[No.213]

Supreme Court

• Jaslok Hospital and Research Centre v. Union of India (UOI) and Ors.

The Appellant obtained Customs Duty Exemption Certificate (for short "CDEC"), from the Directorate General of Health Services (DGHS), for import of various hospital equipments under Notification. CDECs issued to the Appellant related to import of medical equipments for the period between 1988 and 1994. The CDECs certified that the Appellant was covered under para 2 of the Table annexed to the Notification. The said CDECs were cancelled/withdrawn by the Directorate General of Health Services (DGHS) on the ground that the Appellant-hospital had failed to comply with the conditions laid down in para 2 of the Table annexed to the Notification. After about three years, the Appellant made a representation to the Secretary, Ministry of Health and Family Welfare seeking categorization under para 1 instead of para 2 of the Table annexed to the Notification. The said representation came to be rejected by the DGHS. Against the rejection of its aforesaid representation, the Appellant filed the Writ Petition in the High Court, challenging the communication issued by the DGHS, canceling/withdrawing the CDECs granted to the Appellant, and the Order declining to categorize the Appellant under para 1 of the Table annexed to the Notification. High Court vide impugned order upheld the order passed by the DGHS and also held that the Appellant cannot claim change in the categorization after having enjoyed the benefit under para 2 for a considerable period. Hence present Appeal.Held, Appellant is not entitled to the relief sought. Appellant had given up its challenge to the cancellation /withdrawal of CDECs for having violated the conditions laid down for grant of exemption. Representation made after a lapse of three years cannot be entertained and also question of change in category does not arise as the Appellant's categorization under para 2 was already withdrawn. Change could be possible if categorization had been applied prior to issuance of communication by the DGHS. Therefore, High Court rightly upheld the rejection of change of categorization.

• Smt. Thokchom Ongbi Sangeeta @ Sangi Devi and Anr. v. Oriental Insurance Co. Ltd. and Ors.

A "Goods Carrier", carrying passengers was involved in a motor vehicle accident. Claim cases pursuant to the accident were filed. Claim Tribunal vide common judgment awarded compensation. Insurance Company assailed the award on the ground that since the vehicle involved in the accident was a goods vehicle and thus cannot be held liable for compensation. High Court by the impugned Judgment held that the insurer was not liable to pay the compensation. Hence, present Appeal. Held, Legislative intent as apparent from the bare reading of stature was to prohibit goods vehicle from carrying any passenger. Statutory provisions do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger traveling in a goods carriage and the insurer would have no liability therefore. High Court held to be justified in holding that the insurer was not liable.

High Courts

Gujarat

• The State of Gujarat v. Duda Bhima Chauhan and 7 Ors.

Accused were charged with the murder of deceased who had eloped and run away. Trial Court after appreciating the evidence acquitted the accused. Hence, present appeal by State. What is the scope of appeal to High Court in case of acquittal by Trial Court? Held, reasons assigned by the Trial Court for the acquittal are plausible, probable and reasonable. Unless and until the conclusions arrived at by the Trial Court for acquittal are found manifestly erroneous, palpably wrong, perverse or demonstrably unsustainable, even if legitimate second view may be possible from the evidence on record, no interference is permitted in the Order of acquittal of the Trial Court in an appeal against acquittal. Therefore, there is no merit in this appeal. Appeal is dismissed.

• DY. Executive Engineer Gujarat Water Supply and Sewerage Board v. Noormohamadbhai Ibrahim and Anr.

Respondent-workmen filed suit alleging that that they were unceremoniously removed from services by the petitioner establishment. However, petitioner establishment alleged that workmen had abandoned their service. Trial Court came to the conclusion that the plea of abandonment by petitioner was not justified and therefore, directed reinstatement and awarded 25% back wages. Hence, present appeal. Held, each of the workman was working as a part-timer and as a part-timer is not in the regular establishment, the workmen are not entitled to the benefits of continuity of service. The Court below though was justified in directing reinstatement, by awarding 25 per cent back wages erred in giving benefit of continuity of service. Therefore, directions issued by the Labour Court to the extent that the benefit of continuity of service be given to the workmen is set aside.

Delhi

• Pfizer Products, Inc v. Mr Altamash Khan & Another

Plaintiff filed suit to restrain defendant No.1 from using plaintiff's trademark "VIAGRA" or deceptive variants thereof as well as from using the website or domain name www.viagra.in which was deceptively similar to that of plaintiff's www.viagra.com. Hence, present suit. Held, the plaintiff as registered owner of the trade mark VIAGRA and as registered owner of the .com domain name (www.viagra.com) does have a legitimate interest in protecting its brand. Defendant No.1 does not have any interest in the domain name "viagra.in" apart from putting it up for sale. Thus, defendant No.1 has no legitimate interest in using the domain name "viagra.in". Further, domain name "viagra.in" is confusingly similar to the trade mark VIAGRA and the domain name "viagra.com" which belong to the plaintiff. Therefore, suit decreed in favour of plaintiff.

RBI

• RBI Releases Report on Oversight of Payment Systems in India

Press Release No: 2007-2008/725 Dated 28.11.2007: The Reserve Bank of India released the first Report on Oversight of Payment Systems in India. This being the first report, the assessment of the various payment systems is broad based. The report briefly provides the role of central banks in oversight and also highlights the importance of retail payment systems and the developmental role played by the central banks in improving and bringing in safety and efficiency in the retail payment systems. Detailed assessment of the Systemically Important Payment Systems has been made against the international standards published by the Committee on Payment and Settlement Systems (CPSS), Bank for International Settlements (BIS) subsequently.

• Investment by FIIs under PIS : M/s India Info line Limited

Press Release No: 2007-2008/712 Dated 26.11.2007: The Reserve Bank of India has notified that under Portfolio Investment Scheme (PIS), Foreign Institutional Investors (FIIs) can now purchase equity shares and convertible debentures of M/s India Infoline Limited, through primary markets and stock exchanges in India. The purchases can be made upto 100 per cent of the paid up capital of the company, as it has passed a special resolution to this effect at the Board of Directors' and the General Body Meetings.

Telecom Regulatory Authority of India (TRAI)

• TRAI Releases Draft Recommendation on "Provision of IPTV Services"

Press Release No: 100/2007 Dated 28.11.2007: Telecom Regulatory Authority of India (TRAI) released the draft recommendation on provisioning of IPTV services. IPTV is a new method of delivering and viewing television programmes using an IP network and high speed broadband technology. It is fast becoming a popular value added service in many countries. The fast development in telecom technologies, enormous capabilities of IP platform and increasing digitalization in broadcasting sector is driving services like Internet Protocol TV (IPTV).

Ministry of Labour and Employment

• Extending Tenure of the Court of Enquiry Appointed to Hold a inquiry into Causes and Circumstances Attending the Accident in Collieries of M/S Bharat Coking Coal Limited

Notification No: SO1816(E) Dated 25.10.2007: The Ministry of Labour and Employment vide notification No. S.O. 1756(E) dated 12th October, 2006 had appointed Shri P.C. Parakh, Former Secretary, Ministry of Coal to hold a formal inquiry into the causes and circumstances attending the accident that occurred on 6th September, 2006 in the collieries of M/s. Bharat Coking Coal limited, more particularly in the Bhatdee Colliery in Dhanbad District of Jharkhand State, causing loss of lives and present a report within a period of three months. As it has become necessary to extend the period of the Court of Inquiry, as the Chairman, Court of Inquiry submitted the report, the Central Government extends the duration for a further period from 12th October, 2007 to 20th October, 2007.

Cases

• Herrera v. State of Texas

Appellant was involved in an aggravated assault and was taken to jail. Appellant alleged that he was then interviewed by the investigator; however, the investigator did not give him the statutory warnings or advise under Article 38.22, Section 2(a) of the Texas Code of Criminal Procedure and that the Investigator also failed to record the conversation. Trial Court held that the defendant bears the burden of proving that a statement by the defendant that was being used in the trial was the result of custodial interrogation. Court held that there is no evidence of compulsion or that the statement was otherwise one of custodial interrogation. Hence, present appeal. Held, the Fifth Amendment to the United States Constitution commands that no person "shall be compelled in any criminal case to be a witness against himself. However, at trial the defendant bears the initial burden of proving that a statement was the product of "custodial interrogation". In this case, the appellant failed to meet this initial burden. Hence, judgment of lower court is affirmed.

• Cooks v. State of Texas

In the present case, the appellant was involved in an altercation with his co-worker and was charged with aggravated assault with a deadly weapon. Trial court set punishment at 15 years and asked appellant to file notice of appeal if he wishes. However, no motion for new trial was filed before the stipulated 30-day period. Appellant asserted that there was not enough time for appellate counsel to adequately assist appellant in deciding whether to file a motion for new trial and therefore, he failed to file the motion for new trial. Appellate court however, declined him motion to file for a new trial again. Hence, present appeal. Held, the 30-day period is a critical stage of a criminal proceeding, but the deprivation of effective assistance of counsel is subject to an analysis for prejudice or harm. In the present case, appellant has established that he was denied counsel during this critical stage in this case. However, this denial of counsel did not harm or prejudice appellant. Therefore, ruling of appellate court is affirmed.

News

• Rights groups allege violations in run-up to Russia parliamentary elections

Human rights groups have expressed concerns about repression and rights violations in the run-up to Russian parliamentary elections. Amnesty International alleged that the Russian government has interfered with opposition parties' rights of freedom of expression and free assembly. It characterized opposition candidate and former chess grandmaster Garry Kasparov - arrested in Moscow at an anti-Putin rally - as a prisoner of conscience, and called for his immediate release. Russian human rights group Golos has meanwhile said that election observers have been prevented from effectively observing the elections because of a politically-motivated criminal prosecution.

• Japan upper house passes bill to stop air force mission to Iraq

The Japanese House of Councillors passed a bill to end Japan's air force mission in Iraq, with opposition leaders insisting that Japan should work through the United Nations rather than the United States. Japan withdrew its ground troops from Iraq last July, but a Japanese unit stationed in Kuwait still provides air support for the Multi-National Force-Iraq. The bill, which passed 133-103 is supported primarily by the opposition Democratic Party of Japan. It is not, however, expected to pass the more powerful House of Representatives, dominated by the ruling Liberal Democratic Party. The House of Councillors vote comes little more than one week after a Japanese district court dismissed a lawsuit that claimed the deployment of Japanese troops in Iraq violated Article 9 of the Japanese constitution.

• Gaza-based Hamas military court issues first ruling

A military court established in the Gaza Strip by the Palestinian militant group Hamas handed down its first ruling sentencing three members of rival party Fatah to 18 months in prison and fining them $280. A fourth Fatah member was sentenced to one year in prison and a $140 fine. The four men were accused of planting a bomb near the house of a Hamas official, although no one was hurt in the resulting explosion. The Hamas court was established after Hamas' violent takeover of the Gaza Strip. The judiciary of the Palestinian Authority (PA) in the Gaza Strip, under orders from Palestinian President Mahmoud Abbas has refused to cooperate with the Hamas government and ceased functioning since the takeover in June. Hamas vowed in September that it would replace PA judges who refused to cooperate with it. The military court was expected to begin considering criminal cases that ordinarily would have been dealt with by the PA courts.

• ICTY orders former Croatian general to stay in The Hague until trial

The International Criminal Tribunal for the former Yugoslavia (ICTY) ruled that former Croatian general Ante Gotovina must remain in detention in The Hague until his trial. The court denied Gotovina's motion for release and dismissed the motion to strike because of the risk he could flee. Gotovina, who has indicted for alleged crimes against humanity and violations of the laws or customs of war, filed a motion for provisional release in August to await trial under house arrest in Croatia. The motion also required Croatian officials' assurance that Gotovina would return to The Hague for trial, but the prosecution formally opposed the request, writing that provisional release would undermine the interests of justice. The ICTY has not yet given a trial date.