hardship of liberty.
The liberty protection safeguards are wanted to come into force in April 2022.[1]
Safeguard Of Liberty
Liberty is the most valuable thing for an individual and viable advances are required for its safeguards. From days of yore, there is a tussle between the state’s power and individuals’ liberties. An individual appreciates more freedoms assuming that the power of the state is abridged. Liberty can’t exist in a domineering state. Prof. Laski calls attention to specific strides for protecting freedom. “Opportunity, right off the bat, won’t be accomplished for the mass of men clear under unique certifications” and it can’t “exist in that frame of mind of honor”. Besides, “extraordinary honor is incongruent with opportunity”. Thirdly, “liberty can’t be acknowledged in that frame of mind in which the privileges of some rely on the joys of others”. Fourthly, “What is the state’s fundamental duty for safeguards liberty”.
Essential elements in Safeguards of Liberty
The democratic form of Government
Democracy system is a type of government where everyone has an offer in the organization. Just democrat; states can give an amiable environment to the turn of events: human character. It is helpful for the full pleasure in liberty.
The Foundation of a majority rule framework is a fundamental shield of freedom. Both liberty and a democratic rules system are valuable to each other. We can’t imagine a majority rules government without the presence of common, financial, political, and individual freedom. Moreover, without even a trace of the right to opportunity, there can be no genuine majority rules government. Liberty is more secure and safer in the Majority rules system than in some other type of government. Popularity-based government is the public authority of individuals though in different types of government (like Outright Government and Fascism) all powers are focused and brought together under the control of one individual or a gathering of people. The individual in power or a gathering of people in power can’t endure his or their analysis. The nature of A majority rules system inverse gatherings is given due regard in Majority rules government. The contrary gatherings structure the public authority after the disappointment of the decision party. Analysis of the public authority is invited in Majority rule government.
Fundamental Rights
There should be a reasonable and unambiguous rundown of essential fundamental rights in the Constitution. Individuals should be conversant with their freedoms and the public authority should know about the limitation of abilities. These freedoms are justiciable and any demonstration that contradicts the arrangements of the Constitution can be announced ultra vires.
One of the vital strategies for safeguarding liberty is to consolidate a sanction of central privileges and opportunities in the constitution of the State. Alongside it, legal insurance ought to be given privileges. They safeguard our freedom to an exceptionally extraordinary degree. These basic freedoms likewise restrict the power of the state. In the presence of crucial freedoms, the state can’t meddle in that frame of mind of individual life. Without a trace of key freedoms freedom of the individual is never out of risk and without freedom improvement of human character is preposterous.
The powers of the public authority ought to be isolated among the chief, law-making body, and legal executive. This will help in forestalling any organ of the public authority. To turn out to be outright. Each organ of the public authority. Will work in its system. As indicated by popular French Researcher Montesquieu, detachment of abilities is a fundamental condition for pleasure in the freedom and the nations where there is the partition of abilities, individuals appreciate more freedom. This interaction is finished through the utilization of balanced governance. Lord Acton believes that “Power taints an; outright power undermines totally.” Power has an internal pattern for abuse and power ought to go about as a check to drive.
Responsible Government
An administration framed by the representatives of individuals will undoubtedly be capable. Any error concerning the public authority will sound its mark of the end and the resistance will exploit it. A bi-party framework with solid resistance will guarantee essential safeguards for liberty.
Love for Liberty
For the security of freedom, individuals ought to have limitless love for freedom. On the off chance that it is thus, individuals might never want to lose their freedom and will be ready to make each penance for its insurance. During the opportunity battle, lakhs of Indians made penances of their lives as they went to gallows and prisons for the fulfilment of opportunity for their homeland.
Rule of law
The idea of Law and order implies all people are equivalent under the watchful eye of law and regulation. This law and Regulation see no difference between the rich and poor, the high and low.
The rule of law is laid out in Britain, the U.S.A. also, and India. The idea of Law and order implies that all individuals are equivalent under the steady gaze of regulation. Regulation makes no separation between rich and poor, the high the low. All individuals ought to be under similar regulations and limited by similar sorts of commitments. Nobody ought to be above regulation. No honours will be given to an individual having a place with a specific class nor will there be any arrangement for insusceptibility. No individual will be rebuffed or saved in care for quite a while until and except if his wrongdoing is demonstrated.
Constitution
Just the constitution limits the power of the state. It sets out specific obstructions and these hindrances are not to be crossed by the state while utilizing its power. For the most part, the constitution is acknowledged as the incomparable law of the nation, and if any organ of the public authority disregards any arrangement of the const., that act is pronounced unlawful by the courts. In brief, every organ of the public authority. Will undoubtedly work inside the structure of the constitution and this way the constitution safeguards the liberties of individuals.
There should be a free and fair judiciary for the assurance and conservation and individual liberty. The judiciary should be free of chief and authoritative control.
The autonomous, strong, and fair-minded legal executive is the greatest defender of freedom. Thus, arrangements ought to be made to keep the legal executive free. Assuming that the Legal executive is subordinate to the Leader or on the other hand on the off chance that it isn’t liberated from the impact of the Chief, it can not grant equity nor can it safeguard the major freedoms of man. In socialist nations or in nations that have Fascism, basic privileges are given to individuals, yet the Legal executive isn’t liberated from the impact of the Chief. In such nations, the safeguards and security of central privileges, constitution, and freedom aren’t exactly imaginable and freedom becomes simply a joke. Here, just keen and fair-minded people ought to be delegated as judges. They ought to be paid significant compensation and adequate annuity after retirement. Their residency ought to be long.
Safeguards the protected liberty of Indian citizens
Right to life and individual freedom
Article 21[2] gives that no individual will be denied his life or individual freedom besides as per technique laid out by regulation.
Habeas Corpus
Habeas Corpus is a writ that is accustomed to bringing an individual who has been kept or detained under the watchful eye of a court. This writ is utilized to safeguard the liberty of a person.
Legal Review
Legal Survey is the force of the legal executive to survey the activities of the leader and authoritative parts of government. This power is utilized to guarantee that the public authority doesn’t abuse the central privileges of residents.
Division of Abilities is a successful protection for individual freedom. The blend of a chief, administrative or legal powers in a similar individual or set of people could bring about the maltreatment of abilities and loss of individual freedom.
Right to constitutional remedies
The Constitution accommodates different cures, for example, writs, orders, and headings that can be utilized by residents to authorize their central freedoms.
The right to speak freely of discourse and articulation is a principal right ensured by the Constitution of India. It permits residents to offer their viewpoints unreservedly unafraid of oversight or discipline.
Right to information
The Right to Information Act, of 2005[3] accommodates admittance to data held by open specialists. This right permits residents to consider public specialists responsible and guarantees straightforwardness in administration.
Right in Safeguard of Liberty
Article 5[4] says that safeguards are for anyone who is being arrested or detained. It is for all the people who suffer and those who are detained those people are sent to judge. Detention can be challenged if it is lawful. Victims get compensation for unlawful detention.
Some Restriction
A.K. Gopalan v. State of Madras[5] it was contended that the ‘procedure established by law’ implied equivalent to ‘due process of law’. Both the terms are equivalent and similar security is being given in both nations with a distinction that ‘due process of law’ covers considerable and procedural regulation yet ‘methodology laid out by regulation’ covers just procedural law.
In Maneka Gandhi v. Union of India[6], Chandrachud J. said that the system must be simple, fair and sensible, not whimsical, abusive, or erratic and Krishna Iyer J. said that the ‘law’ signifies sensible regulation and no established piece.
Landmark Judgment
This idea originally came up on account of A. K. Gopalan v. State of Madras[7]. In this situation, the solicitor was confined under Preventive Detainment Act. He tested this in the court that it be violative of his right to opportunity of development, which is the quintessence of individual freedom under Article 21[8]. The Supreme Court gave the significance of individual freedom in an extremely tight sense. It said that individual freedom incorporates just the actual opportunity of the body like independence from capture or unjust repression. It likewise said that the term ‘law’ is the state-made regulation as it were. The High Court held that Article 19[9] has no association and relevance to Article 21.
On account of Satwant Singh Sahney v. Identification Officer[10], the option to travel abroad is remembered as ‘personal liberty’ and no individual can be denied his entitlement to go besides according to the technique laid out by regulation. Refusal to give the identification of the individual with practically no reasons allotted for it adds up to an unapproved hardship of individual freedom as given under Article 21.
There was another instance of the State of Maharashtra v. Prabhakar Pandurang[11]. In this situation, it was seen that the detainee does not stop being an individual not having key privileges. The right to compose a book and get it distributed by a detenu is his major right and its forswearing without the power of regulation disregarded Article 21.
Conclusion
Every one of the previously mentioned focuses addresses the manners by which we can defend a singular’s liberty. These are just conceivable when every single individual no matter what their situation in the general public no matter what their positions no matter what component can make discrimination attempts to guarantee that freedom as a guideline or element pervasive in the general public isn’t compromised. Freedom is an essential element that guarantees that the Majority rule government in space wins. On the off chance that it falls flat, that Democracy is no Democracy and acts as a joke to freedom all in all.
V.A. Law Offices provides a comprehensive range of legal and compliance services and solutions. They provide legal advice and represent clients in litigation, negotiation, and dispute resolution. Their objective is to provide high-quality legal and commercial assistance through an efficiently managed professional practice that will facilitate their clients’ dealings. They believe in the highest level of integrity and follow the principle of “client first” in providing reliable and highly effective services.
ELIGIBILITY
Students in their 2nd Or 3rd year (3 Years Course) or Students in their 4th/ 5th year (5 Years Course)
PRACTISE AREAS
CIVIL/ CORPORATE/ COMMERCIAL/ CRIMINAL/ FAMILY
PREFERENCE
A candidate from Navi Mumbai would be preferred.
Application Procedure
Interested Candidate may e-mail their CV/ Resume to enquiry@valawoffices.com. The subject line should read “Internship Application.”
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ASA & Partners, Advocates, and Solicitors seek an Associate to work at a West Delhi-based law firm.
Preferable PQE
0 to 2 years in Litigation.
Responsibilities
1. To look after matters listed before the District Courts, Tribunals and High Court of Delhi. 2. Able to appear individually before Courts and Tribunals. 3. Able to Draft pleadings.
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The office of Mr Sri Harsha Peechara, Standing Counsel for the State of Telangana and New Delhi Municipal Council, is looking for one Junior Associate.
PQE
1-2 years
Location
Jangpura
Salary
As per industry standards
Role
The work involves diverse litigation work before NCDRC, NGT and predominantly before High Court and Supreme Court.
Application Procedure
Interested candidates may send their cover letters and curriculum vitae at shpeechara@gmail.com
Deadline
Apply Last date till 05.04.2023.
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