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[No.72]
December 30, 2003 |
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International Legal News
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Cases
Source:
Westlawinternational.com
As a matter of first impression, a Wyoming court has held that a mother and
daughter, who were separated for forty-three years because the hospital switched
two newborn babies at birth, could maintain a negligence action in which the
only alleged damages were great emotional pain, humiliation, anxiety, grief, and
expenses for psychological counseling. The nature of the relationship between
the hospital and the mother and daughter was such that there arose a duty to
exercise ordinary care to avoid causing emotional harm.
Larsen v. Banner Health System
The legitimate interests of the state outweighed the federal constitutional
right to privacy as to mental health records, and thus, the Maryland Board of
Social Worker Examiners, which had received a complaint accusing a licensed
social worker of failing to report that the social worker's client had sexually
abused a child, could subpoena the mental health records of the client and his
wife. The public's interest in regulating health care professionals was best
served by providing the Board with the power to subpoena the records at issue.
It would create an absurd result to mandate that a social worker report child
abuse, while at the same time permitting the abuser and/or the social worker to
prevent the Board from investigating a complaint of failure to report suspected
abuse.
Doe v. Maryland Bd. of Social Workers
A German toy manufacturer's filing of a patent infringement suit in the forum
forty years earlier constituted sufficient contact for the exercise of specific
personal jurisdiction in the former defendant's suit to enjoin the
manufacturer's current German suit alleging that it had been fraudulently
induced to settle the prior action. The fact that forty years separated the two
action was attributable to the manufacturer's conduct, not the former
Mattel, Inc. v. Greiner and Hausser GmbH
Overruling prior case law, the Montana Supreme Court held that the individual
privacy exception to the public's right to know and the right of individual
privacy in the Montana Constitution were limited to natural human beings only,
did not extend to non-human entities such as corporations, and could not serve
as a basis for protecting trade secrets or other confidential proprietary
information of non-human entities. The issue arose in an action by media
entities seeking the details of the private contracts the Montana Power Company
had entered into with third party suppliers. Corporations in Montana can still
seek protection of trade secrets and other confidential proprietary information
where the data is protected from disclosure elsewhere in the federal or state
constitutions or by statute.
Great Falls Tribune v. Montana Public Service Com'n
News
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The Food and Drug Administration department of
United States has ruled that the anthrax vaccine is safe and effective. The
ruling came a week after a federal judge halted the military's anthrax
inoculations, saying he thought the vaccine was experimental if used to prevent
inhaled anthrax instead of the through-the-skin form.
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Three Judges panel of U.S. Court of Appeals in
Washington, having jurisdiction for independent counsel cases ruled on Tuesday,
that Monica Lewinsky should not be reimbursed for $1.16 million in legal fees
related to an independent counsel investigation of President Bill Clinton's
affair with the former White House intern. The Ethics in Government Act provides
for reimbursements of attorneys fees by people who have defended themselves
against an investigation under the act. But reimbursement is only allowed when
the person is the subject of the independent counsel's investigation, if they
incurred the fees during the investigation and would not have incurred them
otherwise. The court ruled that Lewinsky failed to meet the requirements to be
reimbursed by U.S. taxpayers.
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Federal Court of Appeals have dismissed a
copyright suit filed by Mattel Inc. against a Utah artist, Tom Forsythe, who
shot a photographic series depicting Barbie dolls naked in a blender, wrapped in
a tortilla and sizzling on a wok. The court held that the lawsuit was groundless
and unreasonable and Forsythe had a First Amendment right to lampoon Barbie.
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United Sates of America has signed agreements
with four more countries to exempt Americans from prosecution by the
International Criminal Court, which it staunchly opposes. Four countries are
Belize, the former Yugoslav Republic of Macedonia, Panama, and Fiji. International
Criminal Court was established under 1998 Rome Statute, which has been ratified
by 90 countries. The court faces oppositions as United States officials fear
that Americans, particularly soldiers abroad, could fall victim to politically
motivated prosecutions.
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Sale of ephedra, a herbal stimulant hugely
popular for weight loss and body building will be facing a ban next year. Herbal
stimulant has been linked to 155 deaths and dozens of heart attacks and strokes. It
is the government's first-ever ban on a dietary supplement, one that comes eight
years after the Food and Drug Administration first began receiving reports that
ephedra could be dangerous.
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SEBI
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Secondary Market Division
Circular No. SEBI/MRD/SE/AT/46/2003
Dated 22.12.2003 : SEBI has issued clarifications regarding Secondary Market for
Corporate Debt Securities covering different areas of doubt in response of the
representations and suggestions received from market participants in this
behalf. The clarifications sought and representations covered the following
aspects:
1 Applicability of the circular
to
i. Type of issuer companies
ii. Prospective and existing
issues
iii. Tenor of the debt
instruments
2 Extent of disclosures and
applicability of DIP Guidelines
3 Association of SEBI
registered intermediaries, including merchant bankers
4 Vetting of Offer document
5 Whether the requirement of 1%
deposit with the stock exchange/s is mandatory
6 Applicability of minimum
subscription clause as per DIP guidelines
7 Credit rating
8 Listing through a separate
listing agreement
9 Denomination for issuance and
market lot for trading
10 Trading of securities on the
stock exchanges
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CBDT
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Notification No. 351/2003 Dated
18.12.2003 : M/s Computer Society of India approved u/s 35(1)(ii)
Notification No. 350/2003 Dated
16.12.2003 : M/s Ashoka Infra Pvt Limited approved u/s 10(23G)
Notification No. 349/2003 Dated
16.12.2003 : Bharti Cellular Ltd approved under section 10(23G)
Notification No. 348/2003 Dated
16.12.2003 : M/s Bharti Telenet approved u/s 10(23G)
Notification No. 344/2003 Dated
12.12.2003 : M/s Centre for Development of Telematics, New Delhi approved for
the purpose of clause (ii) of sub-section (1) of section 35
Notification No. 343/2003 Dated
12.12.2003 : M/s Sandhata Medical Research Society Extension Area, Maharashtra
approved for the purpose of clause (ii) of sub-section (1) of section 35
Notification No. 342/2003 Dated
12.12.2003 : M/S Centre For Development Of Advanced Computing, Pune Approved
Under Clause (ii) Of Sub-Section (1) Of Section 35
Notification No 347/2003 Dated
16.12.2003 : The Central Government has made the following amendment in the name
of the enterprise/industrial undertaking approved in para 3(ii) of the
notification No. 98/2001 dated 29th April, 2001 to read as:
"M/s Bharti Mobitel Ltd,
H-5/12, Qutab Ambience, Mehrauli Road, New Delhi-110019 in place of M/s Spice
Cell Ltd, White House, 3rd Floor, 119, Park Street, Calcutta-700016 w.e.f.
03.08.2001"
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CBEC Excise Tariff
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Notification No. 80/2003 Dated
26.12.2003 : In the notification, in the Table, against Sl. No. 41 after the
entries occurring in column (3), the following explanation has been inserted,
namely :
'Explanation : (1) For the
removal of doubts, it is hereby clarified that 'articles of apparel and clothing
accessories of cotton, knitted or crocheted, not containing any other textile
material', shall include articles or clothing accessories made from knitted or
crocheted fabrics of cotton, not containing any other textile material, even if
they contain sewing threads, cords, labels, elastics tapes, zip fastoners and
similar items used for stitching, fastening, holding or adornment, of materials
other than cotton.
(2) The Explanation shall have
effect as if it had always been the part of this notification.
Notification No. 79/2003 Dated
22.12.2003 : In the said notification, in Annexure II, under heading '2. JAMMU
PROVINCE', in sub-heading '(I) DISTRICT JAMMU', under heading '(C) Existing
location run by Directorate of Industries and Commerce', in the Table, against
S.No. 2, in column 'Name of the Industrial Area', for the entry "E.P.I.P.
Kartholi Bari Brahamana", the entry "SIDCO Industrial Complex Bari
Brahmana or E.P.I.P. Kartholi or Village Kartholi or Village Birpur", has
been substituted.
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CBEC Excise non Tariff
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Notification No 83/2003 NT
Dated 22.12.2003 : In the notification,
(i) in Table I, for Sl. No. 5
and the entry relating thereto, has been substituted
(ii) in Table II, for S. No. 41
and the entry relating thereto, has been substituted
(iii) in Table III, for S.No.33
and the entry relating thereto, has been substituted.
This notification shall come
into effect on and from the first day of January, 2004.
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CBEC Customs Tariff
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Circular No 111/2003 Dated
23.12.2003 : Having regard to the classification of DC defibrillators for
external use, the Board has accepted the recommendation of the Conference and it
has accordingly clarified that DC defibrillators for external use, imported with
internal paddles would be treated as 'defibrillator for external use' and
therefore attract duty @ 15% BCD + 8% CVD + 4% SAD.
Circular No 110/2003 Dated
22.12.2003 : It has been made clear from Notification No. 111/2003-Customs (N.T.),
dated 19 .12.2003, that "any other person' for the purpose of section 30 of
the Customs Act, 1962 as any person, other than the carrier, who is authorized
to issue delivery orders in favour of an importer on the basis of which goods
are permitted to be delivered to such importer by the custodian of the goods.
Thus any person who delivers the import manifest for a vessel or an aircraft to
the proper officer under section 30 of the Customs Act, 1962, will be required
to register themselves with the Customs. In order to ensure that the import
manifest for vessel or aircraft are filed prior to arrival of vessel or
aircraft, a procedure have been formulated by the authorities and which have to
be complied.
The provisions of the circular
shall come into force from 18th February, 2004 except a single provision which
has commenced immediately. That provision mandate the persons responsible for
filing of the import manifest, both at Master as well as House level details ,
shall register with the Customs in advance.
Circular No 109/2003 Dated
19.12.2003 : It has been decided to extend the self assessment scheme for
accelerated clearance of import/export cargo on pilot basis to Bangalore Air
Cargo Complex also Accordingly, the para 7 of the said Circular has been
substituted as under:-
"7. Initially this scheme
will be operated on a pilot basis at Air Customs (both export and import) at
Sahar, Mumbai, Bangalore Air Cargo Complex ( both export and import) , ICD
Tughlakabad, New Delhi and Chennai Sea Customs (both import & Export). "
Notification No. 178/2003 Dated
17.12.2003 : The Central Government has exempted the beer of Nepalese origin
falling under heading 2003 of the First Schedule to the said Customs Tariff Act,
from the whole of the additional duty leviable on such beer under the
notification of the Government of India in the Ministry of Finance, Department
of Revenue, No. 32/2003-Customs, dated the 1st March, 2003, published in the
Gazette of India vide G.S.R. 167(E), dated the 1st March, 2003.
Circular No. 107/2003 Dated
16.12.2003 : Having regard to the matter of classification of Software
Protection Locks the Tariff Conference of Chief Commissioners of Customs in
their meeting considered the issue under three kinds of situations in this
regard, viz
(i) when the software lock is
imported, pre-programmed for use with a specific software, but the software is
not imported along with it ;
(ii) when the software lock is
imported without being pre-programmed for use with the intended software; and
(iii) when the software lock is
imported along with software recorded on a CD or other media, as a set.
The Conference decided that in
the first two situations, the product as presented for assessment, would be
treated as hardware and classifiable under CTH 8473.30, as part of a computer.
In the third situation, when the CD and the software lock are clearly meant to
be used together and these are imported together as a set, it would qualify for
classification as an item of 'software' under CTH 8524. Moreover, in the third
situation classification will be done as per rule 3(b) of the General
Interpretative Rules This would be consistent with the Board's Circular No.
51/2002-Cus dated 12.8.2002. The Board has also accepted the recommendation of
the Conference.
Circular No. 106/2003 Dated
16.12.2003 : With a view to clarify doubts on the classification of Thermal
Camera capable of infrared imaging and measuring temperature, the Tariff
Conference of Chief Commissioners of Customs in their meeting has concluded that
the item does not function as a camera in the conventional sense. Therefore, CTH
90.06 was ruled out. The main dispute is whether CTH 9027.30 or 9027.50 would be
the appropriate heading. CTH 9027.30 covers specific equipments only, namely,
spectrometer, spectrophotometer and spectrograph. Other equipments are not
covered under this heading. On the other hand CTH 9027.50 covers various kinds
of equipments working on infrared, ultra violet and visible spectrum of light.
The thermal camera works on the principle of IR radiation and therefore, the
conference was of the view, that the product under consideration would be
appropriately covered under CTH 9027.50.
It has been then clarified in
the light of above that thermal camera capable of infrared imaging and measuring
temperature would be appropriately covered under CTH 90275090.
Circular No. 105/2003 Dated
16.12.2003 : The Conference discussed the matter and concluded that the
equipment is essentially a storage unit for the reason that the principal
function is that of storage. Hence, the view that emerged was that the item
"Storage Disk Arrays" was appropriately classifiable under CTH
84717090 as a "Storage Unit". The Board has also accepted the
recommendation of the Conference. It has accordingly clarified that the item
"Storage Disk Arrays" is appropriately classifiable under CTH
84717090.
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CBEC Customs Non Tariff
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Notification No. 115/2003-N.T.
Dated 26.12.2003 : The Board (CBEC) has determined the rate of exchange of
conversion of each of the foreign currency specified into Indian currency or
vice versa relating to export goods which has become effective from the 1st
January, 2004.
Notification No. 114/2003-N.T.
Dated 26.12.2003 : The Board (CBEC) has determined the rate of exchange of
conversion of each of the foreign currency specified into Indian currency or
vice versa relating to imported goods which has become effective from the 1st
January, 2004.
Notification No. 113/2003-N.T.
Dated 19.12.2003 : In the Import Manifest (Aircraft) Regulations, 1976 :-
(a) regulation 3 has been
numbered as sub-regulation (1) thereof; and after sub-regulation (1) as so
numbered, the following has been inserted, namely :-
"(2) Any person who delivers
the import manifest to proper officer under section 30 of the Customs Act, 1962
(52 of 1962), shall apply for registration with the Customs in Form V. " ;
(b) after Form IV, a new Form V
has been inserted.
Notification No. 112/2003-N.T.
Dated 19.12.2003 : In the Import Manifest (Vessels) Regulations, 1971:-
(a) regulation 3 has been
numbered as sub-regulation (1) thereof; and after sub-regulation (1) as so
numbered, the following has been inserted, namely :-
"(2) Any person who delivers
the import manifest to proper officer under section 30 of the Customs Act, 1962
(52 of 1962), shall apply for registration with the Customs in Form VI.";
(b). for regulation 6 ,
following regulation has been substituted , namely:-
" 6. Delivery of vessel's
stores list and list of private property. - The vessel's stores list and the
list of private property in the possession of the Master, officer and crew at
the time of departure from the last port of call may be delivered along with the
cargo declaration.";
(c ) after Form V, a new Form
VI has been inserted.
Notification No. 111/2003-N.T.
Dated 19.12.2003 : The Central Government has specified that any person other
than carrier, who is authorized to issue delivery orders in favour of an
importer on the basis of which goods are permitted to be delivered to such
importer by the custodian of the goods, as any other person for the purposes of
the said section. This notification shall come into force on the 18th February
2004
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Service Tax
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Circular No. 70/19/2003 Dated
17.11.2003 : With a view to clarify the matter the department analyzed the
meaning of term 'Maintenance or repair' which means any service provided by (i)
any person under a maintenance contract or agreement or (ii) a manufacturer or
any person authorised by him in relation to maintenance or repair or servicing
of any goods or equipment. In the instant case repair is not of tangible goods
but that of intangible program/software which is in installed condition and thus
the maintenance and repair of software is not maintenance and repair of 'goods'.
Further an exemption has also been granted to maintenance or repair services in
relation to computer, computer systems and computer peripherals vide
Notification No. 20/2003-ST dated 21.8.2003. As such computer software would
form a part of computer systems would be covered under this notification. Under
the category of 'consulting engineer' vide Notification No. 4/99-ST dated
28.2.99 taxable service provided to any person by a consulting engineer in
'elation to computer software is exempted. The definition of "Business
Auxiliary Service" also specifically provides that; inter alia, maintaining
of computer software is covered in the T service, which is excluded from the
scope of business auxiliary service.
Taking the above into
consideration, it has been clarified that maintenance of Software is not
chargeable to Service Tax.
Circular No. 69/18/2003 Dated
15.12.2003 : It has been decided by the Board that the work relating to
"Service Tax exemptions under Section 93 of the Finance Act 1994"
being handled by the CX-4 Section shall henceforth be handled by the TRU.
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RBI
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Circular No. A.P.(DIR Series)
Circular No. 56 Dated 23.12.2003 : The Government of India have made available
the second tranche of USD 30 million (U.S .Dollar Thirty Million only) out of
the line of credit of USD 100 Million extended to the Government of the Republic
of Sri Lanka under the credit agreement entered into between the two
Governments. The credit of USD 30 million has been made available to the
Government of Sri Lanka for importing from India capital goods of Indian
manufacture including original spare parts and accessories purchased together
with the capital goods and included in the original contract as also consultancy
services, consumer durables and food items - sugar, wheat flour, rice, red split
lentils, wheat grains, which may be modified by way of additions, deletions or
substitutions from time to time as may be mutually agreed to between the two
Governments. The credit will not cover third country imports. The export of
goods and services from India and their import into Sri Lanka under the line of
credit shall take place through normal commercial channels and will be subject
to the laws and regulations in force in both the countries.
Circular No. A.P.(DIR Series)
Circular No. 55 Dated 23.12.2003 : With a view to further liberalizing the
availability of foreign exchange to residents, the limit for foreign exchange
remittance for miscellaneous purposes without documentation formalities, has
been raised from USD 500 to USD 5000 with immediate effect. It has been
clarified that Authorised Dealers need not obtain any document, including Form
A-2, except a simple letter as stated above as long as the exchange is being
purchased for a current account transaction (not included in the Schedules I and
II of Government Notification on Current Account Transactions), and the amount
does not exceed USD 5000 or its equivalent and the payment is made by a cheque
drawn on the applicant's bank account or by a Demand Draft.
Circular No. A.P.(DIR Series)
Circular No. 54 Dated 20.12.2003 : In terms of A.P.(DIR Series) Circular No.14
dated September 16, 2003, a decision has been conveyed, among others, that an
unincorporated entity shall not be allowed to make fresh investments in shares
or convertible debentures of an Indian company under FDI Scheme including the
Automatic Route. Accordingly, necessary amendments to the Foreign Exchange
Management (Transfer or Issue of Security by a Person Resident outside India)
Regulations, 2000 have been notified vide Notification No. FEMA 100/2003-RB
dated October 3, 2003. It has been clarified that only an entity
incorporated/registered under the relevant statutes, laws of the host country
(other than an entity in Bangladesh or Pakistan) is allowed to invest as per the
amended Regulation.
Notification No. DBOD.FSC.No.
59/24.76.002/2003-04 Dated 26.12.2003 : Currently Government Securities and
Treasury Bills are permitted to be traded only on T+0 or T+1 settlement basis,
unless they are traded on the Stock Exchanges. Therefore it has been clarified
that, any sale of securities allotted in primary auctions, in terms of the
circular DBOD.No.FSC.BC.26/24.76.002/2000 dated October 6, 2000 , should be only
on a T+0 or T+1 settlement basis.
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DGFT
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Circular No.
23(RE-2003)/2002-2007 Dated 29.12.2003 : In Para 3(iv) of the Circular, the date
and year of D.O. letter was erroneously indicated as 17.7.2003. The same has
been rectified to read as 17.7.2002.
Notification No. 25(RE
2003)/2002-2007 Dated 19.12.2003 : The Central Government has made the
amendments in the ITC (HS) Classifications of Export and Import Items, 2002-2007
published on 31st March, 2002 as amended from time to time. The amendment has
been made in relation to export of Niger Seeds to USA at Code No. 1207 in
Schedule 2 of ITC (HS) Classification, the following new STEs have been added at
S.No. 6 and 7 after S.No. 5.
"(6) Spices Trading
Corporation Ltd., (STCL), Bangalore.
(7) Karnataka State
Co-operative Marketing Federation Ltd., (KSCMF)".
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Department of Commerce
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Order No SO1442(E) Dated
19.12.2003 : The Central Government, after consulting the Export Inspection
Council has made the amendments in the Order number S.O. 2077 dated the 4th
August 1997 by making the insertion of the clause (e), after clause (d) of the
said order.
Order No SO1441(E) Dated
19.12.2003 : The Central Government, after consulting the Export Inspection
Council has made the amendments in the Order number S.O. 276 dated the 4th March
2002 by substituting, in the Appendix, the new clause 1.8 in place of the old
one.
Notification No SO1444(E) Dated
19.12.2003 : In the Export of Honey (Quality Control, Inspection and Monitoring)
Rules, 2002, in rule 4, in sub-rule 4.1, after clause (7), the following clause
has been inserted :--
"(8) The Council may seek
the assistance of the Agricultural and Processed Food Products Export
Development Authority (APEDA) or any other organisation approved by it for
residue monitoring."
Notification No SO1443(E) Dated
19.12.2003 : In Part-I, of the Export of Egg Products (Quality Control,
Inspection and Monitoring) Rules, 1997 , in rule 4, after sub-rule 4.21, the
following sub-rule has been inserted, namely:--
"4.22 The Council may seek
the assistance of the Agricultural and Processed Food Products Export
Development Authority (APEDA) or any other organisation approved by it for
residue monitoring."
In Part-II, of the principal
rules, in rule 4, after sub-rule 4.7, the following sub-rule has been inserted
:--
"4.8 The Council may seek
the assistance of the Agricultural and Processed Food Products Export
Development Authority (APEDA) or any other organisation approved by it for
residue monitoring."
Notification No. 14/4/2003-DGAD
Dated 11.12.2003 : Anti-Dumping Investigation Concerning Import of Flexible
Slabstock Polyol of Molecular Weight 3000 to 4000 from China PR, Republic of
Korea, Taiwan and Brazil. -- Preliminary Findings
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Secretariat for Industrial Assistance
(SIA)
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Press Note No 5/2003 Dated
28.12.2003 : As a part of the ongoing process of liberalisation Issue of shares
against External Commercial Borrowings, it has been decided to permit issue of
equity shares against all External Commercial Borrowings (excluding those deemed
as ECBs) received in convertible foreign currency, subject to meeting all tax
liabilities and procedures.
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Department of Industrial
Policy
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Notification No. SO1440(E)
Dated 18.12.2003 : The Central Government has exempted M/s. HLS Asia Limited,
109, Aurobindo Palace Market Safdarjung Development Area, Hauz Khas, New
Delhi-110 016, from the provisions of sub-rule (2) of rule 31 of the Explosives
Rules, 1983, for import of the explosives namely Fuzes, Detonating &
Detonators, Non-Electric from M/s, Halliburton Energy Services, Jet Research
Centre, 8432, South I-35 W, Alvarado, Texas-76009-9775, United States of America
at New Delhi airport.
Notification No. SO1439(E)
Dated 18.12.2003 : The Central Government has exempted M/s. Cairn Energy India
Pty Limited, Wellington Plaza, 90, Anna Salai, Chennai -600 002 from the
provisions of sub-rule (2) of rule 31 of the Explosives Rules, 1983, for import
of the certain explosives from M/s. Baker Atlas, 14000 Betka Road, Hempstad,
Texas-77445, United States of America at Mumbai Airport subject to certain
conditions.
Notification No. SO1438(E)
Dated 18.12.2003 : The Central Government has exempted M/s. .Cairn Energy India
Pty Limited, Wellington Plaza, 90, Anna Salai, Chennai -600 002 from the
provisions of sub-rule (2) of rule 31 of the Explosives Rules, 1983, , for
import of the certain explosives from M/s. Baker Atlas, 14000 Betka Road,
Hempstad, Texas-77445, United States of America at Mumbai Airport.
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Ministry of Home Affairs
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Notification No. GSR937(E)
Dated 10.12.2003 : The Central Government has issued the Citizenship
(Registration of Citizens and Issue of National Identity Cards) Rules, 2003
which has become effective from their date of their publication i.e. 10.12.2003.
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Ministry of Labour
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Notification No. GSR936(E)
Dated 10.12.2003 : In the Schedule to the Industrial Employment (Standing
Orders) Act, 1946, in item 1, for the words "or badlis" the words
"badlis or fixed term employment" have been substituted.
Also, in the said rules,
following amendments have been made:-
(a) In rule 5, after item (4),
item (4A) has been inserted.
(b) In Schedule I, paragragh 2
and 13 have been amended
(c) In Schedule IA, paragragh 2
and 13 have been amended
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Ministry of Railways
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Notification No. SO1434(E)
Dated 17.12.2003 : The appropriate Government in this behalf has appointed
certain officers to be the Chief Electrical Inspector (CEI)/Electrical
Inspectors (EIG)/ Assistant Electrical Inspector (AEI) and specified their
extent of jurisdiction. The said Government has also directed that each of them
shall exercise the powers and perform the function of CEI / EIG/AEI under the
Electricity Act, 2003.
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Supreme Court |
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Criminal appeal was filed
before Hon'ble Supreme Court to decide whether the sacrifice of a young
child of 9 years before Goddess Kali by the appellant for his own
prosperity could be treated as gruesome murder and death sentence was
most the appropriate sentence. Counsel for Appellant, contended that
though superstition is not expected and encouraged in a modern society,
yet an illiterate and tribal born and brought up in an atmosphere
surcharged with superstition should not be awarded a death sentence.
Apex Court clarified that after
the amendment of Sec. 367(5) of the Old Code by Criminal Procedure Code
(Amendment) Act, 1955 (26 of 1955), the former rule that the normal
punishment for murder is death is no longer operative and it is now
within the discretion of the court to pass either of the two sentences
prescribed i.e. sentence for death or imprisonment for life, stating
reasons for imposing such a sentence. Under amended Section 354(3) of
the Code, normal punishment for murder is imprisonment for life and
death penalty is an exception. The court is required to state the
reasons for the sentence awarded and in the case of death sentence
"special reasons" are required to be stated, that is to say,
only special facts and circumstances will warrant the passing of the
death sentence.
Condemning the act of appellant
in the most severe words, Apex Court held that Superstition cannot and
does not provide justification for any killing, much less a planned and
deliberate one. No amount of superstitious colour can wash away the sin
and offence of an unprovoked killing, more so in the case of an
innocent and defenceless child. The appellant was not possessed of the
basic humanness and completely lacks the psyche or mind set which can
be amenable for any reformation and treated this case as the 'rarest of
rare cases' in which death sentence is and should be the rule, with no
exception whatsoever - Appeal dismissed.
Batch of Writ Petitions were
filed before Hon'ble Supreme Court challenging the Constitutional
validity of various provisions of the Prevention of Terrorism Act, 2002
(hereinafter POTA) on ground that provisions of POTA, in pith and
substance, fall under the Entry 1 (Public Order) of List II, hence
Parliament lacks legislative competence, thereby meaning that terrorist
activity is confined only to State(s) and therefore State(s) only have
the competence to enact a legislation.
Apex Court held that the entry
'Public Order' in the State List only empowers the States to enact a
legislation relating to public order or security in so far as it
affects or relates to a particular State. Howsoever wide a meaning is
assigned to the Entry 'Public Order', the present day problem of
terrorism cannot be brought under the same by any stretch of
imagination. A law can be enacted only by Parliament and not by a State
Legislature. Since the Entry Public Order or any other Entries in List
II do not cover the situation dealt with in POTA, the legislative
competence of Parliament cannot be challenged. Parliament possesses
power under Article 248 and Entry 97 of List I of the Seventh Schedule
of the Constitution of India to legislate the Act.
Deciding on issue of alleged
misuse of TADA and large number of acquittals of the accused charged
under TADA, Hon'ble Supreme Court refused to look into the ‘need’
for POTA, as the Act is a matter of policy and the court cannot go into
the same.
Rejecting the question,
pertaining to the validity of Section3 (3) of POTA citing the reason of
the absence of mens rea, Apex Court clarified that the
definition of 'abets' as appears in the Inian Penal Code will apply in
case under POTA.
On the question whether Section
21(1) and (3) of POTA are offending Article 19(1)(a) and 19(1)(c) of
the Constitution and whether Section 20, 21 and 22 are unconstitutional
on ground that no requirement of mens rea for offence is
provided therein was negatived by Apex Court on the ground that mens
rea by necessary implication could be excluded from a statue only
where it is absolutely dear that the implementation of the object of
the Statue would otherwise be defeated. Court was of opinion that
Section 20 or 21 or 22 needs positive inference that a person has acted
with intent of furthering or encouraging terrorist activity or
facilitating its commission. If these Sections are understood in this
way, there cannot be any misuse. With this clarification Apex Court
upheld the constitutional validity of the provisions of POTA.
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