Tag: #lawyers

-Report by Harsh Singh Rajput

In the case of Delhi Development Authority and Govt. of NCT of Delhi vs Batti and others, the respondents in this case i.e., Batti and others filed a writ petition in Delhi high court to claim the compensation of the land which was taken by them 20 years back for the development project and later the two authorities i.e., plaintiffs appeal before SC against the compensation requested by respondents.

FACTS:

Delhi development authority and Govt. of NCT of Delhi appeal before the SC with the Civil Appeal no 2402/2008. Under section 4 of the land acquisition act, 1894(for short ‘the Act’) an order was passed on 23-06-1989 for the acquisition of land measuring about 3,500 hectares for the development of part of Delhi and this order was further followed up by notification under sec 6 of ‘the Act’ on 20 June 1990.

The respondent was the wife of Mange Ram who was the son of the Late Harkesh. The issue was that the late Father-in-law of respondent i.e., Mr. Harkesh was asserted as the owner of the 1/12th share i.e., (01 bighas and 19 biswas and 03 biswansi from the land area measuring upto 23 bights and 2 biswas having khasra no. 281/4(10-11). 282/4(10-3) and 80(2-8)).

Now writ petition was filed by the respondent in 2015. They stated that the other party hasn’t paid them the compensation and also the possession of land hasn’t been taken and the acquisition has lapsed. But the high court stated that the land was handed over to the forest department as per the facts after the possession of the land was taken. And it was taken because the land comes under the ‘O’ zone. And HC also stated the fact that land was also vested in Gaon Sabha. Therefore, the respondent will not be given any compensation and due to the dispute over the titles regarding land, the issue related to compensation was kept open.

The constitution bench stated two conditions to prove the acquisition which are as follows:

1. Taking over the possession of the land or,
2. Payment of compensation

And the bench stated that from the facts, we came to know that the acquisition was done after the land was taken in possession, and due to the dispute in the title, the HC also had kept the question of title open.

The question of acquisition which was holdup by the Delhi high court in this case by relying upon the judgment of this court (SC) in the case of Pune municipal corporate and another’s case ‘supra’ was overruled by relying on the judgment of this court in the Indore Development Authority.

RESPONDENT’S CONTENTION:

Learned counsel on behalf of the respondent provided the facts that respondent no. 1 is the daughter-in-law of later. Harkesh. Harkesh was entitled to compensation as he was the owner of the land as per the records and he also have the Bhoomidari rights. And they submitted that the land was not been taken up also by the authorities.

JUDGEMENT:

The honourable Supreme Court allowed the present appeals of the plaintiff and stated that there will not be any compensation to the predecessor or respondent due to the dispute regarding the title of the land, also the land was found to be recorded in the name of Gaon Sabha.

Also, there were no records of any action or step for seeking compensation on behalf of the respondents and the person who owned the land 20 years ago. So by putting aside the impugned order of HC, the present appeals are allowed and the writ petition of respondents in HC is dismissed.

READ FULL JUDGEMENT: https://bit.ly/3ZdLcPQ

-Report by Harshit Yadav

In this case, four individuals were accused of various offences related to a fraudulent loan obtained by a company called M/s NaftoGaz India Pvt. Ltd. from a consortium of banks led by the State Bank of India. The accused individuals had applied for anticipatory bail, which was rejected by the High Court of Judicature at Allahabad. The Supreme Court heard the appeals challenging the rejection of anticipatory bail and made its decision based on various factors. The main point being made by the Hon’ble supreme court is that there were certain factors that favoured the grant of anticipatory bail to the accused individuals, despite the serious nature of the allegations against them.

FACTS:

The case involves an FIR registered by Corporation Bank alleging offences under Sections 420, 467, 468, 471 read with Section 120B IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. The accused, namely Shri Mahdoom Bava, Shri Deepak Gupta, Shri Akash Gupta, and Shri Yatish Sharma have filed appeals challenging the orders of the High Court of Judicature at Allahabad rejecting their applications for anticipatory bail. The accusations involve the alleged creation of a fraudulent account by M/s NaftoGaz India Pvt. Ltd., which secured certain credit facilities from a consortium of banks led by the State Bank of India. The prosecution alleges that the Company connived and conspired with advocates and valuers hired by the consortium of banks, and therefore the promoters/directors of the Company, the guarantors as well as those involved in the sanction of the loan were guilty of the offences complained. The Supreme Court granted anticipatory bail to the accused based on three factors: (i) CBI did not require the custodial interrogation of the accused during the period of investigation from 29.06.2019 (date of filing of FIR) till 31.12.2021 (date of filing of the final report), (ii) CBI only required the presence of the accused before the Trial Court to face trial, and (iii) all transactions out of which the complaint had arisen, seem to have taken place during the period 2009-2010 to 2012-13.

ISSUES RAISED:

1. Whether the accused persons are entitled to anticipatory bail in the light of serious allegations levelled against them in the FIR filed by the Corporation Bank, under Sections 420, 467, 468, 471 read with Section 120B IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988.
2. Whether the custodial interrogation of the appellants is required, given that the CBI did not require their custodial interrogation during the investigation period, and whether the custody of the appellants is necessary at this stage.
3. Whether the presence of the accused is required before the trial court for trial or not, and whether opposing the anticipatory bail request at this stage is justified in light of the CBI’s stand that only the presence of the accused before the Trial Court is required.
4. Whether the transactions in question took place during the period 2009-2010 to 2012-2013, and whether the accused should be granted anticipatory bail in the absence of any evidence of their involvement in the alleged fraud.

CONTENTIONS:

The appellants, in this case, have challenged the order of the High Court of Judicature at Allahabad, which rejected their application for anticipatory bail. The appellants have argued that they are entitled to anticipatory bail despite the serious allegations levelled against them in the FIR filed by the Corporation Bank. They have contended that the CBI did not require their custodial interrogation during the investigation period, and therefore, their custody is not necessary at this stage. The appellants have also argued that the CBI only required their presence before the trial court for trial, and opposing their anticipatory bail request at this stage is not justified.

On the other hand, the respondents have opposed the appellants’ request for anticipatory bail, arguing that the allegations against them are serious in nature, and their custodial interrogation is necessary to unearth the truth. The respondents have argued that the appellants cannot be granted anticipatory bail merely because the CBI did not require their custody during the investigation period. They have also contended that the presence of the accused before the trial court is not enough, and their custody is necessary to ensure that they do not tamper with the evidence or influence witnesses.

JUDGEMENT:

In this case, several accused individuals have appealed against the rejection of their applications for anticipatory bail by the High Court of Judicature at Allahabad. The First Information Report in the case was registered on 29.06.2019 at the instance of the Corporation Bank, for alleged offences under various sections of the Indian Penal Code and the Prevention of Corruption Act, 1988. The allegations involved a company securing credit facilities from a consortium of banks and committing fraud, with the accused including the company’s promoters/directors, guarantors, and those involved in sanctioning the loan. The CBI completed its investigation and filed a final report on 31.12.2021, with the Special Court issuing a summons for the appearance of the accused on 07.03.2022. The appellants sought anticipatory bail, which was rejected by the Special Court and confirmed by the High Court. However, the Supreme Court found that the CBI did not require the custodial interrogation of the appellants during the investigation period and that the CBI only wanted the presence of the accused before the Trial Court to face trial, which may not be proper grounds to oppose anticipatory bail at this stage. Therefore, the Supreme Court granted anticipatory bail to the appellants.

READ FULL JUDGEMENT: https://bit.ly/3yX4kad

-Report by Sejal Jethva

The parties involved in this case are SUBHASH SOLANKI (Appellant) and DELHI URBAN SHELTER IMPROVEMENT BOARD & ORS. (Respondents). The appellant is allegedly occupying the store illegally and it is claimed that he continued to run his business out of the aforementioned shop after his father passed away and that no one else took over the operation.

FACTS:

The business in dispute was reportedly given to the appellant’s father in 1976 when he was just 14 years old. According to the claim, the appellant was not aware of the terms and circumstances of the allotment at the time of his father’s death in 2009, and as a result, he was unable to submit an application to change the name of the business in question as his father’s legitimate heir. According to the claim, the father of the appellant died away on July 1, 2010, and that day the Delhi Urban Shelter Improvement Board was established.

It is claimed that the appellant kept operating his company out of the aforementioned shop following the death of the father and that no one else took over the operation.

APPELLANTS CONTENTION:

The skilled attorney for the appellant claims that just a possession slip has been given to the appellant’s father in relation to the store in question, and no official allocation letter has been issued in his favour. It is argued that the appellant was unable to request a shop’s modification since he was not aware of the terms and circumstances of the allotment.

The knowledgeable Attorney for the Appellant further asserts that there is no disputing the fact that the Appellant’s father owned the store in question, hence the DUSIB had no difficulty transferring ownership of the shop to the Appellant.

The learned attorney representing the appellant claims that the DUSIB’s policy should be to grant mutation in favour of the legal heirs if there is no dispute regarding who is the initial allottee’s legal heirs so that they can make a living from the store or property that had been allocated to the initial allottee.

RESPONDENTS CONTENTION:

In contrast, Mr. Parvinder Chauhan, knowledgeable Counsel representing the DUSIB, argued that not only had it been established that the original allottee had entered into an agreement to hire or transfer the appellant to the shop in question, but also that the shop had undergone significant unpermitted construction. The knowledgeable attorney for the DUSIB further notes that shop No. 38, which is currently occupied by the appellant, was also discovered to have been amalgamated with shop No. 37, which is obviously against the terms of allotment and the policy under which the shop was initially allotted to the allottee.

The knowledgeable Attorney for DUSIB also asserts that following the death of his father, the appellant never requested a formal allocation of the store in issue from the authorities.

The evidence on file demonstrates that the Appellant was the subject of proceedings under Sections 41/42 of the DUSIB Act, 2010 for eviction from the aforementioned store. Records show that the in-issue store was given on a licensee fee basis and that the sale or purchase of the shop was prohibited under the terms and circumstances.

JUDGEMENT:

1. The appellant in this case currently resides in Shop No.38 Block-4, Dakshinpuri Extn., New Delhi, and his wife Meena Solanki currently resides in Shop No.37 Block-4, Dakshinpuri Extn., New Delhi. According to documents, one Sh. Ram Lal S/o Sh. Giasi Ram was given this business on a licensee fee basis in 1976. The sale or purchase of the shop is prohibited under the terms and conditions. During a study by the DUSIB survey unit, it was discovered that the shop had been sold to the original allottee, that it had been combined with Shop No. 37, and that there had been extensive unlawful development up to five floors and encroachment on departmental land. The store is being illegally occupied by

2. The learned Single Judge declined to overturn the authorities’ contemporaneous conclusions. The following are the briefly listed requirements for allocation:

1. “a) The sole basis for the allocation was a license;
2. The allotment was made for commercial use and not for residential purposes;
3. the allottee(s) do not have any right to transfer, alienate, or in any other way dispose of the allotted shop(s) in favour of a third party;
4. the allottee(s) do not have any right to carry out structural additions or alterations in the premises without prior written permission from the DUSIB; and
5. as a matter of public policy

3. As a result, the appeal is rejected together with any outstanding applications, if any.

READ FULL JUDGEMENT: https://bit.ly/3ZWH881

About Company

MDPH is a leading FMCG company in India which owns household Brands like Zed Black, Manthan, DinDin, Coach, Orva & more. MDPH provides direct employment to over 4,000 people, has a range of 1200+ SKUs, a network of over 3,500 distributors and has invested in 4 manufacturing plants, 36 distribution centres and an overseas office in New York. MDPH exports to 40+ countries.

Zed Black Agarbatti is endorsed by MS Dhoni, Manthan Dhoop is endorsed by Hrithik Roshan and DinDin Confectionery is endorsed by Doraemon.

Position

Legal Executive

Job Description

Legal Executive should be able to do a variety of functions and roles including:

• Knowledge of Trademark, IP, Brand Registration, etc
• Conducting legal research on various legal issues, laws and regulations.
• Drafting legal documents such as contracts, agreements, and legal briefs.
• Review and analyze contracts and agreements to ensure that they comply with legal requirements and are legally binding.
• Assist in the preparation of cases for trial and help lawyers with courtroom procedures.
• Maintain legal files and documents in an organized manner.
• Stay up-to-date with the latest legal developments and changes in legislation to ensure that they provide accurate and relevant advice
• Knowledge of proceedings in Indian Lower Courts and High Court
• Experience in handling duplicacy cases will be appreciated
• Experience in compliance and liaisoning will be an added advantage

Skills / Qualification

The legal Executive job description should include these common skills and qualifications:

• LLB
• Excellent Communication skills
• Good writing skills.
• Respect for confidential information
• Problem-solving skills
• Computer literacy
• Experience with Courtroom proceedings

Location

• MDPH Indore Head Office
• Timing – 9:30 am to 6:30 pm

CLICK HERE TO APPLY

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About AS Law Chambers

AS Law Chambers is a Chamber of First Generation Lawyers having a niche in Litigation & Dispute Resolution with expertise in Real Estate Litigation, Revenue matters at all levels, and Matrimonial Disputes & Arbitration. AS Law Chambers has a wide range of experience in handling litigation in various forums like the High Court, RERA, Revenue Courts, Commercial Courts, NCLT etc.

Position Available

1 Associate & 2 Interns

Skills Required

The Applicant must have an inclination towards litigation with prior experience in drafting and research in multi-disciplinary areas of law. They prefer to offer long-term association so as to cater for the commitment towards work.

Location

Jaipur

Contact No: 7737041889
Email ID: adv.abhilasha153@gmail.com, aslawchambers153@gmail.com

Disclaimer: All information posted by us on Lexpeeps is true to our knowledge. But still, it is suggested that you check and confirm things on your level.

For regular updates on more opportunities, we can catch up at-

WhatsApp Group:

https://chat.whatsapp.com/Iez749mZfpaGfG4x2J6sr9

Telegram:

https://t.me/lexpeeps

LinkedIn:

https://www.linkedin.com/company/lexpeeps-in-lexpeeps-pvt-ltd

Introduction

The advancement in the mode of communication has made human life very easy. Earlier the modes of communication available were very time-consuming and less efficient. In today’s world with the advancement of technology, communication has become very easy and a speedy process. The whole world is now turned into a small village considering the fact that the internet has made access to anyone and anything very simple. Social media is one such platform where people are connected. The term social media is related to computer-based technology facilitating the sharing of ideas, thoughts, and information through various virtual platforms. Social media is internet-based and provides users with the quick electronic communication of content, such as personal information, documents, videos, and photos. More than 4.5 billion people use social media, as of October 2021. Social media has paved the direction of how society thinks. It has become a platform for the dissemination of truth as well as lies. When everything is affected by the social media justice system and judges are no exception to it.

Independence of Judges

Judiciary being the 3^rd organ of the government, it is important that it is independent of any influence from the other two organs of the government or people in general. The term is normative in a sense as it provides what courts and judges ought to possess. The independence of the judiciary is important to save the general public from any unjust treatment. The concept of independence of judges has come from England’s Act of Settlement. Independence of the judiciary is important in a country like India owing to the diversity of the population residing in India. Provisions in judiciary securing the independence of Judiciary:

• Security of tenure. (Art.124(2))
• Salary and allowances.
• Power to punish for its contempt. (Art.129 in Supreme Court, Art.215 in High Court)
• Separation of judiciary from the executive. (Article 50)
• No practice after retirement.

With great powers of the judiciary comes great responsibilities upon the judges.  Indian Judiciary in the Chief Justices’ Conference, 1999 laid down several principles and these were accepted by all the High Courts.  Justice must not only be done but it must also be seen to be done. The working members of the higher judiciary must sustain and reaffirm the people’s faith in the impartiality of the judiciary. Keeping this in mind Judge of the Supreme Court or a High Court, in any capacity whether official or personal capacity, erodes the credibility of the Indian justice system has to be avoided. A Judge should not participate in the election to any office of a Club, society or other association; further, he shall hold elective office only in a society or association which is related to the law. Close association with those who practice in the same court shall be avoided. A Judge should not permit any member of his immediate family if a member of the Bar, to appear before him or even be associated in any manner with a cause to be dealt with by him.

No member of his family, who is a member of the Bar, shall share the same residence with him or use any other facilities provided to judge for professional work. A Judge shall avoid hearing and deciding a matter in which a member of his family, a close relation or a friend is concerned. A Judge shall be extra vigilant while entering into public debate or expressing his views in public on political matters or on matters that are pending or are likely to arise for judicial determination. He must avoid situations where he has to give interviews to the media. A Judge shall not accept gifts or hospitality from anyone other than his family, close relations and friends. A Judge should not engage directly or indirectly in trade or business (Publication of a legal or any activity in the nature of a hobby shall not be construed as trade or business).

A Judge must not engage himself in contributions or raising of any fund for any purpose. A Judge should not seek any extra financial benefit in the form of a privilege because of his office unless it is clearly available. Any doubt arising in this context must be resolved and clarified through the Chief Justice. Every Judge must always keep this thing in mind that they are always subjected to the public gaze owning to this fact they must act or omit in a manner that does not result in depreciating the reputation attached to the occupation. The Preamble of the Bangalore Principles of Judicial Conduct, 2002, laid down the principles that are intended to establish standards for the ethical conduct of judges. These guidelines put forward guidance to judges and regulate judicial conduct. The main aim of the principles is to assist members of the other two organs of the government along with the general public to support the judicial system in India.

Media Trials

Social media has become a platform that does not circulate facts but rather matters that can help them gain TRP. Protracted debates and discussions are held that are merely based on speculation, which hurts the rights of witnesses and the accused. The Freedom of speech and expression that is provided under the Article 19(1)(a) has been misused again and again. The criminal jurisprudence followed in India is based on the theory that any accused cannot be held guilty until his guilt is not proven in a court of law. Social media circulates views that may or may not be true about both the victims and the accused.  

The media does not consider the principle that governs trials in India which is “Guilty beyond reasonable doubt” and “Innocent until proven guilty”. It puts a burden on the trial courts which have the duty to minimize the effects of prejudicial publicity. Continuous remarks from such social media platforms can force judges to take decisions in the favour of the media rather than what is actually demanded in the case. Recently we saw in the Nupur Sharma case the bench comprising Justice Surya Kant and Justice Pardiwala during the hearing of the writ petition being filed made oral remarks which led to many personal attacks on the judges. Sometimes the general public fails to understand the questions asked in the courtroom are conscientiously for fulfilling the requirements of the law. Media can only circulate the words of the judges without knowing the contexts for the same which impacts the private lives of the judges.

Impact of social media

Judges are also normal citizens of the country and like any other citizen of a country they are also free to use social media but they must bear in mind that their active participation requires careful consideration. Judges must comply with the legal and ethical ramifications keeping in mind the nature of their profession. Positive aspect of social media is that it brings closeness, and openness in the society but at the same time any posts of judges are subjected to misrepresentation or misinterpretation of the content posted by them, or even led to cyberbullying and threats to privacy and safety. In 2011, the International Bar Association Legal Policy & Research Unit (IBA LPRU), conducted a global survey to consider the impact of Online Social Networking (OSN) on the legal profession.  

The survey conducted to measure the impact of OSN on the legal profession revealed that judge use of social media raised specific concerns, 40% responded that judges’ use of OSN negatively affected public confidence in the justice system and undermined judicial independence. People have access to the words said by judges by most of them lack the knowledge of the law and they fail to interpret the actual meaning behind the rationale given by judges. Support for judicial use of social media is made apparent by Union Law Minister Ravi Shankar Prasad.

He supports the idea of social media platforms involving in spreading of thoughts, views and knowledge. Judges must be given complete independence to give judgment as to what they decide keeping in mind the rule of law. Media -trials have become commonplace in India. Before a case is decided in a court of law people already have passed their judgment about the matter about which they have no idea. Judges must keep in mind how they are portraying themselves on social media. They must not give any comments regarding the case they are hearing in court. In 2014, IBA’s Legal Policy and Research Unit (LPRU) published its International Principles on Social Media Conduct for the Legal Profession. Pros and cons of the use of social media and guidance regarding judicial conduct and ethics are given in this research.

There is a need to regulate the disclosure of judicial proceedings because those who do not have the knowledge of law forget the fact that law has no space for sentiments. Judgments are passed keeping in mind all the legal aspects and there are meager chances that the judgment can be biased. Criticizing any judgment on legal grounds is acceptable in a democracy but criticizing judges and giving them personal remarks accounts for defamation. Maintaining their oath of allegiance to the Constitution of India, and sustaining the dignity of the office they hold, Judges have to turn deaf to any criticism. In the Global Programme for the Implementation of the Doha Declaration, it was discussed that in order to bridge the gap between a fair comments on any judgment and personal comments on judges there is a need for education, training and recommendations on how social media can affect its users.

Conclusion

Judiciary is a body responsible for adjudicating law. It has the power that provides justice to the victims. For the proper functioning of the judiciary, it is important that it does not have an undue influence on anyone. Its proper functioning is important to maintain harmony in society. Judges are social workers and any judgment passed by them is based on as per the rule established in law and with due deliberations. Their judgments must not be made a tool to attack them personally, as it is against the justice system.

References

1. www.investopedia.com › terms › s “Social Media: Definition, Effects, and List of Top Apps” -…Accessed on 13 September, 2022
2. Data Reportal. “Global Social Media Stats October 2021”Accessed on 13 September, 2022
3. www.royal.uk › act-settlement-0The Act of Settlement | The Royal Family
4. www.barandbench.com › columns › social-media-and-the Social Media and the Judiciary – Bar and Bench

This article is written by Rishita Vekta, B.A.LLB(H) 2nd Year, from Lloyd Law College, Greater Noida U.P.

Introduction

A company is a legal entity formed by a group of individuals to get indulged in business. Companies in order to gain profits and reduce competition from the market often involve in activities like mergers and acquisitions. Mergers and acquisitions are a type of reconstruction that helps in expanding the business. Reconstruction is the building up of a completely new structure or description of which one has only a few parts or only partial evidence. In the case of John Holt Nigeria Ltd & Anor v. Holts African Workers Union & ors, Ademola CJN held that it was lawful for the company to re-organize by way of a reconstruction plan to improve its business and profits. Mergers and acquisitions are terms describing the consolidation of companies or assets through various types of financial transactions. Mergers refer to a process when a larger company or company of similar size merges to form a single unit. Acquisitions happen when a larger company acquires a smaller company.

Mergers and Acquisitions in other words can be stated as a business tactic in which the senior executives of the companies foresee the market strategies of economic growth, market competition, higher revenues, and adhering to higher synergies by merging or acquiring a target company to create a higher share in the market. Microsoft acquisition of Intuit (1994-1995); In 1994, Microsoft proposed a deal that would be the largest acquisition ever made in history. Microsoft saw an opportunity in Intuit’s recurring fees for processing online check-writing transactions. If the deal would have fixed Microsoft would have accounted for 90% of the market. The deal was later called off as the U.S. Justice Dept. of April 1995 sued to stop the deal, stating that the combination could lead to higher prices in the market and less competition. In June 2022, the largest acquisition ever made was the takeover of Mannesmann by Vodafone occurred in 2000. Vodafone, a mobile operator company, acquired Mannesmann, a German-owned industrial conglomerate company.

Mergers and acquisitions are some of the best business restructuring processes that have gained substantial prominence in the present-day corporate world. Virtual mergers and acquisitions have become a trend, especially in Covid period but during Covid lockdown mergers and acquisitions were down by 57% in 2020 as compared to 2019.  The modern world requires creative space for the management of its affairs. Mergers and acquisitions help in getting the required technology and the labor for running that technology.

Types of Mergers and Acquisitions Transactions

• Horizontal- Horizontal merger happens when companies with similar kind of work merge together. This type of merger kills the competition in the market and increases revenue.
• Vertical- Vertical merger takes place between a company and its supporting small businesses. This helps in expanding business by expanding in the early stages but which later leads to reducing the cost of purchasing.
• Conglomerate- It is between companies with a completely different types of businesses. It is usually for diversification reasons. Usually, at the time of off-season or when a certain business is growing through losses, it is important that the businesses must have a certain level of investment in other businesses set up to overcome losses from one side of the business.
• Concentric- When two companies operate in the same business but it is not identical but rather complementary to each other merges.

All these types of mergers have their own significance in the corporate business. All the mergers revolve around the fact that the acquirer company wants to gain profit, eliminate competition from the market, keeping themselves updated with technological advancement.

Forms of Integration

• Statutory- When an acquirer company is much larger than the target company, the acquirer company after acquiring the target company takes all the assets and liabilities of the target company and that company ceases to exist as a separate entity.
• Subsidiary- In this form of integration, the target becomes a subsidiary to the acquirer and also maintains its business.
• Consolidation- In this type of integration, the earlier identity of both the companies ceases to exist and a completely new entity is formed.

The word integration suggests coming together for a cause. Here, companies integrate for meeting their company’s goals and objectives.

Forms of Acquisition

• Stock purchase: The acquirer pays the target entity shareholders cash or shares in exchange for shares of the target company. Shareholders also bear the tax liability.
• Asset purchase: The acquirer purchases the target’s assets and pays the target directly. The acquirer will not assume any of the target’s liabilities.

Mergers and Acquisitions Deal Structure

It is a binding agreement between the parties involved in a merger or acquisition. It states what each party involved is entitled to and what they are obliged to do according to the principles laid down by the agreement. Deal structure is simple terms, talks about the terms and conditions of a merger and acquisition. The deal is made on the basis that the top priorities of both the parties are kept upfront and it is made sure that they are satisfied, along with the risk that each party must bear. Three ways of structuring M&A deals are asset acquisition, stock purchase, and mergers.

Stages in Merger and Acquisition

1. Merger and Acquisition Strategy Process:  The first step is to look at the accelerating business through mergers and acquisitions. The factors involved for the same can be location, raw material, technology, labour, skills etc.  Another most important factor is to arrange finance through loans, cash etc. The third step is to look for a suitable company which can match the expectations lay down by the acquirer company. It is very important to develop a preliminary valuation with the target company.
2. Target Identification Strategies:  In this stage of merger and acquisition, it is important for acquirer companies to have a strong research work setup for target identification. The future course of actions and estimated profits are calculated through customer choices, technological setup, management etc. of both acquirer and the target company before merging or acquiring its business. Before entering into the transactions of merging or acquiring it is very important for an acquirer company to produce a list of target companies, to know the risk involve in such transactions, take advice from the market experts etc.
3. Information Exchange:  When both parties agree to go ahead with the deal the documentation process starts. A binding legal document is formed to carry out the process of mergers and acquisitions. After that, the entities share their company details with each other to know about the position of both the companies.
4. Valuation and Synergies: Both the parties wish to strike a deal where they can earn profits. Agreement is reached between the parties only when both the parties feel that the offer is reasonable. Buyer tries to assess the situation by keeping in mind the perks of the target company which won’t be possible without the merger and acquisition.
5. Offer and Negotiation: At this stage, an offer is given to the shareholders of the target company. Both the parties try to negotiate the prices to strike a deal that can be beneficial to both of them.
6. Due Diligence:  Due diligence includes a review of the target entity including products, customer base, financial books, human resources etc. The objective is to ensure that information is correct based on which the offer was made. In case of any wrong information, revision is done to justify the actual information.
7. Purchase Agreement: At this stage of Mergers and Acquisitions a draft of the agreement is outlined about the cash and stock to be given to target shareholders. It also includes the date and time of the payment.
8. Deal closure and integration: After the purchase agreement, both the parties close the deal by signing the document and the acquirer company acquires the target company. The management staff of both companies works together to act as a single identity.

Each and every step of mergers and acquisitions is important and requires various skill sets, research, time, and resources to fulfil. Any mistake regarding any of these steps might result in huge losses. The merger of America Online and Time Warner is one of the biggest failures in the history of mergers and acquisitions. The managers behind this deal failed to analyze the dynamics of new media landscape and got rushed into getting a new media platform. Thus, the company reported a loss of US$ 99billion- which is one of the largest annual net loss ever reported.

Advantages of Merger and Acquisition

• The common goal of mergers and acquisitions is to create synergies with the mutual perks of the single entity thus formed, which won’t be possible if the companies would have worked separately.
• It provides higher revenues and strong market powers by merging and acquiring a company with upgraded capabilities without having to take the risk of developing the same internally.
• When a company acquires a completely different business it helps it in diversification of cash flows and avoidance of losses during a slowdown in their industry.
• Start-ups usually have skills and knowledge but they lack resources to expand their innovation. M&A provides these start-ups a way to reach out to companies with financial stability and these start-ups will provide human resources to the companies.

Disadvantages of Merger and Acquisition

• Mergers and acquisitions eliminate or reduce the competition in the market. This increases profit for the acquirer company but at the same time, it leads to a substantial increase in prices. The company can now increase its prices thus acquiring the monopoly power in the market. The consumers will not be left with many choices rather than to purchase those products at high prices.
• Merger and acquisition lead to job losses owing to the fact that the acquirer company has its own working staff and thus it takes few people in employment from the target company who are highly skilled. Thus, underperforming staff’s jobs are taken away.
• When the size of an acquirer company increases, the situation might lead to the loss in the same degree of control that earlier prevailed. Workers might lose interest in their work.
• Any mistake in the valuation of the whole process might lead to huge losses.

Laws Governing M&A in India

In India, the process of mergers and acquisitions are court driven and requires the sanction of National Company Law Tribunal. Other than court-based M&A, the legislative reforms have introduced short-form mergers that can be carried out privately without invoking the domain of the courts. On the regulatory front, SEBI has been active in making and implementing regulations governing takeovers.

Companies Act, 2013

Mergers & Acquisitions are governed under the Section 230-240 of Chapter XV of the Companies Act, 2013. It lays down various steps and procedures to be followed during mergers and acquisitions. It regulates and prohibits anti-competitive agreements.

Conclusion

Mergers and acquisitions bring out the idea of extracting the best out of everything. They lead to innovation and growth in various fields. The laws regarding mergers and acquisitions are made in a way to regulate competition and fluctuations in money flows. Mergers and acquisitions have given the corporate world different perspectives looking into business objectives. 

References

1. Wild C. and Weinstein S. (2009) Smith and Keenan’s Company Law; Pearson Education Ltd, 14^th Ed.
2. Aina K.O.; Company Law and Business Associations 1, Law 534, National Open University of Nigeria.
3. Companies Act 2013, Act of Parliament,2013(India).

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This article is written by Rishita Vekta, B.A.LL.B (2^nd Year) student from Lloyd Law College, Greater Noida U.P.

Every individual irrespective of occupation, age, community, gender, caste, race, or religion, is a consumer. Consumer rights and protection are the structural part of the life of every person and we all have made use of them at some point in our day-to-day life. The consumer is the genuine deciding agent for all economic activities. It is now globally accepted that the expanse of consumer protection is the true measure of the level of progress in a nation. This article is an attempt to examine, analyse and review consumer protection in India.

Introduction

The concept of consumer protection is as old as human civilisation. Protecting the buyers’ interests is among the prime considerations of the business. Mahatma Gandhi’s political ethics said that the consumer is allowing the entrepreneurs to serve him and he is the subsequent purpose of the business; we can even go to the extent of saying that according to certain studies of some Indian traditions, consumer/customer is equivalent to God but the profit motive of the marketers and dealers is resulting in consumer exploitation through deceitful and immoral market practices. Consumer protection is a socio-economic day-to-day activity that is to be carried out by government and businesses with the prime objective of protecting the interest of consumers and their fair satisfaction. The duty to protect the consumer interests and rights is the responsibility of the government through constructing policies and laws. Consumer Protection Act 1986 is considered a turning point in the history of India for consumer rights. This Act inspects the background and evaluation of the Consumer Protection Act over a while.

Who are consumers?

A person who purchases goods and services is called a consumer. Consumer rights generally refer to laws that give power to consumers against exploitation and misconduct, misinformation, and misguiding by producers and sellers and force them of goods; to protect the interests of consumers.

The Rights of consumers

The essential rights of consumers that are striving to be upgraded and protected are:

1. The protection against the marketing of goods and services which are hazardous to life and property.

2. To notify the customers about the quality, quantity, potency, purity, standard, and price of goods, or services against unfair practices.

3. The right to be guaranteed and retrieve a variety of goods and services at competitive prices.

4. The right to be informed and to be assured that consumers’ welfare will receive due deliberation at relevant forums.

5. The right to pursue amends against biased trade practices or prohibited trade practices or unethical exploitation of consumers.

6. Consumer education rights.

Changing Phase of consumer protection since ancient India

The theory of consumer protection against prejudiced and biased malfunction practices safeguarding the interests of consumers was a part of Indian tradition and management for centuries in ancient times. It can be seen in ancient Indian Dharmasastras like Manu Smriti, the Yajnavalkya Smriti, the Brihaspati Smriti etc., illustrated the living standards of the people of that period and were grounds on the dharma to be abided at that period. Manu Smriti was one of the persuasive and authoritative scripts that treated various consumer affairs. During the Mughal period (Mediaeval period) who ruled India, like Alauddin Khilji, Sher Shah Suri and Akbar, etc., thought about protecting consumer rights and they enacted strict laws for the same. They introduced weights and measured the standardisation process. The British Rule, also called modern India, combine the previous customs and cultures with a unified nationwide system that had similarities with the laws already enacted in Britain. Britishers introduce Acts like the Indian Penal Code, 1860, the Carriers Act, 1865 Law of Tort, The Indian Contract Act, 1872, Sales of Goods Act 1930, and the Agricultural Product (Grading and Marketing) Act 1937. After Independence, many laws were passed in India for shielding innocent customers from unfair and restrictive trade practices. The Acts that were enacted and protected the whole of the Republic of India are: the Drugs Control Act 1950, the Industry’s Development And Regulations Act 1951, The Drugs And Magic Remedies Objectionable Advertisements Act 1954, The Prevention Of Food Adulteration Act 1954, The Essential Commodities At 1955, The Trade And Merchandise Marks At 1958, The Monopolies And Restrictive Trade Practises At 1969, The Cigarettes Regulation Of Production, Distribution And Supply At 1975, The Standards Of Weights And Measures Act 1976, The Prevention Of Black Marketing And Maintenance Of Supplies Of Essential Commodities At 1980, The Standards Of Weights And Measures Enforcement Act 1985, The Bureau Of Indian Standards Act 1986.

There was a need for a focused and strong law to ensure better protection of the interests of consumers and to save them from unfair trade practices and for this The Consumer Protection Act 1986 was enacted by the Indian Government. The motive is to make provision for the organization of consumer councils and other dominance for the arrangement of consumer disputes and matters connected therewith.

Landmark Judgements

The State Commission of Andhra Pradesh in the case of Narasamma v. LIC of India¹ on 20 March, 2018 decided that the widow of the insured is also a consumer and is entitled to benefits.

Morgan Stanley Mutual Funds versus Karthik Das², the court held that the person who has applied for shares cannot be called a consumer till the time the shares are allotted to him.

V. N. Shrikant v. Anita Sena Fernandes³, it was decided that in cases of medical irresponsibility, there is no strait waistcoat formula to decide when the consumer’s source of action arose. In the face of such trauma and pain, the applicant has been inadequate to come up with a clear statement for why she has not contacted her doctor for the past 9 years. The applicant’s actual claim for reimbursement is sabotaged by her tranquility. As an effect, the contested order was altered, and the applicant’s complaint was dispersed.

Springs Meadows Hospitals v. Harmony Ahluwalia⁴, The National Consumer Disputes Redressal Commission held that since the incumbent doctor and nurse were staff of the hospital, both were liable and reimbursed ₹12.51 Lakh to the child and ₹5 Lakh to the parents for genuine psychological trauma.

In the ultramodern times, the desires and beliefs of the consumer have advanced in the wake of rising knowledge and proliferation and thus the protection of the rights of consumers is foremost. The Consumer Protection act 1986 almost a three-decade-old act was replaced by a new Consumer Protection Act, 2019.

The difference between the Act of 1986 and 2019:

Consumer Protection Act 1986 – This Act was narrower in scope it covers only six types of Unfair/ Deceptive Trade Practices. There were no provisions for product liability, unfair contacts, alternative dispute resolution mechanisms, and E-commerce and direct selling. The role of the Central Protection Councils was to promote and protect the rights of Consumers. There were different committees prescribed for the selection of members in consumer dispute Redressal Commissions.

Consumer Protection Act 2019 – This Act is broader in scope it adds more than 3 new unfair trade practices and contains the provisions of Product Liability, unfair contacts, E-commerce, direct selling, and mediation/ alternative dispute resolution. The regulator by the name of the Central Consumer Protection Authority shall be established. The Central government has the power to appoint the members. This act has advisory bodies for the promotion and protection of Consumer rights. A person failing to comply with the orders of the commission can face imprisonment up to three years or a fine not less than Rs 25000 which may extend to Rs one lakh or both.

Conclusion

The Consumer Protection Act simply says that there should not be any restraint or bar to the rights of the customers. While explaining, it is simplified in such a way that the rights of the customers are safeguarded against the unfair trade practices in the market. Consumers should always be conscious of their rights. In some cases, Supreme Court asked the Commission to be broad-minded when constructing the law and take a sensible view of consumer rights. It’s good that the Consumer Protection Act of 2019 was sanctioned contemplating all the ongoing events but still, there is a need for genuine execution of the act. Still, many consumers in our country don’t know much about their legal rights and have a conception that the court work is time taking as a result of which they are in doubt to file the case. The Government of India should try to upskill the consumers on their legitimate rights and should also clarify the case filing structure.

Citations

¹ (1992) CPJ 128 (NC).

² 1994 SCC (4) 225, JT 1994 (3) 654.

³ [SC/0868/2010].

⁴ 1998(2) SCALE 456 (SC).

This article is written by Ashmita Dhumas, who has done her BA LLB from Agra College and is currently doing a diploma in Corporate Law from Enhelion.

INTRODUCTION

Money laundering seriously jeopardises nations’ financial systems as well as their integrity and sovereignty. The international community has taken some actions to eliminate these threats. It has been thought that we urgently need comprehensive legislation to stop money laundering and related activities. The Prevention of Money-laundering Bill, 1998 was introduced in Parliament to accomplish this goal. The Standing Committee on Finance received the bill and reported it to the Lok Sabha on March 4, 1999. The Standing Committee’s recommendations were broadly accepted by the Central Government, and they were included in the aforementioned Bill along with some other desired adjustments. The Prevention of Money Laundering Act, 2002 was passed by parliament on January 17, 2003, but it has yet to be implemented in its entirety.

The term “money laundering” refers to the process of cleaning or hiding the source of money that was obtained illegally. Money laundering, according to the law, is the process of processing money obtained illegally through a legitimate business or sending it to a foreign bank so that when it returns, no one will be able to tell that it was obtained illegally. Money earned through illegal activities like extortion, drug trafficking, the supply of firearms, organised crime, etc. is cleaned during the money laundering process. It typically involves three steps. A criminal first enters the formal financial system with the stolen funds (Placement). Second, to prevent the origin or original identity of the crime money from being lost or disappearing, the money that has been injected into the financial system is layered or spread out across several transactions with the financial system (Layering). Thirdly, the money is incorporated into the financial system in such a way that the initial connection to the crime is completely lost, and the criminal and his accomplices can use the money because they receive it as clean money (Integration).

Additionally, the offence of money laundering includes:

● The greater proportion of investment goes back into illegal activity.

● The overall transactional cost of engaging in money laundering is significantly lower

● There is a greater pressing need to use clean liquidity to finance such reinvestment.

● Larger disparities between expected real returns from illegal and legal activity.

● The initial volume of illegal income that needs to be cleaned up is greater.

HIGHLIGHTS OF THE PREVENTION OF MONEY LAUNDERING ACT, 2002

Section 3 of the PMLA says whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with proceeds of crime and projecting it as untainted property shall be guilty of the offence of money laundering. The penalties for the offences listed in Paragraph 2 of Part A of the Act are outlined in Section 4 of the Act. The relevant Act sections have granted the Director of the Financial Intelligence Unit (FIU-IND) and Director (Enforcement) exclusive and concurrent powers to carry out the Act’s provisions.

The creation of a special court with the status of a session court for the prosecution of offenders under Section 4 of the act is discussed in Section 43 (1) of the act. The special courts are authorised by Section 43(2) of the Act to try offences other than those listed in Subsection (1), which the accused may be charged with under the Code of Criminal Procedure, 1973, at the same trial. Section 44 addresses offences that can be tried in specialised courts.

CHALLENGES

The PMLA has undergone numerous amendments (in the years 2015, 2018, and 2019) designed to close the gaps in how it operates. However, the following clarifications of persistent legal ambiguities are provided:

● The 2019 Revision clarified how “proceeds of crime” are defined in section 2 (1)(u). According to the law, “proceeds of crime comprise property not only deducted or acquired from the listed offence but also any property which may directly or laterally be deducted or acquired as a result of any felonious exertion related to the listed 2 offence.” The requirement for an “explanation” to define what is meant by “proceeds of crime” still raises the question of whether or not it will have a retroactive impact.

● From a list of six statutes at the beginning, the PMLA currently includes “scheduled offences’ ‘ from thirty more statutes. There is a growing concern that adding less serious offences could undermine PMLA’s core purpose. The ED filed 1067 cases using the PMLA between 2012 and 2018. Only 13 people had been found guilty under the PMLA in 9 cases as of December 2019. These numbers demonstrate the need to simplify the statute’s implementation and give major offences more attention.

● All actions under Sections 50 (2) and 50 (3) are presumed to be “judicial processes” under Section 50 (4) of the PMLA, as defined by Sections 193 and 228 of the Indian Penal Code. Since ED proceedings are now considered “judicial proceedings,” any statement made prior to ED may be used as support. The general norm stated in Section 25 of the Substantiation Act, which states that confessional remarks made to a police officer are not acceptable as substantiation in a court of law, is not supported by this, nevertheless.

● Section 71 provides an overriding effect to PMLA, nevertheless, it is important to remember that the Supreme Court stated in Tofan Singh’s decision that special legislation must include respectable protection concerning the admissibility of confessional remarks The authority of these specialised investigating organisations that focus on economic crimes has been contested by nearly 200 applicants. Since 2014, the earliest petitions have been pending.

EFFECTIVENESS

Money laundering is regarded as essential to the efficient running of global and organised crime. However, money laundering has an impact on the social, political, and fiscal health of a nation. One of the profitable outcomes of money laundering was the undermining of the legal private sector, another was the undermining of fiscal label integrity, a third was the loss of control over profitable policy, a fourth was profitable deformation and insecurity, a fifth was the loss of profit, a sixth was the traps of privatisation sweats, and a seventh was a threat to one’s reputation.

The PMLA has been made severe enough to address the threat of money laundering that results from contaminated wealth acquired via illegitimate means, notwithstanding some obstacles and legal difficulties. Many organisations, including the RBI, SEBI, banks, and others, have been enlisted to spread information about these illicit practices. The power granted to the police by the PML Act is another matter that needs to be addressed. This Act provides a check on the power of the police, just like numerous other pieces of Indian legislation. Sections 44(b) and 45(1)(A) of the PML Act categorically subordinate the role of police officers by granting the powers to make complaints and to investigate offences under this Act to the authorities designated by the Central Government, much like a confession made to a police officer or while in the custody of a police officer has no value in the eyes of the law and it cannot be proven against the accused (Sections 25 and 26 of the Indian Evidence Act, 1872, respectively).

In a case moving before the top court, the AG stated that 4,850 cases have been filed under the PMLA, 2002 since this act’s introduction. The strong framework for risk-based selection of the cases for investigation in India accounts for the country’s low case registration rate. The Directorate of Enforcement is concentrating its attention on cases involving high-value proceeds of crime and cases involving serious predicate offences involving terror financing, narcotics, corruption, an offence involving national security, etc. It is pertinent to note that the FATF recommendation does not stipulate a threshold for the selection of cases for investigation under the PMLA.

CASE LAWS

● Nikesh Talwar Shah vs. Union of India¹ – The issue of giving bail to persons who were denied bail by the court in accordance with Section 45 of the PMLA, 2002, was addressed in this case. The petitioner in this instance filed a writ petition because his fundamental right had been violated. When someone was arrested and subsequently applies for bail, the court follows a twin-condition policy for granting bail, which is discriminatory in nature. However, when someone has applied for anticipatory bail—bail before a trial has even begun—the court grants them bail. In this case, the Supreme Court overturned the discrimination and asked that the applicant re-apply for bail in the same court.

● ED vs. A. Raja² – The 2G fraud case is the infamous name for this situation. With the opening up of the investment market in 1991, numerous private sectors stepped up to facilitate and make investments in the market. To ensure effective regulation, the government established a number of acts and directives. However, the CBI accused a few employees of using a shortcut when registering their telecommunications-related enterprises. A. Raja, who served as the department’s minister at the time, was also charged with violating the Prevention of Money Laundering Act of 2002 by accepting bribes and distributing a letter of intent to a number of private companies for the purpose of granting these companies licences for unified access services. However, the court did not find them guilty, and it ordered each of the defendants to pay Rs. 5 lacs along with a surety.

CONCLUSION

Therefore, it is evident that efforts to combat money laundering have advanced beyond the early stages of crimes related to drugs or terrorism. Additionally, the fight against money laundering has continually pushed for the broadest possible scope of predicate offences to be included in domestic laws. Money laundering has been defined and understood in a more comprehensive way that no longer only requires the projection of funds and the use of clean assets. According to the international mission, every activity that has anything to do with the proceeds of crime should be made illegal.

CITATIONS

1. W.P. (Cr) 67 of 2017

2. ECIR/31/DZ/2010

This article is written by Sanskar Garg, a last-year student at the School of Law, Devi Ahilya University, Indore.

INTRODUCTION

DNA (deoxyribonucleic corrosive) is the most essential hereditary material tracked down in the body cells of every single person. It decides the way of behaving, human and body character of a person. It is fundamentally a heredity material in people that no two individuals (other than indistinguishable twins) share.

CONCEPT OF DNA TEST

DNA profiling is not another term for Indian Criminal Investigation, however unquestionably of course less one. DNA tests are permissible in Indian courts and throughout the time it has been created to a decent degree of precision. DNA (Deoxyribonucleic corrosive), otherwise called the structure block or hereditary outline of life, was first depicted by the researchers Francis H. C. Kink and James D. Watson in 1953. The example of the mixtures that comprise the DNA of a singular living being decides the improvement of that person. DNA is similar in each cell throughout a singular body, whether it is a skin cell, sperm cell, or platelet.

Except for indistinguishable twins, no two people have a similar DNA outline. DNA examination, or DNA profiling, looks at DNA found in actual proof like blood, hair, and semen, and decides if it very well may be matched to DNA taken from explicit people. DNA examination has turned into a typical type of proof in criminal preliminaries. It is likewise utilized in common suits, especially in cases including the assurance of Paternity of Identity by the Supreme Court of the United States in Maryland v King. The approach of DNA innovation is one of the main logical headways of our time. The maximum capacity for utilization of hereditary markers in medication and science is as yet being investigated, yet the utility of DNA distinguishing proof in the law enforcement framework is as of now undisputed. Starting from the principal utilization of scientific DNA examination to get an attacker and killer, the courts have recognized that DNA testing has an unparalleled capacity to both, excuse the wrongly sentenced and to distinguish the blameworthy. It can essentially further develop both the law enforcement framework and police examination rehearses.

DNA TECHNOLOGY IN THE ADMINISTRATION OF JUSTICE

DNA innovation has been utilized in both Civil and Criminal matters. While validating proof and Disaster Victim Identification expected in Criminal cases, DNA innovation has been utilized. DNA can likewise be utilized to recognize hoodlums with staggering precision where natural proof is required. In Civil issues, DNA innovation is utilized to decide the hereditary, blood connection, support of a kid, and family relationship. DNA for the most part works or is utilized in two ways to tackle violations. At the point when a suspect is distinguished and his example or DNA will be contrasted and the proof got from the crime scene, this correlation makes it simple to decide if the suspect had carried out the wrongdoing or not. Another case comes, where the suspect has not been distinguished and the organic proof got from the crime scene would be contrasted and the guilty parties’ profiles in DNA data sets which assist in recognizing the wrongdoer.

In criminal matters, DNA profiling has not just assisted in breaking cold cases and connecting violations with lawbreakers yet additionally supports the ID of casualties generally speaking. As a rule, the casualties are being killed with an overall viewpoint of concealing the personality of the lawbreaker and because of durable examination methods, it becomes hard to interface recuperated body stays with the person in question.

In such circumstances, DNA profiling ends up being a curse. It likewise aids in further demonstrating the culpability or blamelessness of the denounced yet treating the DNA proof might lead the case in a misguided course because of which courts are left with no other choice but to give the advantage of the uncertainty to the charged. An amazing occurrence for this was Santosh Kumar Singh v State through CBI, otherwise called the Priyadarshini Mattoo case.

The altering of proof alongside the terrible examination was the greatest obstacle looked at by the arraignment in the preliminary. The cherry on top was that the DNA test demonstrated assault however again that was being altered during the examination which makes an advantage of uncertain circumstances for the blamed person. Regardless of many confirmations inclining toward the prosecution, the trial court vindicated the charged individual expressing that CBI had bombed on a few counts specifically disguising from the court that the confirmations gathered by it, were manufactured for the denounced. Likewise, an appropriate system for leading the DNA test denies the court a valuable chance to judicially audit it.

DNA AND FAIR TRAIL

DNA is one of the most remarkable examination apparatuses with a special case of indistinguishable twins which implies that the DNA of every individual contrasts from one another and no two individuals exist having a similar DNA. DNA has excellent evidential worth. On the off chance that any DNA proof has been gathered from the crime location, it lays out an immediate connection with the guilty party and can wipe out the different suspects from doubt. For instance, during an assault, natural proof like semen, blood, skin cells, body hair, and so on, can be left at the crime location or the victim’s body. The organic proof got from the crime location would be contrasted with the wrongdoers’ profiles in DNA data sets which assist in distinguishing the guilty party. This is the way DNA innovation help in a fair preliminary in rape cases as well as in cases connected with hijacking, aggressive behavior at home, murder, and DNA innovation assist Civil courts with settling the question matters of common cases.

The compelling DNA as an evidential apparatus helps in looking at and dissecting the disposal of suspects having legitimate admittance to the crime scene at the hour of the wrongdoing. At the point when DNA has been received from the crime scene, it can begin taking out the suspects approaching the crime scene yet their DNA isn’t coordinated with the organic proof gathered from the place and that is the way this DNA innovation helps in a fair preliminary by segregating the blameless individuals who were available at the crime location however not having any connection with the wrongdoing.

TOLERABILITY OF DNA PROOF IN PATERNITY QUESTION CASES

In India, at first, judges took a moderate view concerning the evidential worth of DNA innovation in settling the maternity and paternity question cases. The Indian legal executive frequently deals with issues in responding to an inquiry for example while concluding fatherly obligations, the natural rate ought to be given need over the friendly rate. DNA rate testing can give proof that shows that an individual has a blood connection or natural association with a departed individual or can assist an individual with involvement in the suit.

Section 112 of the Indian Evidence Act, 1872 says that assuming a kid was brought into the world during the continuation of a substantial marriage between his mom and any man or on the other hand on the off chance that a youngster was brought into the world inside a time of 280 days after the disintegration of marriage and the mother stays unmarried during that period, it is the convincing verification that the kid is a genuine offspring of that man, until and except if the man shows that he had no admittance to the mother of a kid during the concerned period. Presently, DNA testing can be utilized to decide the paternity of the youngster and can without much of a stretch supplant this segment, as DNA testing can undoubtedly sort out the authenticity of that kid. Be that as it may, DNA testing decides the natural rate, as opposed to the social rate.

HINDRANCES TO THE EXECUTION OF DNA TECHNOLOGY

Assuming one examines the plenty of cases over utilization of DNA proof one can be guaranteed that there are a few misgivings about the manners by which such touchy information can be utilized in the Indian situation. This carries us to examine the central issues which have hindered the execution of the utilization of the innovation as well as the impending DNA Bill. A portion of the hindrances in execution have been expressed underneath.

First is the autonomy of the scientific organizations, which, most importantly, is depicted under the policing and the particular Home Department. Without having sufficient autonomy, there are higher possibilities of proof altering and misusing. Furthermore, the measuring labs don’t have the labor required or in any event, working infrastructure. Many specialists are expected for legitimate examination, individuals for conveying the advancement between the specialists, and in particular, between the criminological wing and the police. Thirdly, the police and the research officials must be completely prepared for taking care of the crime scene and gathering the proof. Right now inferable from an ill-advised or even absence of essential preparation required, individuals sent at the crime location obliterate the crucial confirmations which might have demonstrated so assuming it had been gathered by an authority prepared, as the person in question would have applied the fundamental information with ability and diligence. Lastly, and above all, India needs a devoted regulation that can legitimize the utilization of DNA proof for examinations, and the equivalent will not be exclusively left for the court to decide. Detailed regulation is probably going to cure all the previously mentioned limitations.

Notwithstanding the previously mentioned viewpoints, there lie more prominent difficulties because of which the courts also are reluctant to involve scientific proof in a criminal examination. Some of them, as indicated by the courts are amateurish direct of actual proof, including ill-advised assortment, or not gathering the proof, protecting the proof, no upkeep of chain of authority, as well as careless and postponed dispatch of actual proof for logical investigation. Different reasons incorporate not sending a charged person for medico-lawful assessment, non-lifting of fingerprints by the researching official (IO), or when the bloodstained human item had been sent for synthetic assessment without covering a similar following the capture of something similar. The courts are normally constrained to dismiss the report. There are additionally specialized lacunas that lead to altering of the proof like the postponed review of shows, non-notice of blood bunch in serologist’s report, ill-advised tests, and so forth.

LIMITATIONS OF DNA PROFILING

The presentation of DNA profiling has represented a few serious difficulties to the legitimate privileges of an individual, for example, the Right to Privacy and Right against self-implication which is the reason its been declined as proof by the Courts in some cases. Additionally, the acceptability of the DNA proof under the watchful eye of the court generally relies upon its exact and legitimate assortment, safeguarding, and documentation which can fulfill the court that the proof which has been placed in front of it is solid.

There is no particular regulation present in India that can give specific rules to the examining organizations and the court, and the method to be embraced in the cases including DNA as its proof. Nonetheless, a few arrangements permit the assessment of an individual blamed for assault by a clinical expert and the clinical assessment of the assault casualty separately yet the tolerability of these confirmations has stayed far-fetched as the assessment of the Supreme Court and different High Courts in different choices stayed clashing.

Judges don’t prevent the logical exactness and decisiveness from getting DNA testing, yet at times they don’t concede these confirmations on the ground of legitimate or established restriction and now and again the public strategy. The Patna high court, in Rajiv Singh v. The State of Bihar alluded to OJ Simpson case and noticed the potential mistakes at different stages engaged with DNA technique and noticed:

One of the enduring impacts of the OJ Simpson case will probably be a more noteworthy examination by safeguard attorneys of the arraignment’s scientific DNA proof introduced in criminal cases. In the Simpson case, the protection, put the wrongdoing research facility being investigated.

There is no significant question about the basic logical standards in DNA profiling, be that as it may, the ampleness of research facility systems and the skill of the specialists who affirm ought to stay open to request. Although there is a typical agreement among established researchers that DNA profiling can yield results with an extremely high likelihood, the complicated technique of DNA profiling isn’t without issues. At each period of the seven-step methodology recently portrayed, botches and an ill-advised treatment of the DNA test can deliver misleading outcomes which at times can prompt lifelong incarceration or even capital punishment judgment.

Subsequently, the ampleness of lab methods and the capability of the specialists who affirm ought to stay open to request. The assortment of organic proof remains part of the most extreme significance in the scientific examination. The controls or pollution of tests whether volunteer or carelessly may vitiate the master report.

CONCLUSION

It may very well be securely presumed that the Supreme Court is yet to think with point-by-point knowledge about the sacred legitimacy of different measurable devices for uncovering reality during examination even though there have been many cases whose conviction and guiltlessness depended on the DNA proof. To make the innovation of DNA profiling more dependable, the authorities and court need to concoct specific rules or regulations so there will be lesser messed-up examinations as are the possibilities of the unnatural birth cycle of equity.

This article is written by Arpita Kaushal of UILS, PUSSGRC , HOSHIARPUR.

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CITATIONS

1. Khyati Jain, ‘Challenges and concerns in Admission of DNA evidence in India: With special reference to DNA Technology (Use and Application) Regulation Bill, 2019’ (SCC Online Blog, 6 April 2022), https://www.scconline.com/blog/post/2022/04/06/challenges-and-concerns-in-admission-of-dna-evidence-in-india/ ( last accessed on 27 June, 2022 ).
2. Maryland v King 133 S.Ct. 1958 (2013).
3. Santosh Kumar Singh v State, (2010) 9 SCC 747.
4. V.R. Dinkar,  Forensic Scientific Evidence: Problems and Pitfalls in India, 3 International Journal of Forensic Science & Pathology, 79, 80 (2015).
5. Rajiv Singh v. The State of Bihar,( 2010) 9 SCC 747.
6. People of the State of California v. Orenthal James Simpson, 28 Loy. U. Chi. L. J. 461 (1997).

This article is written by Arpita Kaushal, a student of UILS, PUSSGRC , HOSHIARPUR.