Showing posts with label Guest Post. Show all posts
Showing posts with label Guest Post. Show all posts
oming straight to the nub of the matter, it has to be said right at the outset that in a landmark judgment with far reaching consequences, the Delhi High Court on August 24, 2018 in Kulwinder v State (NCT of Delhi) in CRL.A. 129/2012 held 20 more people guilty of killing a 60-year-old Dalit man and his physically-challenged daughter at Mirchpur village in Haryana’s Hissar district in 2010, while dismissing the appeals filed by 15 convicts against the various sentences awarded to them. The Bench of Delhi High Court comprising Justice S. Muralidhar and Justice I.S. Mehta also upheld acquittals of 21 other accused, holding that there was insufficient evidence to establish their guilt. So it was but natural that they had to be acquitted!
Mirchpur Dalit Killings

                                         As things stand, while convicting 20 more people and dismissing all appeals by those already convicted, the Delhi High Court opined that the trial court indulged in “conjectures and surmises” asserting vocally that, “This was an act of deliberate targeting of the Balmiki houses by the Jat community mob and setting them on fire in a pre-planned and carefully orchestrated manner. The entire evidence, if read carefully, more than adequately demonstrates that there was a large scale conspiracy hatched by members of the Jat community to teach the Balmikis a lesson and pursuant to that conspiracy, houses of the Balmiki community were set on fire.” It may be recalled here that the house of one Tara Chand was set on fire resulting in burning alive of the father and daughter on April 21, 2010 after a dispute between Jat and Dalit community of the village. What was then witnessed was that 254 families of the Balmiki community then had to flee Mirchpur as a result of the horrifying violence which they were subjected to at the hands of the Jat community. They were thus rendered homeless as 18 houses of Balmikis which is a Dalit community were burnt by an irate mob of Jats!

                                                  It cannot be lightly dismissed that many Balmikis suffered injuries and their properties were destroyed. The trigger for this heinous crime was a seemingly trivial incident that took place on the evening of 19th June 2010 when a dog which belonged to a Balmiki resident barked at a group of Jat youth returning to their dwelling places through the main thoroughfare of the village. More than eight years later, many of those who fled are yet to return to Mirchpur!

                                       To be sure, of the 103 accused persons sent up for trial, five were juveniles and were tried before the Juvenile Justice Board (“JJB”) in Hissar. Of the remaining 98, the trial ended in the acquittal of 82 of them and the conviction of 16 of them. These seven connected appeals arise out of the impugned judgment of the trial Court.

              The present appeals

                   As it turned out, it is observed in para 3 of this landmark judgment that, “Two of the seven appeals have been preferred by the State, one of them by the original complainants, and four have been preferred by the convicted accused persons. Six of the seven appeals seek to assail the judgment dated 24th September 2011 passed by the learned Additional Sessions Judge (‘ASJ’)-11, North-West District Rohini Courts (hereinafter referred to as ‘trial Court’) in SC No. 1238/2010 arising out of FIR No. 166/2010 registered as PS Narnaund, Haryana. By the said judgment, 15 of the 97 accused persons who had been charged with offences punishable under the Indian Penal Code (‘IPC’) and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 (‘POA Act’) were convicted and sentenced in terms of the consequential order on sentence dated 31st October 2011.” Para 4 further observes that, “The seventh appeal, i.e. Crl.A. 1472/2013, is an appeal by the State against the judgment dated 6th October 2012 in SC No. 1238A/2012 arising out of FIR No. 166/2010 whereby the accused Jasbir @ Lillu son of Raja (A-58) was acquitted of all the offences with which he had been charged except for that punishable under Section 174A IPC to which he pleaded guilty and was sentenced in terms of the consequential order on sentence dated 12th October 2012.”

                              Going forward, para 5 further states that, “The State’s appeal, i.e. Crl.A. 1299/2012 against the judgment dated 24th September 2011 has a total of 90 Respondents. The convicted accused persons have been impleaded as Respondent Nos. 1-15 while the acquitted accused persons have been impleaded as Respondent Nos. 16-90. Para 6 points out that, “The original complainants, i.e. Kamala Devi wife of Tara Chand, Pradeep son of Tara Chand, Gulab son of Jai Lal, Sube Singh son of Bhura Ram, and Satyawan son of Roshanlal, have preferred Crl.A. 139/2012. Therein, the State has been impleaded as Respondent No. 1; the convicted accused persons have been impleaded as Respondent Nos. 2-16; and the accused persons acquitted by the judgment dated 24th September 2011 have been impleaded as Respondent Nos. 17-90. Four of the accused persons died during the pendency of these appeals, viz. Baljit son of Inder (Accused No. 42: ‘A-42’), Bobal @ Langra son of Tek Ram (A-94), Rishi son of Satbir (A-23), and Jagdish @ Hathi son of Baru Ram (A-17).”

        Transfer of the trial to Delhi

                             More importantly, para 7 of this landmark judgment observes that, “As already noted, the charge-sheet in the present case was originally field against 103 accused of which five were juveniles. Therefore, the trials against them were separated and conducted before the JJB at Hissar. Initially, the criminal case against the remaining 98 accused was before the ASJ at Hissar. In fact, the learned ASJ at Hissar had also framed charges against the 98 accused persons by an order dated 6th September 2010. However, pursuant to the order dated 8th December 2010 passed by the Supreme Court of India in W.P.(C)211/2010, SC No.3-SC/ST pending before the Court of the ASJ at Hissar was transferred to the Court of the ASJ at Delhi which was notified as a Special Court under the POA Act and the trial was directed to commence de novo.

                         Charges

                               Suffice to say, in para 8 it was clearly and categorically held about charges that, “The learned ASJ at Delhi passed an order on charge on 10th March 2011 whereby it was held that there was sufficient material to frame charges against various accused persons. Subsequent thereto, 12 separate charges were framed qua 97 accused persons under Sections 120B/302/147/148/149/323/325/395/397/427/435/436/449/450/452IPC as well as under Sections 3(1)(x) and (xv) and 3(2)(iii), charged under Section 216 IPC due to the allegation against him that he had harboured/concealed Sanjay @ Handa son of Dayanand (A-77) with the intention of preventing him from being apprehended. Vinod son of Ram Niwas (A-37), who was the Station House Officer (‘SHO’) of PS Narnaund at the time of the incident, was also charged under the aforementioned provisions of the IPC as well as under Section 4 POA Act for wilfully neglecting his duties as a public servant and who was not a member of a Scheduled Caste (‘SC’) or Scheduled Tribe (‘ST’) during the incident at village Mirchpur. All the accused pleaded not guilty to the charges and claimed trial.” Para 9 further brings out that, “Jasbir @ Lillu son of Raja (A-58 : Respondent in Crl.A. 1472/2013) was declared a proclaimed offender (‘PO’) by the trial Court on 27th September 2011 when he absconded at the stage of recording of the statements of the accused persons under Section 313 CrPC. Therefore, his case was separated out. Trial proceeded from then on against the remaining 97 accused persons.”

   Convictions and sentences awarded by the trial Court

                               It is clearly brought out in para 10 that, “As far as the remaining 97 accused were concerned, by the judgment dated 24th September 2011, the trial Court convicted 15 of them while acquitting the remaining 82 of all charges.” They had now challenged their conviction, while the victims and the police had also appealed against the acquittal of the others, as well as for enhancement of the sentences already awarded.

Absence of fraternity and equality in the Indian society

                            Needless to say, while convicting 20 more people and dismissing all appeal by those already convicted, the Delhi High Court took stock of the current situation of the displaced families, noting that those who decided to stay back at Mirchpur village did not support the prosecution in the present criminal trial, and it was only those who decided not to return who did participate. It further noted that while the Government of Haryana has sought to rehabilitate the displaced families, it is not in Mirchpur but in a separate township. The Delhi High Court very rightly observed that, “The question is whether this accords with the constitutional promise of equality, social justice and fraternity assuring the dignity of the individual.”  

                                      It cannot be lost on us that the Delhi High Court then opined explicitly that the instances of atrocities against the Scheduled castes by those belonging to dominant castes still continue, despite 71 years having passed since independence. This, it observed, was evidence of the lack of equality and fraternity in the Indian society. It observed bluntly and boldly that, “71 years after Independence, instances of atrocities against Scheduled Castes by those belonging to dominant castes have shown no sign of abating. The incidents that took place in Mirchpur between 19th and 21st April 2010 serve as yet another grim reminder of “the complete absence of two things in Indian society” as noted by Dr. B.R. Ambedkar when he tabled the final draft of the Constitution of India before the Constituent Assembly on 25th November 1949. One was ‘equality’ and the other, ‘fraternity’.”

          Cannot accept allegations of false implications

                                 No prizes for guessing that the Delhi High Court also steadfastly refused to accept the allegations of the accused being falsely implicated by the victims, opining that the victims had suffered too huge a personal loss to allow such a finding. It minced no words in observing point blank that, “The atmosphere of fear created by the members of the dominant Jat community was evidently so severe that the confidence of the members of the Balmiki community about their safety and security in Mirchpur is yet to be restored. It is too cynical to characterize the statements given by many of the victims as having been motivated only by the expectation of the compensation announced by the government. Many of the victims lost their properties, were injured and had their houses burnt. The trauma and shock of the incident has left such deep scars that many of them could not gather the courage to speak to the police for many days thereafter. It is in this context that the Court is disinclined to accept any of these submissions regarding alleged false implication of the accused by the victims.”

                 Summary of Court’s findings

                          Finally and most importantly, the Delhi High Court Bench comprising of Justice S. Muralidhar and Justice I.S. Mehta then summarized its findings in para 336. It observed that, “The observations and findings of this Court in the present case may be summarized as follows: -

(i)             There is a clear causal link that exists between the incidents that occurred on 19th, 20th and 21st April 2010 which was overlooked by the trial Court. The incident of 21st April 2010 has to be viewed in the context of the prevailing tension due to the perceived slight against the Jat community by persons from the Balmiki community which occurred on 19th April 2010 and then escalated.



(ii) The need to exaggerate the altercation between some Balmiki boys and Rajender, Karampal and Dinesh that occurred in the early hours of 21st April 2010, as an aggravated assault indicates the simmering tension that was prevalent in the village at the time, which was like a gunpowder keg kept waiting for a spark. This was again missed by the trial Court by seeing the incident on the morning of 21st April 2010 as a one off incident which had nothing to do with the events of 19th and 20th April 2010.



(iii)       Consequently, this Court is unable to subscribe to the sequence of events that has been laid down by the trial Court or its analysis of the same in trying to shift the blame onto the Balmiki boys for attacking members of the Jat community on the morning of 21st April 2010, which proved to be the spark that set off the violence that ensued on that date.



(iv) From the layout of the village, it is apparent that the Balmiki basti was located in one corner of the village abutting fields which lay to the south and surrounded by the dwellings of the Jat community on all other sides. There was no difficulty at all for the Jats to identify the Balmiki houses and attack them. In that sense, it could be said that the houses were attacked selectively. The conclusion drawn by the trial Court with regard to the selective targeting of the houses of the Balmikis is, therefore, set aside by this Court.



(v) The damage and destruction that is evidenced from the record is widespread and, in the opinion of this Court, could not have been carried by a small group of Jat youth as is speculated by the trial court. There is no doubt that it was indeed a mob which made a coordinated and premeditated attack on the Balmiki basti.  



(vi)  The conclusion of the trial Court that there was no criminal conspiracy is unsustainable in law. The trial Court failed to examine the photographs, videograph, and site plans in its analysis of the events of 21st April 2010 and erred in accepting the alternative version of the incident on 21st April 2010 as put forth by the defence. This part of the finding of the trial Court is, therefore, set aside by this Court.    



(vii) It is clear in the present case that an unlawful assembly comprising members of the Jat community was formed with the common object of setting fire to the properties of the Balmiki community and perpetrating violence against them, as it stands established that the members of said unlawful assembly came armed with stones and oil cans as well as lathis, jellies and gandasis which, in the present context, may be considered deadly weapons. The common object of the unlawful assembly was to “teach the Balmiki community a lesson”. Section 149 IPC is, therefore, clearly attracted.  



(viii) Section 3 of the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 introduced an altogether new Schedule to replace the earlier one wherein the Scheduled Castes in the State of Haryana were also listed in Part V. The Balmiki caste is listed under Entry No. 2 of Part V as a Scheduled Caste. Therefore, the offences committed against the Balmiki community attract the POA Act.



(ix) As regards the offences committed with the intention to humiliate the Balmikis that have been adverted to by the prosecution, this Court finds that the evidence adduced in this regard is not sufficient to find any of the accused guilty of the offence under Section 3(1)(x) of the POA Act.



(x) There is abundant evidence to show that at least 254 Balmiki families left Mirchpur and sought shelter in Ved Pal Tanwar’s farmhouse due to the attack suffered at the hands of the Jat mob. It is the collective act of violence by the Jats that compelled these 254 families of the Balmiki community to leave the village. Many of them are still awaiting rehabilitation and reparation. They have been too scared to return. The offence under Section 3 (1) (xv) of the POA Act stands established beyond reasonable doubt and is made out qua some of the accused to whom notices have been issued in the present case.



(xi) As regards the accused who have been held to be involved in the burning of the houses of the deceased Tara Chand, his wife Kamala or Dhoop Singh, the offence under Section 3(2)(iv) POA Act stands attracted, whereas for those accused who have been held to be involved in the damage by fire caused to the other houses, the offence under Section 3(2)(iii) POA Act stands attracted.



(xii) The finding of the trial Court that this was not an instance of violence driven by caste hatred is unsustainable and is hereby set aside. The prosecution has been able to establish beyond reasonable doubt that the offences under Section 3(1)(xv) and Section 3(2)(iii),(iv) and (v) POA Act stand attracted qua some of the accused persons.



(xiii) Section 8 (b) POA Act is of particular relevance in the present case since it makes specific reference to a group of persons committing an offence as a sequel to an existing dispute regarding land “or any other matter”. In such a scenario, it is stipulated that the presumption is drawn as regards the common intention and prosecution of the common object. In the context of the incident of 19th April 2010 and the incident that subsequently occurred on 21st April 2010, the presumption under Section 8 (b) stands attracted.



(xiv) This Court’s findings with respect to the POA Act and the incident of 21st April 2010 are as follows:

1.  There was a deliberate targeting of the houses of the Balmikis by the Jats;

2.  This was an instance of caste based violence meant to teach the Balmikis a lesson for the perceived insult caused to the Jats on 19th and 21st April 2010;

3.  The Jats had planned their attack in advance and had come to the Balmiki basti well armed with oil cans, rehris filled with stones, lathis, gandasis, jellies etc.;

4.  The properties of the Balmikis were burnt and their belongings were damaged/destroyed as is evidenced by the photographs and videograph on record.  



(xv) The inconsistencies and omissions highlighted by the trial Court in rejecting the testimonies of multiple PWs do not materially affect the case of the prosecution. The said witnesses, as discussed, remained unshaken and were, therefore, reliable.



(xvi) The mere fact that a TIP was not conducted in the present case would not vitiate the testimonies of the witnesses who have identified the assailants in the Court. Furthermore, merely because a witness belongs to the Balmiki community or may be closely related to a victim does not mean that such evidence should be disregarded per se.



(xvii) The disregard by the trial Court of the evidence of PWs 42 to 50 only on the ground that none of them came forward to save the two deceased or accompany them to the hospital even though they were related to them is an unacceptable finding. It fails to acknowledge that the situation that existed in Mirchpur on 21st April 2010 was such that the Balmikis were in a vulnerable position, were disoriented and paralyzed by fear. There can be no speculation about how a person should react in a particular contingency.



(xviii) The trial Court erred in rejecting the testimonies of the PWs because they contradicted their statements made before the Commission of Inquiry (CoI). Statements made before a CoI are, in terms of Section 6 of the Commission of Inquiry Act, inadmissible in a trial.



(xix) The trial Court erred in rejecting the testimony of the PWs with regard to the burning of houses in the Balmiki basti by the accused persons merely due to the absence of hydrocarbons of petroleum in the forensic samples and lack of corroboration by medical evidence. As the trial Court itself has noted, the manner in which the samples were collected was less than satisfactory, no specialist team was called and the extremely intricate job of collection of samples was left to a team of non-experts.



(xx) A conviction may be sustained if an accused person has been named and identified by at least two reliable witnesses who give a cogent and consistent account of the incident.



(xxi) PW-50 is a reliable witness. As a rule of prudence as regards consistency, the testimony of PW-50 is relied upon to the extent of the 16 accused she named in the first instance, and then again, this testimony qua these 16 has only been relied upon if corroborated by at least one other reliable eyewitness.



(xxii) It cannot be said in the present case that the dying declaration of the deceased Tara Chand is uncorroborated, as there is sufficient evidence in the form of the depositions of CW-1 and PWs 49 and 50 as well as those of PWs 55, 64 and 68 that fully corroborate the dying declaration, which is a substantive piece of evidencewhich has been relied upon to convict the accused persons.



(xxiii) The incidents of 21st April 2010 constituted an act of deliberate targeting of the Balmiki houses by the Jats and setting them on fire in a pre-planned and carefully orchestrated manner. It was pursuant to a conspiracy by the Jats to “teach the Balmikis a lesson”. Tara Chand and his daughter Suman were set on fire and pushed inside the house in that condition in the full knowledge that they were Balmikis. The dying declaration of Tara Chand more than adequately establishes the role of not only A-34 but also that of his associates who were identified by those present i.e. PW-49, PW-50 and CW-1. Consequently, the Court holds that the killing of Tara Chand and Suman was murder punishable under Section 302 IPC. The judgment of the trial court that it was culpable homicide punishable under Section 304 (II) IPC is hereby set aside.



Sanjeev Sirohi, Advocate,



s/o Col BPS Sirohi,



A 82, Defence Enclave,



Sardhana Road, 



Kankerkhera,



Meerut – 250001,



Uttar Pradesh.
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It has to be said right at the outset that in a remarkable and laudable judgment with far reaching consequences, the Delhi High Court in Harsh Mander & Anr v UOI & Ors in W.P.(C) 10498/2009 & CM Appl. 1837/2010 on August 8, 2018 decriminalised begging, striking down as “unconstitutional” the provisions which made it an offence. How can any law on earth punish a poor and hapless person who due to some reason is unable to earn as for instance those who lose their hands and legs and are not literate and are compelled to resort to begging due to no other option being left before them? This precisely is the reason why Delhi High Court too struck the right chord and struck down the provisions in a law that criminalises begging! I have really just no words and am falling short of words to express my utmost and unadulterated appreciation for this landmark judgment which must be read by all those who are literate and it must be emulated by all courts in all parts of the world and not just in India alone!

                                             To be sure, the Delhi High Court Bench comprising of Acting Chief Justice Gita Mittal and Justice C Hari Shankar who delivered this landmark judgment begins at the very beginning by first and foremost quoting from an article in The Guardian which says that, “…A society that sees legislating inequality and homelessness into invisibility has unquestionably lost its way…” Going forward, the Bench clearly held that, “The inevitable sequitur to our decision would be that all prosecutions, under the Act against persons alleged to have committed the offence of begging, would be liable to be struck down.” Very rightly said! There can be no denying it!

                          It must be revealed here that this landmark judgment came on a petition filed by activists including Harsh Mander, who was represented by senior Supreme Court advocate Colin Gonsalves. It said the provisions of the Bombay Prevention of Begging Act which treats begging as an offence cannot sustain constitutional scrutiny.

                                        Interestingly enough, while there is no central law on begging and destitution, several States have either adopted the Bombay Prevention of Begging Act, 1959 or have modeled their laws on it. The Act prescribes a punishment of detention for not more than three years if a person who was detained in a certified institution, is found begging and is convicted for the first time. All offences under the Act, except those under Section 11, are to be tried summarily. Section 11 which gives the opportunity of being heard to the accused, imposes a punishment of a minimum of one year and a maximum of three years imprisonment on those who cause others to beg or use them for begging.  

                                        It must be brought out here that the Act was made applicable to Delhi in 1960. The Delhi High Court was hearing two PILs – filed by social activists Harsh Mander and Karnika Sawhney – challenging the constitutionality and validity of all Sections, except Section 11 of the Act. They had alleged a violation of Articles 14, 19, 20, 21 and 22 of the Constitution of India by the impugned provisions. They had pointed out that the definition of “begging” under the Act violated Article 14, as it does not make any distinction between persons who solicit or receive money for authorized purposes and those who are singing, dancing or engaged in similar activities.

                                     In addition, they had further alleged that the Act was being arbitrarily applied. They submitted that, “While the Act unjustly restricts the movement of beggars, the application of the Act also limits the movement of a large number of no-beggars. Interviews with lawyers providing legal aid have revealed that 74% of persons arrested were from the informal labour sector such as those employed in small hotels, markets and construction, and 45% were homeless. It was observed that beggars were unaware of the reasons of arrest and were taken to the Beggars Court at the pretext of doing some work like cleaning.”    

                                         As things stood, the Bench agreed with the petitioners contentions and noted inter alia that the law does not in fact make any distinction between types of begging i.e. voluntary or involuntary. It further noted that the State was using homelessness and begging synonymously and termed this arbitrary. Besides, the Court considered the “futility” of lodging and detaining beggars in beggars home as a wastage of public funds, and highlighted the inadequacy of the impugned provisions, observing, “”If we want to eradicate begging, artificial means to make beggars invisible will not suffice. A move to criminalize them will make them invisible without addressing the root cause of the problem. The root cause is poverty, which has many structural reasons: no access to education, social protection, discrimination based on caste and ethnicity, landlessness, physical and mental challenges and isolation.”

                                      Suffice it to say, the Bench said the inevitable consequence of this verdict would be that the prosecutions under the Act against those who are alleged to have committed the offence of begging, would be liable to be struck down. It held that, “The power to do so would, however, appropriately vest in the courts seized of such prosecutions, and we, therefore, limit ourselves to observing that the fate of such prosecutions, if any, would have to abide by the present judgment, and our observations and findings contained herein.”

                                 Needless to say, in her last judgment as the Acting Chief Justice of the Delhi High Court, Justice Gita Mittal who has been approved as the Chief Justice of Jammu and Kashmir High Court minced absolutely no words in stating clearly and categorically that, “People in this stratum do not have access to basic necessities such as food, shelter and health, and in addition criminalizing them denies them the basic fundamental right to communicate and seek to deal with their plight.” Absolutely right! No person in his right senses will ever disagree with what Justice Gita Mittal has said!     

                                          Be it noted, Delhi Prevention of Begging Rules 1960 formulated under the Bombay Prevention of Begging Act 1959, makes begging an offence. Under this offence, beggars were often picked up and produced before the courts from where they were sent to beggar homes. The 23-page landmark judgment came on two pleas, challenging various sections of the Bombay Begging Act which was adopted by the Union Territory of Delhi in 1960. Para 1 of this landmark judgment begins by pointing out that, “These writ petitions challenge the constitutionality and validity of all sections, except Section 11 of the Bombay Prevention of Begging Act, 1959 (hereafter referred to as the ‘Act’) as extended to the Union Territory of Delhi (now the NCT of Delhi) vide G.S.R. No. 638 dated 2nd June, 1960, published in the Gazette of India, pt. 11, Section 3(i), dated 11th June, 1960 on the ground that it violates the Fundamental Rights guaranteed under Articles 14, 19, 20, 21 and 22 of the Constitution of India.”

                                      Truth be told, the Bench of Delhi High Court said that they are spared the necessity of striking down the entire Act and dealt with 25 Sections which either treat begging as an offence committed by the beggar or deal with ancillary issues such as powers of officers to deal with the said offence among others. It held that, “These provisions either treat begging as an offence committed by the beggar, or deal with ancillary issues such as powers of officers to deal with the said offence, the nature of enquiry to be conducted therein, punishments and penalties to be awarded for the offence, the institutions to which such “offenders” could be committed and procedures following the awarding of sentence for committing the said offence.” It further went on to say that, “These provisions, in our view, cannot sustain constitutional scrutiny and deserve, therefore, to be struck down.”  

                                        Simply put, while striking down the legal provision criminalizing begging in the capital, the Bench of Delhi High Court observed that, “Begging is their last resort to subsistence; they have no other means to survive.” It also observed that, “People beg on the streets not because they wish to, but because they need to.” It also slammed the government for its failure to ensure the bare essentials of the right to life to all its citizens, even in Delhi, the national capital.

                                         As it turned out, the Delhi High Court Bench added that the state is at liberty to bring in an alternative legislation to curb any rackets of forced begging, after undertaking an empirical examination on the sociological and economic aspects of the matter. It also sent out a loud and clear message to the State by holding that, “If the State wishes to criminalise specific types of forced beggary, it has to first think out a clear factual basis and impact thereof to pass a well thought legislation after due application of mind and being mindful of the rights provided under the Constitution of India.”

                                     It must be reiterated that the Bombay Prevention of Begging Act, 1959 functions as the derivative figure for all state anti-begging laws. Several beggars have been thrown into jail in the capital under the law. Such laws must be struck down and in Delhi this is exactly what the Delhi High Court has opted to do!

                                 Truly speaking, the Delhi High Court very clearly and convincingly held that, “Begging is a symptom of a disease, of the fact that the person has fallen through the socially created net. The government has the mandate to provide social security for everyone, to ensure that all citizens have basic facilities, and the presence of beggars is evidence that the state has not managed to provide these to all its citizens.” It also said that, “We find reports of starvations deaths in the newspapers and ensuring education to the 6 to 14 year old remains a challenge.” Madhur Verma who is Delhi Police spokesperson while hailing this landmark judgment rightly said that, “It’s a welcome move as begging is more of a social menace. It requires a more inclusive approach. Arresting someone for begging was hardly ever a solution.”

                                  Until now, the police was empowered to arrest beggars. This was used to arrest many poor and hapless beggars which only further served to rub salt on their wounds! But this landmark judgment will certainly now act as the most potential deterrent in protecting beggars from being arbitrarily arrested and thrown behind bars just for begging! It has most certainly come as a real beacon of hope for these poor hapless beggars who feel their voice is unrepresented among the higher echelons of ruling class!  

                                    It cannot be lost on us that para 31 of this landmark judgment pulls back no punches in conveying it clearly and categorically that, “Criminalizing begging is a wrong approach to deal with the underlying causes of the problem. It ignores the reality that people who beg are the poorest of the poor and marginalized in society. Criminalizing begging violates the most fundamental rights of some of the most vulnerable people in our society.” Para 33 further observes that, “The State simply cannot fail to do its duty to provide a decent life to its citizens and add insult to injury by arresting, detaining and, if necessary, imprisoning such persons, who beg, in search for essentials of bare survival, which is even below sustenance. A person who is compelled to beg cannot be faulted for such actions in these circumstances. Any legislation, penalizing the people, therefore, is in the teeth of Article 21 of the Constitution of India.”

                       Conclusions

                                    In essence, para 40 of this landmark judgment says that, “When, in the backdrop of the above discussion, we examine holistically, the provisions of the Act, we find that, while most of the provisions contained therein directly deal with begging, treating it as an offence, or other provisions ancillary thereto, there are certain provisions which do not treat beggary per se as an offence and which therefore, may not be hit by the vice of unconstitutionality.” Para 41 further stipulates that, “We are, therefore, spared the necessity of striking down the entire Act, wholesale. The provisions which treat beggary/begging as an offence, committed by the beggar, or are ancillary thereto, would be Sections 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28 and 29.”

                                        Moving ahead, para 42 observes that, “These provisions either treat begging as an offence committed by the beggar, or deal with ancillary issues such as powers of officers to deal with the said offence, the nature of enquiry to be conducted therein, punishments and penalties to be awarded for the offence, the institutions to which such “offenders” could be committed and procedures following the awarding of sentence for committing the said offence. These provisions, in our view, cannot sustain constitutional scrutiny and deserve, therefore, to be struck down.” The next para 43 further says that, “The remaining provisions of the Act, which do not directly or indirectly criminalize begging, or relate to the “offence” of begging, such as Section 11 (which deals with penalty for employing or causing persons to solicit or receive alms, or using such persons as exhibits), Section 30 (which deals with seizure and disposal of animals exposed or exhibited for obtaining or extorting alms), and other provisions which deal with the nature of offences under the Act, appeals, the power to frame rules and removal of difficulties, would not be required to be struck down and are, therefore, maintained.”    

                                   Result

                                  Finally and most importantly, we now deal with what the Delhi High Court gave in its result. In para 44, it held that, “In the result, we declare Sections 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28 and 29 of the Bombay Prevention of Begging Act, 1959, as extended to Delhi, as unconstitutional and strike down the said provisions.” In para 45, it held that, “The inevitable sequitur to our decision would be that all prosecutions, under the Act against persons alleged to have committed the offence of begging, would be liable to be struck down. The power to do so would, however, appropriately vest in the Courts seized of such prosecutions, and we, therefore, limit ourselves to observing that the fate of such prosecutions, if any, would have to abide by the present judgment, and our observations and findings contained therein.” In para 46, it also held that, “The state is always at liberty to bring in alternative legislation to curb any racket of forced begging after undertaking an empirical examination on the sociological and economic aspects of the matter.” Last but not the least, para 47 winds up by noting that, “Before parting with the case, we are reminded of the words of Krishna Iyer, J in the pronouncement reported at AIR 1981 SC 674 Gopalanachari v State of Kerala when he said that, “…If men can be whisked away by the police and imprisoned for long months and the court can keep the cases pending without thought to the fact that an old man is lying in cellular confinement without hope of his case being disposed of, Article 21, read with Articles 14 and 19 of the Constitution, remain symbolic and scriptural rather than a shield against unjust deprivation. Law is not a mascot but a defender of the faith. Surely, if law behaves lawlessly, social justice becomes a judicial hoax.”

                                            In the ultimate analysis, it is a landmark judgment which will ensure that beggars don’t land up in jail just because of begging. It is one of the finest judgment which must be read by every literate person! It will certainly not tantamount to an exaggeration from any angle to say that it is worthy of being emulated by all courts from top to bottom!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.
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It has to be stated before anything else that in a landmark judgment which is being considered as a huge blow to the AAP Government in Delhi, the Delhi High Court in its landmark judgment titled Federation of Okhla Industrial Association (Regd) v Lt Governor of Delhi and anr in W.P.(C) 8125/2016 & CM No. 3362/2016 reserved on 22 May and delivered finally on 4 August, 2018, quashed its much-touted March 2017 order revising the minimum wages for all classes of workmen in scheduled employment, opining clearly and categorically that the same was ultra vires Article 14 of the Constitution of India. The Bench of Delhi High Court comprising Acting Chief Justice Gita Mittal and Justice C Hari Shankar further opined that the impugned notification suffered from “non-application of mind”, was not based on any material and violated principles of natural justice. So it was but natural that it had to be quashed!   

                                Truth be told, the Bench also declared  explicitly that the constitution of the Minimum Wages Advisory Committee for all scheduled employments by the Government as ultra vires Sections 5(1) and 9 of the Minimum Wages Act, 1948, opining that the formation of this Committee was “completely flawed”. It should not have been set up at the first place! This Delhi High Court’s latest landmark judgment was issued primarily as a culmination of the petitions that were filed by employers – associations of traders, petrol dealers and restaurants – who had challenged the two notifications – one that was issued in September 2016 reconstituting the Minimum Wages Advisory Committee for all scheduled employments, and another issued in March 2017, revising the minimum rates of wages for all classes of workmen/employees in all scheduled employments.  

                                     Be it noted, para 2 of this landmark judgment states that, “An attempt to constitute a Minimum Wage Advisory Committee by an order dated 12th April, 2016, had already disrupted the course of wage revision once. Alas, even though the revision is sorely needed, the hurried attempt again, inter alia failing to comport with binding the statutory requirements, without relevant material and contravening principles of Natural Justice has unfortunately disrupted this course, yet again.” There can be no denying it!

                                      Going forward, para 3 further goes on to say that, “This batch of writ petitions, lays a challenge to the constitutionality of the Notification bearing no. F-13(16)/MW/1/2008/Lab/1859 dated 15th September, 2016 issued by the Lt. Governor of Delhi in exercise of powers conferred by Section 5(1) of the Minimum Wages Act, 1948 (hereafter referred to as ‘the Act’). By this notification, the respondents re-constituted the Minimum Wages Advisory Committee for all scheduled employments.” Para 4 further reveals that, “These petitions also challenge the constitutional validity of the Notification bearing no. F. Addl.LC/Lab/MW/2016 dated 3rd of March 2017 published in the Official Gazette on 4th March, 2017, again issued by the respondents, in exercise of power conferred by Section 5(2) of the enactment. By this Notification, minimum rates of wages for all classes of workmen/employees in all scheduled employments stand revised w.e.f. the date of the notification in the official gazette. The challenge rests, inter alia, on the plea of the petitioners that both these notifications are ultra vires the provisions of the enactment itself and that the respondents also violated the principles in issuance of the notifications.”

            Hurried Actions Of The Government

                                     It cannot be lost on us that this landmark judgment authored by Acting Chief Justice of Delhi High Court Gita Mittal begins by first and foremost quoting Lewis Caroll from Alice in Wonderland that, “The hurrier I go, the behinder I get” to assert emphatically that the quote “appropriately manifests the manner in which the hurried actions of the respondents would set back the entire workforce of the city.” It then goes on to note that while an attempt to revise wages was in fact “sorely needed”, the hurried attempt, without adherence to binding statutory requirements, without relevant material and in violation of principles of natural justice, disrupted the entire exercise.”  

            Crux of the Judgment

                                It would be in the fitness of things to now shell out the crux of this entire landmark judgment which will make the whole picture very clear as to what it implies. In other words, it can be safely said that it is the summary of the conclusions that Delhi High Court Bench held bare so explicitly. The key points as laid down in the concluding part of this landmark judgment are as follows: -

1.  The High Court under Article 226 of the Constitution of India can interfere with a notification fixing minimum wages only on “the most substantial grounds”.   

2.  The purport and object of the Act in fixing the minimum wage rate is clearly to prevent exploitation of labour. The hardship caused to individual employers or their inability to meet the burden of minimum wages or its upward revision, has no relevance.

3.  The object, intendment and provisions of the Minimum wages Act, 1948 are clear and unambiguous, and therefore, the applicability of the beneficent rule of interpretation is completely unnecessary.

4.   Minimum wages have to be more than wages at the subsistence level, have to take into consideration all relevant factors and prescriptions made after due application of mind and must take into consideration the norms and component as approved by the Supreme Court in the Reptakos judgment.

5.  The Supreme Court has rejected challenges to the constitutionality of the Minimum Wages Act, 1948 for the reason that the legislation has ensured the mechanism provided under Section 5, 7 and 9 of the enactment. This places the requirement of compliance with the provisions thereunder on an extremely high pedestal and they had to be strictly adhered to by the respondents.

6.  The appropriate government is required to take into account the report and advice rendered by the Committee/Advisory Board and to apply independent mind and take a balanced decision so far as fixation or revision of minimum wages is concerned. The Government is not bound by the recommendations of the Committee. It is open to the Government to accept (wholly or in part) or to reject the advice of the Board or report of the Committee.

7.  While there is no absolute prohibition on an employee of the Government being nominated as an independent member of the Committee under Section 5 of the Minimum Wages Act, an objection to such nomination has to be decided on the facts and circumstances of the case. It is only when minimum wages are under consideration for an industry in which the State may be vitally interested as an employer, that it may not be proper to nominate an official to the Committee treating him to be an independent member.

8. A defect in composition of the Committee under Section 5 would not per se vitiate either its advice or the decision taken thereon. A defect in the composition of the Committee would vitiate its advice, or the ultimate decision of the Government fixing the minimum wages, only if such illegality or defect has worked to the prejudice to a party, for example where the interest of a particular group of employer or employees has not been represented or has not been taken into consideration.

9. The Delhi Metro Rail Corporation is not an employer engaged in scheduled employment in Delhi and it could not have been appointed on the Committee under Section 5 as a representative of the employer.

10. Though the eligibility of the officers of the Labour Department or the Director of Economics & Statistics as members of the Committee cannot be faulted, however they failed to conduct themselves dispassionately and did not apply their independent minds. The respondent has appointed the very officials as independent persons on a Committee, which had already taken a view in the matter and made recommendations as members of a Committee in the year 2016, therefore, when appointed for the second time, they were clearly close-minded and proceeded in the matter in a predetermined manner.

11. The respondents have denied the statutorily mandated representation to the actual employers in scheduled employments in Delhi which tantamount to non-compliance of Section 9 of the Minimum Wages Act, 1948 and failure on the part of the respondents to constitute a Committee required by law to be constituted.

12. It is essential that under Section 5(1) of the MW Act, a Committee “properly constituted” is “genuinely invited” with an open (‘receptive’) mind to tender advice to the appropriate Government.

13. It has to be held that employers in the scheduled employments as well as employees with divergent views stand ousted from the consideration and their interests certainly compromised to their prejudice. This prejudice to the employers and employees would constitute a ‘most’ substantial ground (Ref : (2008) 5 SCC 428 (para 14), Manipal Academy of Higher Education vs. Provident Fund Commissioner) justifying interference by this court in exercise of jurisdiction under Article 226.

14. Clearly the Government of NCT of Delhi was aware of the requirement of law and consciously failed to comport to the same.

15. It is not open to a representative to insist on an oral hearing before the Committee appointed under Section 5 or the Advisory Board under Section 7 of the Minimum Wages Act, 1948.

16. The fixation of minimum wages in Delhi cannot be faulted simply because they are higher than the rates of minimum wages fixed in surrounding States and Towns.

17. The Committee in making its recommendations, as well as the respondents in issuing the singular notification for uniform minimum wages for all scheduled employments, have completely ignored vital and critical aspects having material bearing on the issue.

18. Any change in the prescribed rates of minimum wages, is bound to impact both the industry and the workmen. The respondents were bound to meaningfully comply with the principles of natural justice especially, the principles of fair play and due process. The representatives of the employers, had a legitimate expectation of being heard as the advice of the Committee was to inevitably affect them, which has been denied to them before the decision to revise minimum wages was finalized.     

19. The constitution of the Committee was completely flawed and its advice was not based on relevant material and suffers from non-application of mind. The Government decision based on such advice is in violation of express statutory provision, principles of natural justice, denied fair representation to the employers as well as the employees in fact without any effort even to gather relevant material and information.

20. The non-application of mind by the committee and the respondents, to the relevant material considerations, offends Article 14 of the Constitution of India.   

                              Having said this, it must be now stated that in para 365 of this landmark judgment, it is pointed out that, “The Notification bearing no. F-13(16)/MW/1/2008/Lab/1859 dated 15th September, 2016 issued by the respondents constituting the Minimum Wages Advisory Committee for all scheduled employments is ultra vires Section 5(1) and Section 9 of the Minimum Wages Act, 1948 and is hereby declared invalid and quashed.”

                                  Furthermore, in para 366, it is pointed out that, “The Notification bearing no. F. Addl. LC/Lab/MW/2016 dated 3rd of March 2017 issued by the respondents revising minimum rates of wages for all classes of workmen/employees in all scheduled employments is ultra vires Article 14 of the Constitution of India; of Section 3 & Section 5(2) of the Minimum Wages Act, 1948, of Rule 20 of the Minimum Wages (Central) Rules; appears from non-application of mind, is based on no material and is in contravention of principles of Natural Justice and is hereby declared invalid and quashed.” Also, para 368 says that, “The applications are disposed of as having been rendered infructuous.” Finally para 369 concludes the judgment by saying that, “No order as to costs.”  

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.
0
It must be stated at the outset that it is most concerning to see that it is India which records maximum deaths due to road accidents. The deaths due to road accidents is more than the death caused by terrorists or by any other known cause! What is even more shocking to see is that still we see the rampant use by drivers of cell phones and not wearing helmets at all or wearing not proper helmets which can protect their head if met with an accident!  
                                         As it turned out, in a slew of directions issued to ensure road safety, the Uttarakhand High Court in the landmark case of Avidit Noliyal v State of Uttarakhand and others in Writ Petition No. 148 of 2014 (PIL) on June 18, 2018 in a slew of directions issued to ensure road safety directed the State to issue directions authorizing cancellation of licences of drivers found using cell phones while driving. This landmark ruling was the crying need of the hour also! Now people will be compelled to follow what the Uttarakhand High Court has directed so explicitly to ensure road rules are followed  which in turn will ensure maximum safety of all those who either drive or walk on roads!
                                          While craving for the exclusive indulgence of my esteemed readers, let me inform them that the Bench of Uttarakhand High Court comprising of Justice Rajiv Sharma and Justice Lok Pal Singh which was hearing a petition filed by one Avidit Noliyal seeking directions to the State authorities to strictly implement Sections 128 (safety measures for drivers and pillion riders) and 129 (wearing of protective headgear) of the Motor Vehicles Act, 1988 and the Rules framed thereunder. Responding to the petition, the State had submitted details of the challans issued under Section 129. But this alone is just not enough! This was noted even by the Bench of the Uttarakhand High Court which while appreciating the steps taken by the State made it a point to take notice of the discernible fact that 50 percen5t of people driving two-wheelers were still not using protective gears and thus exposing themselves to all sorts of injuries and risks!
                                        For my esteemed readers exclusive indulgence, it must also be informed here that para 2 of this landmark judgment points out very clearly and categorically that, “The State has filed the counter affidavit. The State Government has given the details of the Challans issued under Section 129 of the Motor Vehicles Act. The Court appreciates the steps taken by the Government agencies for the enforcement of Section 129 of the Act. However, the Court can still take judicial notice of the fact that 50 percent of the Scooterists/Motorcyclists are not using protective headgear as ordained under Section 129 of the Motor Vehicles Act, 1988 (herein after referred to as the Act), seriously entailing injuries to themselves. This kind of law is known as paternalism. Though, it is the responsibility of the person to protect his/her life and property, but still in the larger public interest, this enactment has been made by the Central Government. The scope of this writ petition has been enlarged. The Court has taken judicial notice of the iron angles, iron rods (sariyas), logs, girdles including iron sheets and fiber sheets protrude outside the transport vehicles. These are very fatal. The transport vehicles cannot be permitted to ferry iron rods (sariyas), logs, girdles including iron sheets and fiber sheets protruding/projecting outside the length of the vehicle. Many valuable lives are lost due to the reckless act of the owners of the transport vehicles. The highest number of accidents of this type are reported in the State of Uttar Pradesh. The tractor-trollies, trucks, jeeps, bullock carts are the main carriers of these items. We have also noticed the drivers using cell phone while driving the vehicles endangering their lives as well as the lives of other persons. These illegal acts are required to be curbed with heavy hand. Even if the headgears are used by the motor cyclists/scooterists, it is not I.S.I mark. It is more ceremonial than effective.” Very rightly said! There can be no denying or disputing it! This alone explains why so many people lose their precious lives every year in our country due to road accidents which is the highest in the world!
                                         Having said this, it must be now brought out here that the Bench of the Uttarakhand High Court comprising of Justice Rajiv Sharma and Justice Lok Pal Singh then disposed of the petition by issuing a slew of landmark directions in the larger public interest. Those slew of landmark directions are as follows: -
(i)                         The State Government is directed to enforce strictly the provisions of Section 129 of the Act.     
Helmet with ISI mark compulsory
(ii)                      No motor motorcyclists/Scooterists shall be permitted to ply the motorcycle/scooter without wearing helmet of I.S.I mark. The Senior Superintendent of Police, C.O.’s and Kotwals shall be personally responsible to implement this order.
(iii)                   It shall be open to all the citizens throughout the State Government to point out the non-compliance of this Court’s orders through the Registrar General of this Court.
Ban on carrying iron sheets, pipes and rods
(iv)                   The State Government is directed to make Rules prohibiting the carrying of the iron sheets, iron rods, girdles, steel pipes and plastic pipes beyond the structural length/body of the vehicles. Till the Rules are made there shall be the ban of carrying iron sheets, iron rods, girdles, steel pipes and plastic pipes beyond the structural length/body of the transport vehicles throughout the State of Uttarakhand.
(v)                      These directions shall apply from the source to all the transporters. It shall be the responsibility of the factory owners and shopkeepers to ensure the due compliance of this order forthwith.
Cancellation of licence of those using cell phone while driving
(vi)                   The State Government is directed to issue necessary instructions to cancel the licenses of those persons, who are found using cell phones while driving. Till the State Government comes out with the necessary amendment/notification, fine of Rs. 5000/- shall be charged from every violator using the cell phone while driving.
No driving licence for minors
(vii)                The State Government is also directed to ensure that no minors are issued any driving licenses and they are not permitted to drive the vehicles. The Principals/head of the Institution of all the Educational Institutions shall make the students aware of these directions issued hereinabove and cooperate for due implementation of these directions in larger public interest.
                                 No doubt, it is a landmark ruling which must be fully and firmly implemented. It is the bounden duty of the State Government and the concerned authorities to ensure that what all directions this Bench of Uttarakhand High Court comprising of Justice Rajiv Sharma and Lok Pal Singh have given in this landmark case is given effect to effectively and taken to its logical conclusion! It brooks no delay. People too must cooperate to ensure that this landmark judgment is fully complied with because it is for their safety and for their benefit that this landmark judgment has been delivered!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.
0
Coming straight to the nub of the matter, it has to be said at the very outset with a lot of appreciation that in the landmark case of Manoj Singh Pawar v State of Uttarakhand & others Writ Petition (PIL) No. 156 of 2016 which was delivered on June 18, 2018, the Uttarakhand High Court issued a slew of landmark directions to check drug peddling and abuse in the state. We all know that drug peddling and abuse has become a very common phenomenon. It has to be checked from spreading further so that the damage can be contained from further spreading!

                                       As it turned out, the Bench comprising Justice Rajiv Sharma and Justice Lok Pal Singh specifically took note of drug abuse in educational institutions, prevailing so rampantly. It directed the State to ensure that a policeman in plain clothes is stationed around each educational institute from 8 am to 6 pm. It further directed all educational institutes in the State to ensure appointment of the senior-most teacher as the nodal officer to counsel students every Friday on the ill effects off drugs.    

                                    Simply put, the present petition has been filed by the petitioner, Mr Manoj Singh Pawar highlighting the opening of liquor vend right in the heart of Almora town in the close proximity of District Hospital, opposite the Government Museum and Govt. Girls Inter College and bus stand. Mr Manoj had drawn the Court’s attention to the fact that the establishment of liquor vends is regulated and controlled under the Uttar Pradesh Number and Location of Excise Shops Rules, 1968 which bars opening of such vends in close proximity of places of public worship, schools, hospitals or residential colonies. Similar instructions had been issued by the State as well.

                                      Briefly stated, the essence of Sub-rule 4 of Rule 5 is as follows: “4(a) No shop or sub-shop shall be licensed within a distance of 50 (fifty) meters in case of Municipal Corporations; within a distance of 75 (seventy-five) meters in case of Municipal Councils and Nagar Panchayat; and within a distance of 100 (one hundred0 meters in other areas from any place of public worship or schools or hospitals or residential colony:

Provided that if any place of public worship, school, hospital, residential colony comes into existence subsequent to the establishment of shop or sub-shop, the provisions of this rule shall not apply:

Provided further that the distance restriction shall not apply in areas designated as “commercial” or “industrial” by the development authority/industrial development authority or other competent authority.  

(b) The distance referred in clause (a) shall be measured from the mid point of the entrance of the shop or sub-shop along the nearest path by which pedestrian ordinarily reaches to the mid-point of the nearest gate of the place of public worship or a school or a hospital or a residential colony, if there is a compound wall and if there is no compound wall to the mid-point of the nearest entrance of the place of public worship or a school or a hospital or a residential colony.”

For the sake of brevity, the mention of explanation after Sub-rule 4 (a) has been omitted.

                                                 It would be pertinent to mention here that in view of the petitioner’s submissions, the Bench observed that, “This should not have been permitted to be done by the State government. The availability of narcotics including liquor, wine should not be readily available. These liquor vends should be far away from the educational institutions, busy hubs, commercial centers, hospitals, factories, temples etc.” Very rightly said! There can be no denying it!

                                        Truth be told, the Bench then enlarged the scope of the petition in larger public interest to ensure that no liquor vend is issued licence, opened, and operated in contravention of these rules. During the course of the hearing, it also interacted with the police authorities in the State, and expressed its concerns with regard to the availability of charas, heroin and artificial drugs to the students community in the State. It lamented the fact that “drug abuse has broken the social fabric and has destroyed number of families”, and directed the officers to sensitize the entire police force to ensure that drugs are not available to the students.

                                          Going forward, the Bench was further informed that a Special Operational Group (SOG) has been constituted in each district under his jurisdiction. It however noted several deficiencies in the machinery put together by the State, observing, “There are no special check posts to check the smuggling of drugs/narcotics substances from across the border as well as in the bordering districts of Himachal Pradesh, Uttar Pradesh, Haryana. A startling revelation has been made by the Deputy Inspector General that there is only one Drug Inspector available in the entire Kumaon Range. There are no rehabilitation centers in the entire Kumaon Region for rehabilitation of the youth addicted to drugs. There are no sufficient number of psychiatrists for counseling in the hospitals. There is no separate ward earmarked for rehabilitation of drug addicts.”

                                      Needless to say, the Court then opined that kingpins of the trade should be booked under the provisions of Money Laundering Act, 2002. It in fact went on to direct the Principal Secretary (Home) to the Government of Uttarakhand to issue directions to all investigating officers in the State to take recourse to Section 27A (punishment for financing illicit traffic and harbouring offenders) of the Narcotic Drugs and Psychotropic Substances Act, 1985 for charging those accused of such activities in order to curb the menace of drug abuse.

                               Having said this, it is now time to dwell upon the mandatory directions which were issued by the Bench of Uttarakhand High Court before disposing of the  petition. Those directions are as follows: -

   Constitution Of Special Protection Groups



A.  The Special Operational Groups shall be headed by an Officer not below the rank of Inspector along with at least 10 police personnel out of which 5 should be women. The S.S.P./S.P. of each district shall be personally responsible to monitor the operations carried out by the Special Operational Group. The Circle Officer of the concerned Circle shall be the Supervising Officer.



  Appointment Of Drug Inspectors Within 3 Months



B.  The State Government is directed to appoint more Drugs Inspectors in each district in cluster of two districts in hill areas and two Drugs Inspectors in each plain district i.e. Dehradun, Haridwar, Udham Singh Nagar and plain areas of Champawat and Nainital within three months from today.



Special Check Post On Indo-Nepal Border



C.   The Director General of Police, State of Uttarakhand is directed to set up special check posts on Indo-Nepal Border to check the free flow of narcotics substances into the State of India from Nepal. The Special Check Post shall be headed by a person not below the rank of Sub Inspector. Needless to add that the check post shall be equipped with the latest state of art equipment i.e. Scanners. The check posts shall be set up within three months from today and the necessary equipments shall be supplied within this period only.  



Special Task Force At Check Posts Adjoining Neighbouring States



D. The State Government is directed to have Special Task Force (STF) at all the check posts adjoining the State of Uttarakhand i.e. Himachal Pradesh, U.P., Haryana etc. to check the transportation of narcotics and more particularly artificial drugs in the State. The units and check posts shall keep a close vigil on the buses, trains and other conveyances in the State of Uttarakhand.



      Uprooting Of Cannabis From The Wild



E.  The State Government is directed to undertake special drives to uproot the cannabis found even in the wild. All the revenue officers, forest officers and elected representatives of Panchayat Raj Bodies are directed to inform the police about the illegal cultivation of cannabis, opium and poppy in their respective areas.



                 Awareness Drives



F.    The State Government is also directed to launch awareness drives to make the people aware of the ill effects of drugs on the society. The District Magistrate of the district shall be the Nodal Officer to make the citizens aware of the ill-effects of the drugs and controlling the same. The State Government shall make sufficient provisions for awareness drives through electronic media, print media, internet, radio television etc.



    Latest Kits To Investigating Officers



G. The State Government is directed to provide latest kits to the Investigating Officers to investigate the matters under the Opium Act, NDPS Act and other allied Acts.



Registration Of Cases Under Money Laundering Act



H. The State Government through the Director General of Police is directed to register cases against the kingpins under the Money Laundering Act, 2002 at the time of lodging the FIR under the NDPS Act and Opium Act and also, if necessary, by attaching their properties provisionally relating to supply of poppy straw, coca plant and coca leaves, prepared opium, opium poppy and opium, opium by cultivator, cannabis plant and cannabis, manufactured drugs and preparation and psychotropic substances including artificial drugs etc.



Rehabilitation Centres In Each District Within Six Month



I.     Since the drugs menace has attained alarming preparation, the State Government is directed to establish Rehabilitation Centers in each district of the State within a period of six months from today. The rehabilitation centers shall provide all the basic necessities to the inmates including boarding, lodging, counseling etc.



Appointing One Psychiatrist For Counseling



J.    The State Government is directed to appoint one Psychiatrist for counseling in each Rehabilitation Center. The Counselor appointed in rehabilitation center shall also visit all the schools falling in his jurisdiction advising the students about the ill effect of drugs.



Counseling Of Students In All Schools



K.   All the educational institutions i.e. government run, government aided, private schools, minority institutions, are directed to appoint the senior-most teacher as the Nodal Officer to counsel the students on every Friday of the month about the ill-effects of drugs. In case, he finds any drugs abuse or symptoms, he shall be at liberty to summon the parents of students. The parents will be sensitized against the drugs abuse in parent-teacher meetings.



One Policeman Around All Educational Institutions



L.   The State Government is directed to ensure one plain clothed policeman from 8AM to 6 PM around all the educational institutions to nab the drugs peddlers and kingpins. The local intelligence units are directed to keep a close watch on the shops including Dhabas, tuck shops, Khokas, tea stalls to ensure that the owners thereof are not permitted to indulge in the sale of drugs etc.



Raiding Of Factories, Industries And Medical Shops



M.         The Drugs Inspector while raiding the factories, industries, medical shops shall be accompanied by a person not below the rank of Circle Officer including the Gazetted Officer from the Food and Supplies Department.



SSP/SP To Personally Monitor All Cases



N. The SSP/SP of the concerned district shall personally monitor all the cases registered under the Opium Act and the NDPS Act, 1985 to plug the loopholes during the course of enquiry and investigation to increase the conviction rate.



Updating Executive Magistrates And Gazetted Officers



O.            The Executive Magistrates and the Gazetted officers throughout the State shall be informed about their duties to be discharged under the NDPS Act more particularly, Section 50 and the latest law laid down by the Hon’ble Supreme Court of India and by this Court from time to time.



Cancellation Of License If Liquor Is Supplied to Minors



P.   The Police Officers shall ensure that no minor is served any drugs, alcoholic beverages in any medical shops, bars restaurants and through vend. No vend shall supply/sell the liquor to any minor. In the eventuality of liquor being supplied/sold to a minor, the license issued for bar/vend shall be cancelled after putting them to notice. This direction shall be complied with by the police force as well as by the Excise Department. The concerned Circle Officer shall visit every medical shop at least within 24 hours to check the supply of drugs to any minor.



Examination Of Respondent Liquor Vend



Q.            The SDM, Almora is directed to measure the distance as per the Rules and the norms prescribed by the State Government within 72 hours. In case, the distance is found less than 100 meters, the State Government shall shift the liquor vend within 7 days from today at an appropriate place and if, it is more than 100 meters, it shall be permitted to operate



Ensuring That All Liquor Vends Comply With The Law



R.  The Secretary, Excise to the State of Uttarakhand is directed to ensure that no liquor vend is situated in violation of the Uttar Pradesh Number and Location of Excise Shop Rules, 1968 as well as the instructions issued by the State Government on 16.06.2008. The necessary exercise shall be undertaken within one week from today.

                              All said and done, it is a landmark judgment with far reaching consequences. It has issued most landmark directives which must be implemented in letter and spirit. To check the young age group from getting immersed in drug abuse, it is imperative that these landmark directives are implemented in its entirety!



Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

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