Tag: #MadrasHighCourt

-Report by Harshit Gupta

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. 

READ FULL JUDGEMENT: https://bit.ly/40D35cm

-Report by Atharva Dixit

The judgement relates to a writ petition filed by Smt. Kowsalya runs the Sankar Social Justice Trust in memory of her husband who was killed in an incident of honor killing. The trust works for achieving a caste discrimination-free society. They planned a meeting to be held for the dissemination of information against honor killing and the promotion of inter-caste marriage but the permission for the same was rejected by The Deputy Superintendent of Police, Udulamaipet Sub Division, Tiruppur District. She filed a petition in front of the Madras High Court to issue a writ of Certiorarified Mandamus, to quash the order of DSP as illegal.

Facts :

The petitioner belongs to Most Backward Community and she married Sankar, who belonged to Scheduled Caste. On account of this inter-caste marriage, caste fanatics killed Sankar. On the second death anniversary of Sankar, the petitioner started this trust for promoting casteless society. She submitted a representation dated 15.02.2023 seeking permission to conduct a meeting in honour of the deceased Sankar and promote inter-caste marriage. However, that representation was rejected by the DSP citing the possibility of a law and order issue. The respondent’s counsel also admitted that the brother of Sankar and 500 villagers opposed this meeting.

Petitioner’s Contention :

Learned counsel for the petitioner submitted that the petitioner is the founder of Sankar Social Justice Trust. She belongs to Most Backward Community and she married Sankar, who belonged to Scheduled Caste. On Account of this inter-caste marriage, caste fanatics assaulted Sankar with deadly weapons on 13.03.2016 at the instigation of her parents and he was killed. On the second death anniversary of Sankar, the petitioner started this trust for creating awareness of inter-caste marriage and for promoting the same in society in order to achieve a casteless society. She submitted a representation dated 15.02.2023 seeking permission to conduct the 7th memorial meeting in honour of the deceased Sankar and promote inter-caste marriage. However, that representation was rejected by the respondent in the proceedings.

Respondent’s Contention :

Learned Government Advocate (Crl. side) opposed this petition on the ground that, if the proposed meeting is permitted, there is a possibility of a law and order issue coming up. There is a ban against meetings and other assemblies passed under Section 30(2) of TN City Police Act, 1888 from 01.03.2023 to 15.03.2023. He further submitted that the brother of the deceased and more than 550 villagers are opposing this meeting. Thus, stating the aforesaid grounds, he prayed in front of the court to dismiss the petition.

Judgement :

The Honorable Justice G. Chandrasekharan expressed concern over incidents of honour killing while holding that no authority can prohibit or prevent any meeting being held against such problems, he held that; “The offence of honour killing takes place every now and then. It is not as though there is no honour killing taking place in Tamil Nadu and it is totally eradicated. It is not in dispute that the petitioner is a victim to honour killing, that her husband was murdered for the reason that he belongs to Scheduled Caste and the petitioner belongs to Most Backward Caste. Now, the scope of starting Sankar Social Justice Trust and organizing a present meeting is to disseminate information against honour killing and also to promote inter-caste marriage. It is a laudable object and we cannot prevent/prohibit the meeting to be organized by Sankar Social Justice Trust on 12.03.2023 at 5 P.M. at the venue nearby Kumaralingam Bus Stop, for the above said reasons.” Accordingly, the Writ Petition was disposed of.

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

–Report by Rhea Mistry

In C. Soman v. Secretary of Hindu Religious and Charitable Department and others, Mr. C. Soman filed the petition under Article 226 of the constitution stating to issue a ‘writ of mandamus’ asserting that the respondents shall not permit Non-Hindu entry in the temples.

The petitioner brought to court’s notice an invitation sent to a minister who is a Christian for conducting the Kumbabishegam festival. The petitioner is of the opinion that during this festival a Non-Hindu should not be permitted to enter the temple as this is a Hindu festival, celebrated in the Arulmighu Adikesava Perumal Thirukovil at Thiruvattar which is in Kanyakumari District.

In the order, the court said:

“In our considered opinion, when a public festival like the Kumababishegam of a temple is performed, it will be impossible for the authorities to check the religious identity of every devotee for the purpose of permitting his entry into the temple. That apart, if a person belonging to another religion, has faith in a particular Hindu deity, that cannot be prevented nor can his entry into a temple be prohibited. It is common knowledge that the devotional songs of Dr.K.J.Yesudas, a Christian by birth, rendered on various Hindu Gods are played without any demur in temples. In fact, in Nagore Dargah and Vailankanni Church, scores of Hindus worship.”

The Madras High Court said that the authorities can’t check whether the person is a Hindu and who is not a Hindu as an ample of people visit to attend the Hindu festival Kumbabishegam. The court also claimed that if a Christian has faith and belief in the Hindu religion and adheres to the religion, then they cannot be prohibited to enter the temple.

The court stated that if a person who is not a Hindu has faith in any religion and adheres to it, they cannot to stopped to enter and offering their prayers. It is not in the court matter to identify the faith of the people in the religion. It will hurt the sentiments of the people if the court starts determining the faith in the religion and restricting Non-Hindus entry into the temple.

In this case, the court on 4th July 2022, passed the judgment that any person who is a Non- Hindu cannot be restricted entry into the Hindu Temple if they believe and have faith in the deity. The court decided to take a “parochial view” and prefers to approach it from a broader perspective. The Hon’ble Madras High Court dismissed this writ petition for reason that it “being devoid of merits” with no charges or costs.

-Report by Rhea Mistry

The Madras High Court recently in K. Kumarodass vs. The Principal Secretary to Government, remanded the police for corruption. Mr. K Kumaradoss, the petitioner is a retired Special Sub Inspector of Police. He was first admitted as GR-II Police Constable in the year 1977 and later promoted to the level of Special Sub Inspector of police. The special Sub Inspector was permitted to retire from his service in the year 2010. During the service of Mr. K Kumaradoass in the police, a memo was charged against him alleging that he had collected a Mamool of Rs 50/- twice in a week from Mr. Ravi who was running a bunk shop not far away from a TUSMAC shop. The memo that was charged against Mr. K Kumaradoss stated that he was alleged for misconduct. The materials, list of documents, and the statement of the witnesses proved the same.

Considering the evidence and the statements of the witnesses, the court had appointed an inquiry officer to investigate the matter. The accused was allowed to be a part of the inquiry process. The inquiry officer made a report after the cross-examination of the witnesses and the documents, stating that the allegation stands true. The Disciplinary Authority instituted a punishment of reduction in his time scale pay by three stages for three years and said that the period of reduction shall function to delay three years’ worth of future increases. Mr. K Kumaradoss went for an appeal which was rejected and so he filed a writ petition challenging the order of his punishment of reduction of time scale pay.

This writ petition is against

• The Principal Secretary of Government,
• The Director of Police
• The Commissioner of Police
• The Dy. Commissioner of Police

Contentions by the Petitioner

The learned counsel of the petitioner presented that the petitioner, Mr. K Kumaradoss has a record of 35 years’ service without any bad record, or a mark made upon him. He has been very devoted and ethical to his service. The allegation made against him is false and a proper inquiry was not conducted as there was no bunk shop close to the TUSMAC shop as stated. The petitioner’s counsel also advanced the circular issued on 25th May 2010 by the Director-General of the Police that any punishments can be seamlessly integrated out when the officer is still on duty and service preventing the imposition of sanctions that will be impossible or difficult to carry out in future. And the punishment implemented on the writ petitioner was not during his service, but it was imposed at the furthermost point in his retirement, so such punishment cannot be imposed on the petitioner.

The writ petition prayed that the order of his punishment is quashed and he is promoted to the position of SSI effective from April 9th, 2010, with all services and retirement benefits.

Contentions by the Respondents

The respondents learned special government counsel argued the contentions of the writ petitioner. Respondents stated that the punishment imposed on the petitioner was during the period of his full-time service and not during the furthermost point in his retirement. And so, the circular relied upon does not apply to this punishment.

Another statement the learned special government counsel made is that the allegation raised against the petitioner is a corruption charge and is a serious crime made by the officer. It is serious and the same should be taken seriously. The counsel had cross-examined the witnesses and the reports submitted by the inquiring officer, they presented that the charges were proved and true that the petitioner was taking a Mamool of Rs 50/- twice a week from Mr. Ravi. According to the reports and cross-examination, the order of the punishment was implemented, so the writ petition of the petitioner is to be rejected.

RATIO DECIDENDI

During the deposition, various facts and truths have come forward. The complainant, Mr. Ravi, the owner of the bunk shop confessed that he is regularly paying Mamool to the constables twice a week. The petitioner too confessed that he is collecting Mamool from him. Mr. Ravi also revealed that he was threatened by the petitioner and had to pay Rs. 100/- as Mamool to him when asked by him. Another witness Mr. Thiru Mani agreed that the constables are collecting Mamool regularly. A Police Officer also deposed about the collection of Mamool by the constables. The report submitted by the inquiry officer held that the materials presented were true to the fact and stated that after a thorough and proper inquiry, it was found that the bunk shop owner was paying Mamool to the constables. Looking at all the points and statements of the witnesses and the reports, it was held that the complaint against the writ petitioner is actionable and imposed the punishment.

DECISION

The court in this matter stated that reviewing the punishment implemented on the petitioner for the crime of collecting a Mamool, the authority is not taking corruption charges seriously. In this case, there was no criminal charge registered against the petitioner by the owner of the bunk shop. The authority does not seem to be concerned about the collection of Mamool by their officers.

Regarding the severity of the punishment imposed, the court does not identify any flaws and perversities in light of the facts and circumstances presented. This court also said that the court has the power of judicial review by Article 226 of the Constitution to ensure that the procedure followed by the authority to get to the decision taken by them is by the rules and regulations provided, but not the actual decision.

This court stated that there should be honesty and integrity in the public servants while doing their duties and responsibilities as to no allegation of corruption can be made against them. The public servants of the country are given a decent and enough salary. The competitiveness that has increased in comparing their salary with the employees of the private sector is what is driving them to be corrupt. They held that the authorities are not considering the seriousness of the corruption of their officers and public servants. There have been various judgments and debates regarding corruption. A change should be brought that will prevent the public servants from corruption. In light of the above, the court will send instructions and circulars stating that for any conduct of corruption, there should be a criminal case registered against the police officials who have collected the Mamool.

And for the writ petition, the decision of the punishment is not perverse and the charges against the petitioner are proved to be correct without any perversity. The writ petition therefore fails and stands dismissed.

On Monday Justice Madras HC Justice Anand Venkatesh expressed his thoughts on homosexual relationships. When the judge was ruling on a petition filed by two lesbian girls asking for protection from their parents who were against their homosexual relationship.

Justice Anand Venkatesh shared his thoughts on LGBT Community while giving direction in a petition filed by a lesbian couple. He revealed that he belongs to the majority one who had hesitation in accepting same-sex relationship completely and also revealed that he had voluntarily taken counseling with Vidya Dinakaran, a Psychologist, for understanding the subject of homosexuality to pass the correct judgment. He explained that how difficult it was on his part to pass judgment on this as he has never known anyone personally who was in such a relationship or had never experienced personally such relationship and that’s the reason he had taken counseling because it helped him to understand reality and emotions behind such homosexual relationship and made him realize that he to need to change his notion.

He said the present case has given this court, not only an opportunity but also a vested responsibility to weigh by cause for inclusivity and justice against discrimination by the heretofore social understanding of morality and notions of tradition. As he also said, “ignorance is no justification for normalizing any form of discrimination”

In the following petition, the court has also issued guidelines to ensure that the LGBT person is not harassed by police and authorities

• The police, on compliance regarding girl/women/man missing cases which belong to the LGBT community, shall upon receipt of their statements, close the complaint without subjecting them to any harassment.
• The Ministry of Social Justice & empowerment must list NGOs along with the address, contact details, and services provided shall be published and revised on the official website. And must be published within 8 weeks from the date of order.
• If a person belonging to LGBT faces any issue may approach NGOs.
• The NGOs in consultation with MSJE, must maintain the confidentiality of persons who are approaching
• The problems relating to LGBT Community shall be addressed with the best-suited method depending upon the facts and circumstances of the case.
• Changes should be made in existing stay homes to accommodate a member of the LGBT Community who requires shelters.
• The Union and State Government shall endeavor to device such measures and policies for eliminating prejudice against LGBT Community.
• And creating awareness, the court suggests sensitization programs.

-Report by Riddhi Dubey