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InWrit Petition (Criminal) No(s). 520 of 2022 -SC- Supreme Court orders immediate release of convict in 1996 rape-murder case
Justice S. Ravindra Bhat & Justice Dipankar Datta [21-09-2023]

Read Order:Joseph V. The State of Kerala &Ors


Chahat Varma


New Delhi, September 26, 2023: The Supreme Court has recently ordered the immediate release of a man who had been serving a life imprisonment sentence for rape and murder committed in 1996.


During the hearing, it was brought to the court’s attention that the petitioner's case had been reviewed by the Advisory Committee/Jail Advisory Board under the Kerala Prison Rules, 1958 and the Kerala Prisons and Correctional Services (Management) Rules, 2014. These reviews had taken place on nine separate occasions, and notably, the Board had recommended the petitioner's premature release three times. However, the state government had declined his request for premature release on all three occasions.


In the said case, the petitioner had approached the court seeking to enforce his right under Article 32 of the Constitution of India. He sought an appropriate direction to the state government to prematurely release him, having been in custody for over 26 years and having served a sentence of over 35 years, which included more than 8 years of remission earned.


It was alleged that the petitioner had visited his sister-in-law's (the deceased victim) workplace and, under false pretences that her mother was seriously ill and hospitalized, convinced her to leave with him. According to the prosecution, he made her walk along the railway line and, at a secluded location, allegedly raped her, stole the jewellery she was wearing, and then left her on the tracks to be runover by a passing train.


The division bench of Justice S. Ravindra Bhat and Justice Dipankar Datta noted that the prison laws in India, when read with Articles 72 and 161 of the Constitution, are rooted in a profound rehabilitative objective. It was emphasized that implementing a guideline that automatically denies the consideration of a premature release request from a convict who has served more than 20 or 25 years, solely based on the nature of the crime committed in the distant past, would effectively extinguish any hope of reformation and a fresh start for such an individual.


Excluding the relief of premature release to prisoners who have served extremely long periods of incarceration, not only crushes their spirit, and instils despair, but signifies society’s resolve to be harsh and unforgiving,” said the division bench.


The bench also took note of Rule 376 of the 2014 Rules, which stipulates that prisoners can earn remission for displaying peace and good behaviour while incarcerated. It was noted that according to the state's records, the petitioner had earned over 8 years of remission, indicating his exemplary conduct while serving his sentence. Additionally, the minutes of the meetings of the Jail Advisory Board provided positive assessments of the petitioner, describing him as hardworking, disciplined, and a reformed inmate.


Therefore, in the interest of justice, the court deemed it appropriate to order the immediate release of the petitioner.

InCrl. A. 286/202 -DEL HC- Delhi High Court upholds order denying bail to accused charged with providing shelter to terrorists
Justice Siddharth Mridul & Justice Anish Dayal [22-09-2022]

Read Order:Suhail Ahmad Thokar V. National Investigation Agency


Chahat Varma


New Delhi, September 26, 2023: The Delhi High Court has dismissed the bail appeal of an accused booked under the Unlawful Activities (Prevention) Act (UAPA) for allegedly providing shelter to members of terrorist organizations.


The present appeal had challenged the order dated January 7, 2023, passed by the Special Judge (NIA), related to a case registered by the National Investigation Agency (NIA) under Sections 120B, 121A, 122, and 123 of the Indian Penal Code (IPC), as well as under Sections 18, 18A, 18B, 20, 38, and 39 of the UAPA. The order in question pertained to the dismissal of the bail application filed on behalf of the appellant.


The prosecution's case revolved around the registration of an FIR, following an intelligence received, regarding a larger conspiracy taking shape in the Kashmir valley. According to the prosecution, this conspiracy had dual dimensions, both in the physical realm and the digital domain, and was allegedly orchestrated by proscribed terrorist groups, including Lashkar-e-Taiba (LeT), Jaish-E-Mohammed (JeM), Hizb-ul-Mujahideen (HM), Al-Badr, and others. It was further claimed that these terrorist groups, in collaboration with their facilitators and leaders based in Pakistan, as well as their Over-Ground Workers within India, were actively involved in influencing and radicalizing vulnerable local youth. The prosecution alleged that this conspiracy was hatched following the revocation of Article 370, with the primary objective of reigniting acts of terrorism in Jammu and Kashmir and other parts of India. According to their case, the appellant played an active role in providing shelter to members of the aforementioned terrorist organizations and their associates within his residence, with the assistance of his acquaintances. Consequently, the appellant was arrested on October 20, 2021, and a chargesheet was filed against him and co-accused individuals.


The division bench of Justice Siddharth Mridul and Justice Anish Dayal observed that at the stage of bail under the UAPA it is a well-established practice that a comprehensive or in-depth examination of the evidence is not required. Instead, the court's role is to establish findings based on general probabilities regarding the accused's potential involvement in the alleged offense.


The bench noted that upon the appellant's arrest, two mobile phones were confiscated from his possession. An analysis report of the digital data extracted from these seized mobile phones, conducted by Cert-In, revealed the presence of images associated with deceased militants and terrorist organizations.


The bench further took note of the appellant's disclosure statement, wherein the appellant affirmed that he had a previous association with the militant Rouf Dar. Additionally, he disclosed that he had provided assistance to militants Rouf Dar and Walid by arranging accommodation for them in his hometown.


The bench emphasized that the UAPA mandates proactive measures against organizations that present a threat to national security. Once an organization is designated as unlawful under the UAPA, any individual associated with it can be prosecuted for offenses outlined within the Act, in addition to any relevant criminal statutes.


The bench placed reliance on Arup Bhuyan versus State of Assam and Anr. [LQ/SC/2023/329], where the Supreme Court had expressed the view that mere membership in a banned organization constitutes an offense under the UAPA.


Thus, the court concluded that, after carefully considering the provisions of the UAPA and evaluating the material included in the charge-sheet, along with a collective assessment of the evidence and a preliminary analysis of its probative value, there were prima facie reasonable grounds to believe in the truth of the allegations against the appellant.


Accordingly, the present appeal was dismissed.

InCUSAA 2/2022 -DEL HC- Delhi High Court holds that customs brokers are not obligated to report offenses committed by importer firms after goods are cleared
Justice Yashwant Varma & Justice Manmeet Pritam Singh Arora [25-09-2023]

Read Order:D S Cargo Agency V. Commissioner of Customs


Chahat Varma


New Delhi, September 26, 2023: In a favourable ruling for D S Cargo Agency (appellant), the Delhi High Court has clarified that a Customs Broker is not required to report an offense committed by an importer once the goods have been cleared and the Customs Broker's role in the clearance process has ended.


In summary, the appellant was a proprietorship firm owned by Mr. Diva Kant Jha, a Customs Broker. The appellant claimed to have interacted with an individual named Mr. Lalit Dongra on behalf of M/s Accturists Overseas (OPC) Pvt. Ltd., and all inquiries related to filing B/Es were directed by Mr. Sanjeev Maggu, who represented himself as the Chief Manager of the three importer firms. On July 14, 2017, the Directorate of Revenue Intelligence (DRI) received information suggesting that the importer firms were evading customs duties by diverting imported goods stored in the customs bonded warehouse into the domestic market without paying the applicable customs duty. It was also alleged that forged documents were used to indicate the re-export of the warehoused goods. Consequently, the Commissioner issued an order-in-original on February 4, 2019, revoking the appellant's CB license, forfeiting the security deposit, and imposing a penalty. This action was taken as the appellant had allegedly failed to fulfil its obligations under the Customs Brokers Licensing Regulations, 2018 (CBLR, 2018)along with Customs Brokers Licensing Regulations, 2013 (CBLR, 2013)and had acted in contravention of these regulations. Subsequently, the appellant filed a Customs Appeal before the Customs, Excise and Service Tax Appellate Tribunal (Tribunal). However, the Tribunal, in its order dated March 26, 2021, upheld the Commissioner's order-in-original.


The key question at hand was whether the appellant, under the CBLR, 2018 read with the CBLR, 2013, held a responsibility to report an offense related to goods stored in a bonded warehouse after the goods had been imported and the Customs Broker's professional involvement in clearing the goods had concluded.


The division bench of Justice Yashwant Varma and Justice Manmeet Pritam Singh Arora recognized that the appellant's obligation in the given circumstances was limited to facilitating the clearance of goods for warehousing at the Customs Station, and no further. Therefore, the appellant's role as a Customs Broker concluded once the imported goods, after being cleared at the Customs Station, arrived at the public bonded warehouse. The imported goods intended for re-export were stored at these public bonded warehouses, and the illegality committed by the importer firms occurred when they diverted these goods into the domestic market without paying the required customs duty. The bench acknowledged that the appellant had no role to play at this subsequent stage when the importer firms submitted false documents for re-export to the Customs authorities.


The bench further observed that the evidence showed that the individuals in control of the importer firms had acted independently when they conspired to defraud the revenue. There was no indication that they were acting under the guidance or advice of the appellant.


The bench also noted that the Supreme Court, in the case of Collector of Customs, Cochin v. Trivandrum Rubber Works Ltd., Chacki [LQ/SC/1998/1083], held that a Customs Broker serves as an agent for the specific purpose of arranging the release of goods. Once the goods are cleared, the Customs Broker has no further role, and they are not liable for any duty, liability, or actions that should be taken exclusively against the importer.


Thus, the bench ruled that the appellant was not obligated to report an offense committed by the importer firms concerning goods stored in the public bonded warehouse after the Customs Broker's professional duties in clearing the goods had concluded. Regulation 10(d) of CBLR, 2018 does not impose any such responsibility on the Customs Broker to report such offenses. The appellant's duty to bring issues of non-compliance to the attention of the Customs authorities was limited to the documents submitted by the Customs Broker during the clearance of goods from the Customs Station at the time of entry or departure. In this case, there was no finding that there was any error or discrepancy in the warehousing bill of entry submitted by the appellant at the Customs Station.


However, the bench did take note that the appellant failed to provide the KYC records of the importer firms to the DRI and Customs authorities, despite committing to do so. In the bench’s opinion, this inaction on the appellant's part did not warrant the imposition of the maximum punishment, which was the revocation of the license.


Therefore, in consideration of the principle of proportionality, the court determined that the orders of the Tribunal and the order-in-original, to the extent that they revoked the appellant's license and forfeited the security deposit, should be set aside. However, the penalty of Rs. 50,000 imposed by the orders was upheld.

InW.P. (CRL) 2408/2023 -DEL HC- Delhi High Court rejects Supertech promoter's plea for release in money laundering case
Justice Dinesh Kumar Sharma [22-09-2023]

Read Order:Ram Kishor Arora V. Director, Directorate of Enforcement &Anr


Chahat Varma


New Delhi, September 26, 2023: In a significant development, the Delhi High Court has rejected Supertech promoter Ram Kishor Arora's plea for immediate release in a money laundering case. The Court affirmed that his arrest by theEnforcement Directorate (ED)under the Prevention of Money Laundering Act (PMLA) was legal and justified.


In the matter at hand, the present petition was filed, seeking a writ, order, or directive to declare petitioner’s arrest as illegal and a violation of his fundamental rights guaranteed under Articles 14, 20, and 21 of the Constitution. The petitioner contended that the ED violated his fundamental rights by arresting him without informing him of the grounds for arrest and by denying him the right to consult and be defended by a legal practitioner of his choice. The petitioner argued that Section 19 of the PMLA was not followed in this case and sought his immediate release.


On the other hand, the ED argued that the statute mandates the grounds of arrest to be conveyed to the arrestee as soon as possible, and it is not a requirement for a copy of these grounds to be provided to the arrestee at the time of the arrest itself.


The single-judge bench of Justice Dinesh Kumar Sharma referred to the legal interpretation provided in the case of V. Senthil Balaji v. The State Represented by Deputy Director and Ors [LQ/SC/2023/803], particularly concerning Section 19 of the PMLA. It was established in this case that an authorized officer had to carefully assess and evaluate the material evidence in their possession. Through this assessment, they were required to form a reasonable belief that a person had committed an offense under the PMLA. Once this belief was formed, the authorized officer was empowered to carry out their mandatory duty, which included recording the reasons for the arrest. Furthermore, it was emphasized that this process had to be followed by informing the arrestee about the grounds for their arrest. The Supreme Court, in its judgment, made it clear that any failure to comply with the provisions of Section 19(1) of the PMLA would vitiate the arrest itself. The Apex Court explicitly stated that all the requisite mandates of Section 19(1) had to be followed in letter and spirit.


The bench also noted that in the PMLA, the legislature had chosen to use the term ‘informed’ without specifying any particular method for such notification in the statute or rules. In the absence of a prescribed mode of informing in the statute, the court determined that it should rely on common law principles. Consequently, the bench concluded that in the case at hand, the grounds for arrest were properly provided to the petitioner, and he acknowledged them in writing by signing them.


The bench also took note of the fact that there was no infringement of the petitioner's fundamental rights. There was no evidence to suggest that the petitioner had been denied the right to consult and be defended by a legal practitioner. Additionally, based on the discussion, there was no indication in the records that the ‘reason to believe’, as mandated under Section 19(1) of the PMLA, had not been properly recorded in writing.


Therefore, the courtconcluded that it cannot be held that petitioner was arrested illegally.

InCrl. A. 382/2020 -DEL HC- Delhi High Court grants bail to two former police officials convicted in Unnao rape victim's father's custodial death
Justice Dinesh Kumar Sharma [22-09-2023]

Read Order:Ashok Singh Bhadauria and Ors V. Central Bureau of Investigation


Chahat Varma


New Delhi, September 26, 2023: The Delhi High Court has granted bail to two former police officials, Ashok Singh Bhadauria and Kamta Prasad Singh, who were convicted for the custodial death of the father of the Unnao rape victim.


In the case at hand, appellant Ashok Singh Bhadauria (appellant no. 1) was found guilty of various offenses, including Sections 120B, 166, 167, 193, 201, 203, 211, 218, 323, 341, and 304 of the Indian Penal Code, 1860 (IPC), along with a violation of Section 3 of the Arms Act, 1959. Appellant Kamta Prasad Singh (appellant no. 2) was convicted under Sections 120B, 166, 167, 193, 201, 203, 211, 218, 323, 341, and Section 304 of the IPC, as well as Section 3 of the Arms Act. The present applications were filed, seeking suspension of the appellants' convictions, while the ongoing appeals were pending.


The single-judge bench of Justice Dinesh Kumar Sharma noted that it is an established legal principle that during the stage of suspending a sentence, the court's role is to primarily assess whether there are any glaring errors or flaws in the conviction order. However, this process does not entail reevaluating or reanalysing the evidence presented in the case.


The bench noted that, in cases of conviction and custody, especially those that do not involve life sentences, the broad parameter of 50% of the actual sentence undergone can be the basis for the grant of bail.



The bench further observed that considering the fact that there were pending appeals regarding the sentences already served by the accused individuals, it was on record that an appeal in the case was admitted on July 31, 2020. However, the court has been unable to conduct the hearing for these appeals thus far.


The bench also took note of the fact that the appellants had not misused the interim bail that had been periodically granted to them. According to the Nominal Roll, appellant no. 1 had served a sentence of approximately four years, eight months, and seven days, while appellant no. 2 had served a sentence of approximately four years, five months, and 28 days.


In the facts and circumstances of the case, as well as the duration of their incarceration, the court decided to grant bail to both appellants.

InWP(C) No. 25716 of 2023 -KER HC- Kerala High Court sets aside GST registration cancellation order, directs petitioner to appear before Superintendent of Central Tax & Central Excise
Justice Dinesh Kumar Singh [13-09-2023]

Read Order:Muhammad Salmanul Faris K V. The Superintendent


Chahat Varma


New Delhi, September 26, 2023: The Kerala High Court has set aside an order cancelling the GST registration of a petitioner, holding that the competent authority had taken an independent decision without following the due process of law.


The petitioner had filed the present writ petition, challenging an order, that cancelled their GST registration. The cancellation was primarily based on allegations that the petitioner had issued invoices and bills to other dealers without actually supplying goods or providing services, which was deemed a violation of the Goods and Services Tax Act (GST Act) and Rules.


In the said case, a communication was sent to the petitioner, referring to the investigation initiated by DGGI, Kochi Zonal Unit into a fake invoicing cartel. This communication indicated that the petitioner was allegedly involved in fraudulently availing fake input tax credit from multiple firms. Consequently, the Deputy Director of DGGI, Kochi Zonal Unit had requested the Range Officer in Ottapalam to cancel the petitioner's GST registration. After the notices and opportunities for personal hearings, the GST registration was ultimately cancelled.


The petitioner's counsel argued that the cancellation order was issued without following the due process of law and was against the provisions of the GST Act and Rules.


On the other hand, the department's counsel argued that the cancellation was based on evidence of a large cartel engaged in fraudulent input tax credit claims. They claimed that the petitioner had the opportunity to present evidence and dispute the allegations during the personal hearing but failed to do so.


The bench of Justice Dinesh Kumar Singh found that there was no dispute over the fact that the DGGI, Kochi Zonal Unit had already made a decision to cancel the petitioner's GST registration. Therefore, the bench was of the opinion that the competent authority was only expected to follow the formal procedures, and they should not have made an independent decision.


With the above observations, the Court decided to set aside the impugned cancellation order and directed the petitioner to appear before the Superintendent of Central Tax & Central Excise, on September 18, 2023. The petitioner was required to bring relevant records to dispute the allegations contained in the show cause notice. The court held if the show cause is cancelled, the petitioner would be entitled for restoration of the GST registration certificate. However, if the authority takes a decision to cancel the GST registration of the petitioner, he may take recourse to appropriate proceedings as available under law.


The court provided a clarification that the Superintendent of Central Tax should make an independent decision without being influenced by the direction of the DGGI, Kochi Zonal Unit.

In Advance Ruling No. 31/AAR/2023 -AAR- Treated effluent water sold by M/s Sirupooluvapatti Common Effluent Treatment Plant exempt from GST, rules AAR (Tamil Nadu)
Members D Jayapriya (Member CGST) & N. Usha (SGST) [30-08-2023]

Read Order: In Re: Sirupooluvapatti Common Effluent Treatment Plant Private Limited


Chahat Varma


New Delhi, September 26, 2023: The Tamil Nadu bench of the Authority for Advance Rulings has ruled that the treated effluent water, sold by M/s Sirupooluvapatti Common Effluent Treatment Plant Private Limited (applicant), was exempt from GST.


In the present case, the applicant had submitted that they were a common effluent treatment plant engaged in rendering hazardous waste treatment and disposal services. They planned to buy the effluents from dyeing units and have the effluents delivered from the dyeing units to the applicant through pipelines. The effluent would then be processed at the plant, and the resultant treated water was intended to be sold to the dyeing units. The applicant sought an advance ruling on the appropriate classification of the treated water that would be sold by the applicant, after various treatment processes had been carried out on the purchased effluent water, and they also inquired about the applicable GST rate on the said treated water that would be sold by the applicant.


The two-member bench of D Jayapriya (CGST) and N. Usha (SGST) observed that, upon reviewing the processes carried out by the applicant, the effluent water had undergone micro-filtration and sand filtration processes to eliminate suspended impurities. Subsequently, a series of RO units had been employed to remove minerals. Despite the RO treatment, the TDS level of the treated water remained high. In the case of the applicant, the recovered water still contained chlorides, sulphates, bicarbonates, and other substances. According to the test report, the TDS level of the treated water was measured at 616 mg/l, clearly indicating that the treated water did not meet the standard norms for demineralized water. Therefore, it was evident that the treated water could not be classified as demineralized water.


Therefore, the bench affirmed that the water recovered from the effluent treatment process was essentially ordinary water, suitable for reuse by dyeing and bleaching units as a solvent and washing or rinsing medium. Consequently, it was deemed to be appropriately classified under Sl. No. 99 of Notification No. 02/2017, CT (Rate), dated 28.06.2017, falling under the heading 2201, rather than Sl. No. 24 of Notification No. 01/2017-Central Tax (Rate), also dated 28.06.2017, but under the same heading 2201.


Furthermore, the bench noted that in accordance with Circular No. 179/11/2022 dated 03.08.2022, issued by the Ministry of Finance, it had been explicitly clarified that treated sewage water falls under the Nil rate of tax for GST applicability.


The bench also took note of the fact that the Tamil Nadu Pollution Control Board had mandated Zero Liquid Discharge for all highly polluting industries, including Textile Dyeing and Bleaching industries, with the aim of preventing pollution of river water and groundwater. This indicated that the common effluent treatment plant had been established to comply with legislative and environmental regulations, with the primary objective of conserving water through recovery and reuse, rather than manufacturing water or chemicals. Therefore, it was concluded that the effluent treated water qualified for exemption as per Notification No. 2/2017-Central Tax Rate, as amended by Notification No. 7/2022-Central Tax (Rate) dated July 13, 2022.


In W.P. No. 3877 of 2023 -MADR HC- Madras High Court allows DDA Tyres to apply for restoration of GST registration under amnesty notification
Justice C. Saravanan [23-08-2023]

Read Order: DDA Tyres and Services v. Deputy Commissioner of GST & Ors.


Chahat Varma


New Delhi, September 26, 2023: The Madras High Court has closed a writ petition filed by DDA Tyres (petitioner), allowing the petitioner to approach the relevant authorities in accordance with the provisions of the notification giving amnesty to taxpayers whose registration has been cancelled under the Tamil Nadu Goods and Services Tax Act, 2017 (TNGST Act).


In the said case, the petitioner had challenged the impugned order dated 21.11.2022, passed in an Appeal. This order had refused to grant an extension for the delay of 132 days in filing an appeal against the order dated 06.05.2022, which had cancelled the petitioner's GST Registration.


The single-judge bench of Justice C. Saravanan referred to the Notification No. II(2)/CTR/351(a-2)/2023, giving amnesty to taxpayers whose registration under the TNGST Act has been cancelled under clause (b) or clause (c) of sub-section (2) of Section 29 of the TNGST Act on or before 31st December 2022. These taxpayers can apply for revocation of cancellation of their registration up to 30th June 2023.


In light of the notification mentioned above, the bench decided to close the petition and provided the petitioner with the liberty to approach the relevant authorities. Additionally, the bench specified that the petitioner would be required to pay the necessary charges, which include late filing fees and any other amounts as specified in the notification.


Finally, the bench clarified that if the petitioner proceeds to file the application as permitted under the notification, the restoration of the petitioner's GST registration will be carried out in accordance with the terms of the said notification.

In W.P. No. 26022 of 2023 -MADR HC- Madras High Court quashes GST assessment order in favour of Rainbow Motors
Justice C. Saravanan [05-09-2023]

Read Order: Rainbow Motors v. The Assistant Commissioner (ST)


Chahat Varma


New Delhi, September 26, 2023: In a recent judgment, the Madras High Court has ruled in favour of Rainbow Motors (petitioner), by quashing a GST assessment order and remitting the matter back to the Assistant Commissioner (ST) for a fresh consideration. The Court found that the order had been passed arbitrarily without due consideration of the petitioner’s reply.


Briefly stated, the petitioner, had challenged an assessment order dated 20.06.2023, which levied interest and penalty on the ground of excess credit claim of Input Tax Credit (ITC). The petitioner challenged the order on the ground that the Assistant Commissioner (ST) had not considered its reply, while passing the elaborate order.


The single-judge bench of Justice C. Saravanan agreed with the petitioner and found that the order was passed in an arbitrary manner. It noted that the Assistant Commissioner (ST) had simply reproduced the petitioner's reply without any discussion.


Accordingly, the bench remitted the matter back to the Assistant Commissioner (ST), to pass a fresh order on merits and in accordance with law.

In Bail Appln. 352/2023 -DEL HC- Nigerian national arrested with narcotics denied bail; Delhi High Court says Section 52 of NDPS Act is directory in nature, defects in procedure can be addressed during trial
Justice Dinesh Kumar Sharma [21-09-2023]

Read Order: Kenechukwu Joseph V. The State


Chahat Varma


New Delhi, September 26, 2023: The Delhi High Court has rejected the bail plea of a Nigerian national who was arrested in a case registered under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) and Section 14 of the Foreigners Act.


In brief, the case involved the receipt of secret information regarding the transportation of narcotics substances. A specialized team was formed, and surveillance was conducted near Hotel Radisson Blu in Paschim Vihar, Delhi. A person, identified as Kenechukwu Joseph from Nigeria (petitioner), was apprehended. A search led to the discovery of a polybag containing narcotics substances/contraband. As a result, the present case was registered, and the petitioner was arrested.


The single-judge bench of Justice Dinesh Kumar Sharma observed that a careful examination of Section 37 of the NDPS Act reveals that, before granting bail to the accused, the court must establish that there were reasonable grounds to believe the accused was not guilty of the alleged offense. Additionally, the court must be satisfied that the accused is unlikely to commit any further offenses upon release from custody.


The bench cited the case of State of Punjab v. Balbir Singh [LQ/SC/1994/291], where the Supreme Court addressed the issue of defects in sampling. The court clarified that Sections 52 and 57 of the Act come into play after the arrest and seizure have occurred. It was emphasized that if there is any violation of these provisions, the court must assess the impact of such violations. Regarding whether the provisions of the Act following an arrest or search are to be considered mandatory or directory, the court noted that provisions creating a public duty are generally treated as directory.


The bench also referred to Quentin Decon v. Customs [LQ/DelHC/2023/3061], where a Co-ordinate bench had emphasized that Section 52 of the NDPS Act is of a directory nature. The court had further ruled that non-compliance with this provision alone cannot invalidate the actions of the investigating officers.


Thus, the bench concluded that the issues raised by the petitioner's counsel regarding the defect in sample withdrawal, contradictions in sample weight, FSL reports, and sealing should be addressed during the trial proceedings before the Special Judge.


Based on the above considerations, the court determined that the petitioner was not eligible for bail. Consequently, the present bail application was rejected.

In Criminal Appeal No. 793 of 2022 -SC- Supreme Court expresses concern over ‘disappointing standards of police investigation’; Acquits three men in murder case
Justice B.R. Gavai, Justice J.B. Pardiwala & Justice Sanjay Kumar [21-09-2023]

Read Order: Rajesh & Anr v. The State of Madhya Pradesh


Chahat Varma


New Delhi, September 25, 2023: In a significant decision, the Supreme Court has acquitted three individuals who had been convicted for murder, with two of them facing the death penalty. The Top Court found that the prosecution's case was riddled with discrepancies and that the police had conducted a shoddy investigation.


In this case, a 15-year-old boy named Ajit Pal, was brutally killed in the last week of July 2013. The accused in the case included a neighbour named Om Prakash Yadav, along with his brother Raja Yadav, and son Rajesh, also known as Rakesh Yadav. They were tried for the murder of Ajit Pal and related offenses. On 29.12.2016, the Additional Sessions Judge found all three of them guilty of various charges. Dissatisfied with the verdict, all three convicts appealed to the Madhya Pradesh High Court. However, a Division Bench of the Madhya Pradesh High Court upheld their convictions and the sentences, including the death penalty imposed on Raja Yadav and Rajesh Yadav.


A three-judge bench of Justice B.R. Gavai, Justice J.B. Pardiwala and Justice Sanjay Kumar identified significant discrepancies in the foundational aspects of the case.


The bench pointed out that there was a lack of clarity regarding the time when Ajit Pal went missing. The 'missing person' report, marked as Ex. P1, mentioned that Ajit Pal left home at 9 o'clock and went somewhere, and despite a search, he could not be located. Importantly, the report did not specify whether this incident occurred at 9 am or 9 pm. Furthermore, the bench highlighted that the prosecution's case included various inconsistent figures for the ransom amount. Given that the alleged motive for the offense was to collect ransom, it raised doubts about why the kidnappers would be so unclear about their demand.


The bench further observed that it was unclear why sniffer/tracking dogs would be deployed after the police had already discovered the dead body, the murder weapon, and other relevant evidence. The bench found it puzzling that the Investigating Officer (PW-16) did not make any mention of the use of sniffer/tracking dogs during the course of the investigation. It was held that this omission, regardless of the reason behind it, casted a negative light on the prosecution's case.


Additionally, the bench pointed out that even though the call data statement was enough to establish a connection between Om Prakash Yadav and the ransom calls, the police chose to label the accused as 'Unknown' in the FIR. Moreover, if Ex. P31's statement indeed implicated Om Prakash Yadav, as asserted by the Investigating Officer (PW-16), there was no clear explanation provided as to why the police initially arrested Rajesh Yadav.


The bench emphasized that under Section 27 of the Evidence Act, it was crucial that the individual in question must be ‘accused of an offence’ and in the ‘custody of a police officer’. Only in such a situation can information leading to the discovery of a fact be admissible, and so much of that information, whether it amounts to a confession or not, which distinctly relates to the fact discovered, may be used as evidence against the accused. Therefore, both elements, being in ‘the custody of a police officer’ and being ‘accused of an offence’, were essential prerequisites for making a confession to the police admissible to a limited extent under Section 27 of the Evidence Act.


The bench determined that in the said case, Rajesh Yadav couldn't be considered to be in 'police custody' until he was arrested at 18:30 hours on 29.03.2013, as he was not named as an 'accused' in the FIR and was not 'accused of any offence' until his arrest. Consequently, any confession made by him before his arrest and prior to being 'accused of any offence' would be governed by Section 26 of the Evidence Act, rendering it inadmissible. Therefore, the purported discovery of the dead body, the murder weapon, and other material objects, even if they were made at Rajesh Yadav's behest, cannot be proven against him because he was not 'accused of any offence' and was not in 'police custody' at the time of the alleged confession. The same would apply to Raja Yadav and Om Prakash Yadav, as they were also not named as 'accused' in the FIR and were not 'accused of any offence' until they were arrested and taken into 'police custody,' well after the recording of their confessions and the alleged seizures based on those confessions.


Before concluding the case, the bench expressed profound concern over the disappointing standards of police investigation. The bench criticized the way the police conducted their investigation, highlighting their indifference to essential investigative norms, their failure to follow important leads, and their tendency to ignore evidence that didn't fit their preconceived narrative.


It is high time, perhaps, that a consistent and dependable code of investigation is devised with a mandatory and detailed procedure for the police to implement and abide by during the course of their investigation…..,” said the court.


In its concluding remarks, the bench expressed perplexity at the fact that despite the numerous weaknesses and loopholes in the prosecution's case, both the Trial Court and the High Court not only accepted it without question but also imposed and upheld the death penalty for Rajesh Yadav and Raja Yadav. The bench noted that no valid and convincing reasons were provided to justify why this case should be considered as the ‘rarest of rare cases’, necessitating such a severe punishment.


Based on the above analysis, the court allowed the appeals and overturned the convictions and sentences of all three appellants on all charges.