Showing posts with label Guest Post. Show all posts
Showing posts with label Guest Post. Show all posts
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.
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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.
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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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Let me begin at the very beginning by pointing out straightaway that in a verdict which grabbed the news headlines of all news channels as well as newspapers and magazines, a Special CBI court on December 21, 2017 acquitted all the accused, including former Telecom Minister AA Raja and DMK MP Kanimozhi and telecom company owners in the infamous 2G scam. The judgment acquitted them in all three separate cases lodged by the CBI and the Enforcement Directorate (ED). No doubt, this has come as a big respite for all those who were very anxiously waiting for this verdict to come!
                                         Before proceeding ahead, let me point out here that the case centres around five main allegations: fixation of an arbitrary cut-off date; violation of First Come First Serve policy in issuing Letters of Intent (LoIs); granting of Unified Access Service licences to two ineligible companies and payment of Rs 200 crore bribe to Kalaignar TV Pvt Ltd, promoted by the family of DMK patriarch M Karunanidhi.
      
                                       Terming the CBI chargesheet as a “well choreographed” one, Special Judge OP Saini minced no words in saying pin pointedly that, “The CBI’s evidences were incorrect facts which miserably failed to prove charges against the accused in 2G spectrum case.” Reacting to the acquittal, the CBI and the ED said they would appeal against the judgments. Naturally, they have to appeal because by this judgment it is their reputation that has taken the worst beating because they failed to convince by their arguments that a prima facie case existed against all the accused in the 2G scam!  
                                       To be sure, at the end of his 1,500 pages order, Special CBI Judge Saini said that, “I have absolutely no hesitation in holding that the prosecution (CBI) has miserably failed to prove any charge against any of the accused, made in its well choreographed charge sheet.” It must be pointed out here that among the accused, it was Raja who had spent longest period – 15 months in jail during the trial. Kanimozhi was in jail for six months from May 21, 2011 to November 28, 2011. Without a doubt, their face looked cheerful and happy as they have finally got a long-awaited respite. They cannot be faulted because this is what they were looking for.    
                                         To put things in perspective, the fifteen other accused allowed to walk free include former Telecom Secretary Siddharth Behura, Raja’s erstwhile private secretary RK Chandolia, Swan Telecom promoters Shahid Usman Balwa and Vinod Goenka, Unitech Ltd MD Sanjay Chandra and three top executives of Reliance Anil Dhirubhai Ambani Group (RADAG) – Gautam Doshi, Surendra Pipara and Hari Nair. Saini, whose court came into being on March 14, 2011 for hearing 2G cases exclusively, also, acquitted Essar Group promoters Ravi Kant Ruia and Anshuman Ruia and six others in a separate case arising out of the 2G scam probe. Besides Ruias, Loop Telecom Promoters IP Khaitan and Kiran Khaitan and Vikash Saraf, one of the Essar Group Directors, Loop Telecom Ltd, Loop Mobile (India) Ltd and Essar Teleholding Ltd also were acquitted.
                                          It is noteworthy that the CBI had alleged that there was a loss of Rs 30,984 crore to the exchequer in allocation of licences for the 2G spectrum which were scrapped by the top court on February 2, 2012. Raja and Kanimozhi  who is daughter of DMK supremo M Karunanidhi were also let off in another case lodged by the ED under the money laundering law arising out of the 2G scam. It is certainly by all accounts a great relief for them!
                               It would be pertinent to mention here that in its chargesheet, the ED had also named DMK supremo M Karunanidhi’s wife Dayalu Ammal as an accused in the case in which it had alleged that Rs 200 crore was paid by Swan Telecom (P) Ltd (STPL) promoters to DMK-run Kalaignar TV. Along with them, 16 others, including Shahid Balwa and Vinod Goenka of STPL, Asif Balwa and Rajiv Aggarwal of Kusegaon Fruits and Vegetables Pvt Ltd, film producer Karim Morani, P Amirtham and Sharad Kumar, Director of Kalaignar TV, were also acquitted in the money laundering case.
                                      In hindsight, the Judge did not pay much significance to nearly Rs 200 crore transferred to DMK controlled Kalaignar TV by some of the accused persons and companies. He dismissed the transaction saying none of the accused persons claimed that it  was part of illegal gratification in lieu of alleged favour granted to them by Raja. The Judge also find no illegality in the Raja’s decision to advance the cutoff date for receiving application for grant of licences from October 1, 2007 to September 25.
                                  What also cannot be missed out here is that though the Department of Telecom gave just one hour for the applicants to submit their bids, leading to a chaos and scuffle, Judge Saini justified the decision. He also took no notice of the fact that the one-hour time, without any prior notice was too short for any bidder to procure a bank draft ranging from Rs 200 crore to Rs 500 crore. Brushing aside this damning accusation against Raja, Saini went on to justify the decision, saying, “A non-serious player, who had no financial resources, would block the way of a serious player by claiming early mover advantage. This was the main disadvantage of determining seniority by date of application and as such, it was injurious to the interest of serious players, who had the financial resources to execute the telecom project.”
                                      It also cannot be lost on us that Judge Saini also said that whenever an officer wanted to delay an application, “he would wrap it up in the mantle of first-come first-served, that is, unless earlier application was disposed of, the next will have to wait despite no fault of his own.” He said change of criteria was a facilitating innovation. The Judge also seemed to be impressed by the allegations made by the accused persons against prime witness Aseervadam Achary about his political motives. The court rubbished its testimony saying explicitly that, “He was a man with political testimony and used to think of joining political party.”   
                             Be it noted, Justice OP Saini said that, “Prosecution became highly cautious and guarded as case progressed. It was difficult to find out what the prosecution wanted to prove. The quality of prosecution totally deteriorated and it became directionless and diffident in the end.” It was also held that, “When defence started arguments, they kept filing written submissions contemporaneously with their oral submissions. Not only this, the most painful part is that the Special Public Prosecutor was not ready to sign the written submissions filed by him. What is the use of a document in a court of law, which is not signed by anyone? When questioned as to why the Special Public Prosecutor was filing unsigned written submissions, his reply would be that some defence advocates had also not signed the written submissions.”  
                                      While acquitting A Raja, Ms Kanimozhi and 15 others, including 4 companies, of all the charges in the CBI case, Special Court Judge OP Saini said that, “There is no evidence on the record produced before the court indicating any criminality in the acts allegedly committed by the accused persons relating to fixation of cut-off date, manipulation of first-come, first-served policy, allocation of spectrum to dual technology applicants, ignoring ineligibility of Swan Telecom Pvt Limited (STPL) and Unitech group companies, non-revision of entry fee and transfer of Rs 200 crore to Kalaignar TV (P) Limited as illegal gratification.”

                                       The Judge minced no words in stating quite explicitly that, “Prosecution became highly cautious and guarded as case progressed. It was difficult to find out what the prosecution wanted to prove. The quality of prosecution totally deteriorated and it became directionless and diffident in the end.” In his judgment acquitting all the accused in the 2G spectrum case on December 21, Special Judge OP Saini said that, “Everything happening in the Department of Telecom (DoT) then was known to several other companies – and that there was no secrecy and sanctity. Everything taking place in DoT was conveyed by officials concerned to each company in advance.’
                                  It was also held by the Judge that, “Everything was leaking in DoT. There was no secrecy or sanctity. Who is responsible for it? There is no evidence. In such a situation, no blame can be cast on any of the accused alone. In such a scenario where every official information was being leaked, it cannot be argued that a specific information was conveyed to a specific company by a specific individual, unless there is a definite evidence on this point. It is all in the realm of speculation.”
                                       Furthermore, the Judge also while exonerating Raja and all others of any wrongdoing held that, “It is clear that the Ministry of Finance was not very enthusiastic about its objections regarding pricing of initial spectrum/revision of entry fee. Moreover, [the then] Finance Secretary admitted that after receipt of reply of DoT, they did not pursue their objections seriously. If the Finance Ministry had been serious, and Sh. A Raja was not heeding its query for revision of entry fee, the matter must have been reported to the Cabinet Secretariat or PMO.”
                                      The Judge accepted the defence contention that nowhere had the Telecom Regulatory Authority of India (TRAI) recommended revision or indexation of entry fee. Nor had it recommended auction of spectrum. The Judge said: “No witness had deposed that TRAI had recommended revision of entry fee for 2G spectrum, except Nripendra Misra, a former Secretary Telecom, and a former TRAI Chairman. However his view is not supported by the contents of the recommendations.”
                                      The Judge also made it clear in the 1552 page judgment that, “The chargesheet is based mainly on misreading, selective reading, non-reading and out-of-context reading of the official record. Further, it is based on some oral statements made by the witnesses during investigation, which the witnesses have not owned up in the witness-box.” He also said that, “Proceeds of crime is the foundational fact for the offence of money laundering. Since there are no proceeds of crime, there can be no offence.” He concluded by saying that, “The end result of the above discussion is that, I have absolutely no hesitation in holding that the prosecution has miserably failed to prove any charge against any of the accused, made in its well choreographed chargesheet. Accordingly, all accused are entitled to be acquitted and are acquitted.”     
                              Eminent Supreme Court senior lawyer KTS Tulsi while hailing the judgment said that, “A truckload of documents did not have anything on the basis of which it could be said that the ineligibility of Swan or Unitech was ignored or Raja’s link with transfer of Rs 200 crore to Kalaignar could be established. The court accepted the statement of D Subbarao, referred to as a sterling witness, for coming to the conclusion that there was no loss to the exchequer and at best it was only some sacrifice of revenue (for the benefit of poor subscriber). Once the court came to the conclusion that A Raja was not responsible for change of policy with regard to the cut-off date and its change from first come first serve to first paid, there was virtually nothing left in the case. On detailed careful scrutiny of the files, their notings and evidence of the authors of those notings, the court came to the conclusion that there was no interference by any of the accused persons in processing the files. In addition to that, the court found that in fact Raja passed the correct order and that for the change of policy, DS Mathur was responsible. Moreover, the Solicitor General of India had approved the decision with regard to the change of policy of first come first serve from date of application to date of payment. Thus, it was almost impossible for Raja to be held responsible for the same.”
                                  But Special Public Prosecutor Anand Grover who was appointed after SPP and senior advocate UU Lalit was appointed as a Judge of the Supreme Court is not happy with the judgment. He said the trial Judge made silly mistakes in even reading the basic document, the chargesheet. He asked: “If the chargesheet was faulty, why did he frame charges at all? He should have discharged all the accused only on that ground. No trial Judge proceeds with the trial after finding the chargesheet faulty.”
                              He said the trial Judge appeared to have completely missed the tabular chart provided by CBI detailing the transfer of Rs 200 crore by Dynamics, a real estate company to Kusegaon, a fruit and vegetable trader, which had no business. The money was then transferred to Cineyug Films to be finally routed to Kalaignar TV. He said that, “The money trial was vivid and detailed. The motive was clear. The tabular chart provided by CBI during trial proceedings clearly brought out the sequence and motive behind the payments. Yet, the chart does not even get referred to by the trial Judge. This is strange process of accused getting acquitted.”
                                He further added that it was the cardinal duty of the trial Judge to look for facts in the midst of the jungle for documents. He lamented that, “But, the Judge preferred to go by the contradictory and varying explanations given by the defence lawyers on the money trial. The trial Judge made so many mistakes.”
                                All said and done, the decision by the learned Judge has to be accepted by one and all as binding unless and until it is overturned by the higher court. But one thing is quite clear: CBI and ED miserably failed in doing its homework properly. The outcome of the case could have been different if the CBI and ED had been more serious in pursuing the case right from day one!
                                   Severely castigating the CBI for putting “no question” to any witness that a “transaction of Rs 200 crore was a transaction of illegal gratification linked to (UPA telecom minister) A Raja” in the allocation of 2G spectrum in 2008, Special Judge OP Saini acquitted all accused charged with criminal breach of trust, conspiracy and cheating over alleged largescale irregularities in the allocation. Saini pulling up the CBI for “remaining silent” and “filing a well-choreographed chargesheet” and noting that the prosecutor had made it out to be a “case of high political corruption”, said: “I have endeavoured hard to persuade myself to take an expansive and liberal view of the prosecution case. However, in view of deficient, or I may say nil evidence on record, I find myself unimpressed and unmoved, whatever may be nature of the case. High profile nature of a case cannot be used as a ground for holding people guilty without legal evidence.”   
                                           What a pity that the CBI Special Judge OP Saini had to say that, “I may also add that for the last about seven years, on all working days, summer vacation included, I religiously sat in the open court from 10 am to 5 pm, awaiting for someone with some legally admissible evidence in his possession, but all in vain…Not a single soul turned up. This indicates that everybody was going by public perception created by rumour, gossip and speculation. However, public perception has no place in judicial proceedings.”
                             This shows how well prosecution, CBI and ED were prepared in such a high profile case! It is really tragic! In a veiled reference to the Comptroller and Auditor General’s estimate of a presumptive loss of Rs 176,000 crore to the exchequer in grant of 2G licences, Special Judge OP Saini said categorically that, “Some people created a scam by artfully arranging a few selected facts and exaggerating things beyond recognition to astronomical levels and a huge scam was seen by everyone where there was none. These are only a few examples of how policy issues are strewn around here and there in a disorderly manner. Because of this, it becomes very difficult for outside agencies and institutions to understand issues in proper perspective, leaving scope for controversy.” Centre must spell out all its policy issues clearly so that no such stinging remarks are required to be made by any Judge again as we see most unfortunately here in such a high profile case!       

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.04411111111111111
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