Daily Legal Current Affairs 14 May 2024, Judiciary Exam Current Affairs

Salim Malik @ Munna v. State of National Capital Territory of Delhi

• Bench: Justices Bela Trivedi and Pankaj Mithal

• Facts

• The HC division bench comprising Justice Suresh Kumar Kait and Justice Manoj Jain had earlier observed that there was enough material on record which clearly indicated that Malik was a co-conspirator and committed the offence for which he was chargesheeted.

• The present Special Leave Petition was filed challenging the Delhi High Court's judgment, delivered in April 2024, which denied bail to Malik, who has been under custody since June 2020

• Observations

• The Supreme Court allowed Salim Malik, an accused in the UAPA case over alleged larger conspiracy behind the 2020 Delhi riots, to withdraw his petition seeking bail.

• After the bench expressed reservations about entertaining the matter after hearing the petitioner's arguments for some time, Senior Advocate Salman Khurshid, the petitioner's lawyer, sought permission to withdraw the petition. Accordingly, the petition was dismissed as withdrawn.

• Bench: Justices AS Oka and Ujjal Bhuyan

• Facts

• • The appellant company was sent an order imposing and demanding environmental compensation of Rs.46,67,80,837 by the Uttar Pradesh Pollution Control Board, Kanpur Dehat (UPPCB) for allegedly dumping hazardous waste containing chromium at a village in the area.
  • The said order was then challenged before the NGT (National Green Tribunal) in an appeal.
  • The main issue before the NGT was to consider whether the appellant was liable under the Water Act 1974, Air Act 1981 and Hazardous Waste (Management & Handling) Rules, 1989 for the dumping of hazardous chromium and the nature of action to be taken against it.
  • In deciding so, the Tribunal noted that the Prevention of Money Laundering Act, 2002 (PMLA) consists within its ambit offences under environmental norms by way of Section 30 of the PML (Amendment) Act, 2012.
  • These offences include Offences under The Biological Diversity Act, 2002; Offences under The Environment Protection Act, 1986; Offences Under The Water (Prevention And Control Of Pollution) Act, 1974 and Offences under The Air Act 1981.
  • The Tribunal observed that the process of production of materials consequently led to the hazardous discharge and violation of scheduled offences under S.3 of the PMLA (offence of money-laundering).
  • The Tribunal reasoned that the revenue proceeds of the appellant constituted as the proceeds of crimes of environmental character as included under Schedule A of the PMLA and the appellants were thus liable for action under the PMLA.
  • In the present case, when environmental norms were not followed, by not operating Effluent Treatment Plan (ETP) or by discharging partially or totally untreated pollutant or by causing other violations, this resulted in commissioning of Scheduled offence and revenue earned by committing such crime is proceeds of crime as defined in PMLA 2002 and by showing it part of business proceeds in accounts amounts to projecting or claiming it as untainted property. The entire activity is covered by Section 3 of PMLA 2002.
  • The NGT thus proceeded to initiate legal action against the appellants under the provisions of the PMLA.
  • The appellants were further directed to comply and pay an environmental compensation of Rs.25,39,68,750/- failing which they would face recovery proceedings.

• Observations

• The Supreme Court stayed the direction of the National Green Tribunal (NGT) to initiate action under the Prevention of Money Laundering Act 2002 (PMLA) against the appellant company for actions related to dumping of hazardous waste in violation of environmental norms.

• The Court noted that the NGT lacked jurisdiction to pass any such direction and further stayed the order to pay environmental compensation of Rs. 25,39,68,750/-.

• The bench in their order issued notice to the challenge against the impugned NGT directions and observed the following :

• "Prima facie, we are of the view that the National Green Tribunal had no jurisdiction to issue a direction to initiate action under the Prevention of Money Laundering Act, 2002 against the appellant.

• The Apex Court further stated that, in view of the above discussion, we allow Appeal partly in the manner as under:
  • Appellant shall pay and deposit environmental compensation of Rs. 25,39,68,750/- (Rs. twenty five crores, thirty nine lacs, sixty eight thousands, seven hundred and fifty only) with UPPCB within three months, failing which, recovery proceedings in accordance with law, shall be initiated by the Competent Authority without any further delay...."
• The matter will now be heard by the Apex Court on August 5.

• Bench: Justices Hrishikesh Roy and Prashant Kumar Mishra

• Facts

• Before the bench of Justices Revati Mohite Dere and Manjusha Deshpande of the Bombay High Court, the petitioner claimed that he was made to wait in the office of the ED and his statement was recorded from 10:30 pm till 3:00 am.

• He alleged that he was interrogated all night despite being medically unfit, violating his fundamental right to sleep. The High Court deprecated the late-night recording of the petitioner's statement, which continued until 3:30 am.

• • The Court highlighted that under Section 50 of the PMLA, a summoned person is not necessarily an accused but could be a witness or someone associated with the offence being investigated.
  • The impugned order stressed that investigation under the PMLA differs from that under the CrPC and stated that statements under Section 50 should be recorded during reasonable hours, respecting the individual's right to sleep.
  • The court noted that the petitioner had previously cooperated with investigations and could have been summoned on a different day.

• Observations

• The Supreme Court has issued notice in a plea challenging the legality of arrest of a person by the Enforcement Directorate who was summoned for interrogation late night and arrested the next morning while in confinement of the authorities.

• The main question that arose was whether the moment a person's liberty is confined by the authorities, it could be deemed as an official arrest, irrespective of the timing recorded in the arrest memo.

• The petitioner was summoned by the ED at its office in Delhi at 10:30 PM on August 7, 2023. The senior counsel submitted that the petitioner's mobile phone was taken away and he was then subjected to intensive interrogation. The petitioner was represented by Senior Advocate Mr Kapil Sibal.

• It was pointed out that though he was in confinement of the officers of the ED since 10:30 PM of 7.8.23, the petitioner was shown as arrested only at 5:30 AM the next day i.e., 08.08.2023. This, Mr Sibal argued, was a blatant violation of Article 22(2) of the Constitution which provides that a person arrested and detained in custody is to be produced before the Magistrate as soon as possible.

• It was emphasized by Mr Sibal that it has been ruled by various High Courts that a person is assumed to be arrested from the moment his liberty is curtailed and the official time of arrest as reflected in the investigating agency's arrest memo is immaterial.

• He informed the bench that the larger question of law regarding when a person should be deemed to be arrested is pending before the Supreme Court in the case ED v. Pranav Gupta SLP(Crl) No. 003214 - 003215 / 2024.

• Bench: Justices P.S. Narasimha and Aravind Kumar

• Observations

• • In an important ruling relating to consumer protection law, the Supreme Court has set out the manner in which the consumer forum must decide technical pleas raised by service providers against the maintainability of the consumer complaints on the ground that goods/services were availed by the consumer for the commercial purposes.
  • Affirming the decision of the National Consumer Dispute Redressal Commission (“NCDRC”), the bench observed that unless it is proved by the service provider that the goods/services were availed for the commercial purpose by the consumer, the service provider cannot dispute about the maintainability of the consumer complaint.
  • The Consumer Protection Act 1986 bars the maintainability of the consumer complaint against the service providers if the services are availed by the consumer for the commercial purpose; however, the law carves out an exception that the complaint would be maintainable against the services availed by the consumer for the commercial purpose if the goods/services are availed by the consumer 'exclusively for the purpose of earning his livelihood, by means of self-employment'.
  • In the present case, the consumer complaint was filed by the respondent/consumer demanding the return of the subscription amount from the chit fund company/appellant when the appellant closed the business. The appellant contended that the consumer complaint wasn't maintainable since the respondent/consumer had availed the goods/services from the appellant for a commercial purpose.
  • Rejecting the appellant's contention, the judgment authored by Justice Aravind Kumar examined the definition of the consumer under Section 2(7) of the Consumer Protection Act 1986. It was noted that the definition has various parts namely:
    • The first part of the definition puts the onus of proving that the person had bought goods/availed services for consideration, on the complainant/consumer himself.
    • The second part carves out an exception that goods purchased or services availed for commercial purposes are not covered under the Act. The onus of proving this fact is on the service provider and not the complainant."The carve out clause, in the second part, is invoked by the service providers to exclude the complainants from availing benefits under the Act.The onus of proving that the person falls within the ambit must necessarily rest on the service provider and not the complainant. This is in sync with the general principle embodied in Section 101 and 102 of the Evidence Act that 'one who pleads must prove'.

• Since it is always the service provider who pleads that the service was obtained for a commercial purpose, the onus of proving the same would have to be borne by him. Further, it cannot be forgotten that the Consumer Protection Act is a consumer-friendly and beneficial legislation intended to address grievances of consumers. Moreover, a negative burden cannot be placed on the complainant to show that the service available was not for a commercial purpose."
• Once, the service provider satisfies the second part, then the third part of the definition puts an onus on the complainant to prove that the services availed by him weren't for the commercial purpose but exclusively to earn his livelihood.
  • "If and only if, the service provider discharges its onus of showing that the service was availed, in fact for a commercial purpose, does the onus shift back to the complainant to bring its case within the third part , i.e. the Explanation (a) to Section 2(7) – to show that the service was obtained exclusively for the purpose of earning its livelihood by means of self- employment."

• Testing the parameters in the present case, the court found that the service provider/appellant didn't satisfy the second part of the definition to prove that the consumer/respondent had availed the services for commercial purposes.
• “The question of inquiring into the third part will only arise if the service provider succeeds in crossing the second part by discharging its onus and proving that the service obtained was for a commercial purpose. Unless the service provider discharges its onus, the onus does not shift back to the complainant to show that the service obtained was exclusively for earning its livelihood through the means of self-employment. In the facts of this case, the service provider has merely pleaded in its version that the service was obtained for a commercial purpose.
• No evidence has been led to probabilise its case other than merely restating its claim on affidavit. It is now well too settled that a plea without proof and proof without plea is no evidence in the eyes of law.”, the court said.
• Based on the above premise, the court dismissed the appeal while upholding the impugned order which noted that there was a deficiency of service on the part of the appellant/service provider.

• Court: Delhi High Court

• Bench: Justice Sachin Datta

• • Facts

• The present petition sought a direction on the Election Commission of India (ECI) to take immediate action in accordance with law including filing of FIRs against candidates delivering hate speeches in violation of MCC.

• • The plea referred to the Prime Minister's speeches delivered in Rajasthan and Madhya Pradesh. It also refers to the tweets made by BJP Chief JP Nadda and a speech delivered by Union Minister Anurag Thakur in Himachal Pradesh on April 27, 2024.
  • The plea submitted that despite a large number of complaints by several citizens, including the petitioner, ECI has failed in taking any effective action.

• “This inaction on the part of the Respondent is manifestly arbitrary, malafide, impermissible and constitutes a violation of its constitutional duty. It amounts to rendering the MCC futile, the very purpose of which is to ensure that communal harmony and the spirit of brotherhood is not given a go-by by candidates to secure victory in the elections,” the plea stated.
• It added that the “omissions and commissions” by ECI are not only in complete and direct violation of Articles 14, 21 and 324 of the Constitution of India but are also “impeding free, fair and unbiased General Elections.”
• It was submitted that a bare perusal of the aforementioned speeches, that are readily available and are being widely circulated on social media platforms, sufficiently establishes their communally inciteful nature.
• The Respondent’s failure to take expeditious action is violative of the Representation of People Act, 1951, The Conduct of Election Rules, 1961 as well as the Constitution of India,” the plea stated.

• Observations

• The Delhi High Court rejected a plea seeking immediate action against Prime Minister Narendra Modi and other candidates for delivering allegedly “communally divisive speeches” in violation of the Model Code of Conduct amid the Lok Sabha polls.

• The Delhi High Court held that it found no merit in the petition and the same was dismissed.

• While rejecting the plea, the court said that it has earlier also observed that any presupposition by the petitioner is unjustified.“This court is of the view that at this stage, the petition is misconceived. The ECI can take an independent view on the complaint of the petitioner in accordance with law. There is no merit in the petition. The same is accordingly dismissed,” the court said.

• Bench: Justices Sanjiv Khanna and Dipankar Datta

• Facts

• The genesis of the case lies in a public interest litigation filed by respondent Sandeep Kumar before the Delhi High Court. This PIL sought a writ of Quo - warranto against Kejriwal, to show by what authority, qualification and title, he continued to hold the office of the Chief Minister of Delhi under Article 239AA of the Constitution. It further sought the AAP leader's dislodging from the office of CM, after inquiry.

• The petitioner claimed that Kejriwal, who was in judicial custody over the Delhi Liquor Policy case, had incurred incapacity to carry out his Constitutional obligations and functions under Articles 239AA (4), 167(b) and (c) of the Constitution. Hence he could no longer function as the Chief Minister.

• He also averred that the Delhi Lieutenant Governor was being prevented from discharging his Constitutional obligations under Article 167(c) of the Constitution due to the absence of access to the Chief Minister.

• On April 10, 2024 the High Court dismissed this PIL while imposing a cost of Rs.50,000/-, being of the view that it was aimed at gaining publicity. It was noted that the petitioner pursued the petition despite being aware of three orders passed by the court denying identical prayers.

• Observations

• The Supreme Court dismissed a petition seeking the removal of Aam Aadmi Party chief Arvind Kejriwal from the post and office of Chief Minister, Delhi because of his arrest by the Enforcement Directorate in the liquor policy case.

• The bench of said that the Court was not inclined to interfere with the Delhi High Court's judgment dismissing the plea to remove Kejriwal as the Chief Minister of Delhi.

• The bench also pointed out that the petitioner who approached the Supreme Court, Kant Bhati, was not the petitioner before the High Court.

• • The bench dictated the order stating "We are not inclined to interfere with the impugned judgment. The Special Leave Petition is dismissed,"

• Bench: Justices Sanjiv Khanan and Dipankar Datta

• Observations

• The Supreme Court will hear a plea seeking directions to the Election Commission of India to publish the absolute numbers of votes polled immediately after the elections.

• The plea has been filed by non-profits organization Association for Democratic Reforms (ADR) and Common Cause. When Advocate Prashant Bhushan mentioned the case before a bench for urgent listing,

• Justice Khanna clarified that the matter will be taken up on May 17, 2024.

• In their application, the petitioners have stated that in the ongoing Lok Sabha elections, the ECI published voter turnout data after several days. The data regarding the first phase of polling held on April 19, 2024 was published after 11 days and the second phase of polling held on April 26, 2024 was published after 4 days. Also, there was a variation of over 5% in the final voter turnout data from the initial data released on the polling day.
• The application has been moved as an Interlocutory Application in the writ petition filed in 2019 alleging discrepancies in the voter turnout data regarding the 2019 General Elections.
• The petitioners seek direction to the ECI to :
  • Immediately upload on its website scanned legible copies of Form 17C Part-I (Account of Votes Recorded)of all polling stations after close of polling of each phase in the on-going 2024 Lok Sabha elections.
  • Provide tabulated polling station-wise data in absolute figures of the number of votes polled as recorded in Form 17C Part- I after each phase of polling in the on-going 2024 Lok Sabha elections and also a tabulation of constituency-wise figures of voter turnout in absolute numbers in the on-going 2024 Lok Sabha election.
  • To upload on its website scanned legible copies of Form 17C Part- II which contains the candidate-wise Result of Counting after the compilation of results of the 2024 Lok Sabha elections.