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In This Issue [No.94]                                                                            August 10, 2004 International SEBI Telecom Regulatory Authority of India CBEC Excise Tariff RBI Department of Commerce Press Information Bureau Supreme Court High Courts Site Links Roundup Archives Free Trial Contact us   To keep you informed about the latest Legislative and Regulatory information manupatra.com publishes this e-roundup highlighting the recent changes brought about by the Notifications/Acts/Bills /Ordinances etc. About manupatra.com ../ provides comprehensive and easy to use legal and related information over the Internet .Our database covers Central Laws , Judgments of Supreme Court and High Court (full text of the judgments from 1950 onwards ), Orders of Tribunals , Bills , Notifications, Circulars and more Key features of manupatra are Content is derived from reliable primary and secondary sources Database is updated on a daily basis Electronic Ready Reckoner to view the judgments under a particular section of an Act / Subject Powerful search engine with user friendly interfaces Search in any one court/year or multiple courts/year Hyper-linking of documents Updated modules on WTO, Anti Dumping, Arbitration, Investment Destinations Abroad, Capital Markets, Taxation, Environment, Cyber & IT Laws, IPR, Corporate Laws, Industrial Policies, Foreign Trade, Forex & Banking and more     For subscription to manupatra.com or for more details please log onto ../ or call us at 0120 2531811 or send an email to : contact@manupatra.com If at any stage you wish to stop receiving the e-roundup please click here to unsubscribe.       International Legal News Cases Source: Westlawinternational.com Civil Rights: Nevada statute requiring identification of sponsors of campaign publications was unconstitutional. A Nevada statute which required certain groups or entities publishing material or information relating to an election candidate or any question on a ballot to reveal on the publication the names and addresses of the publication's financial sponsors was a content-based regulation of core political speech which was not narrowly tailored to serve the claimed state interests of helping voters evaluate the usefulness of the information, preventing fraud, and enforcing campaign finance laws. The statute thus violated the First Amendment, even though it contained an exception for a natural person acting independently and without the cooperation of any business or social organization. American Civil Liberties Union of Nevada v. Heller Commercial Law: Surgery performed without patient's consent was not unfair or deceptive business practice. A surgeon's decision to perform a hemorroidectomy, rather than a fissurectomy, without the patient's consent did not state a claim against the surgeon for deceptive or unfair business practices in violation of the consumer protection statutes. The surgeon's negligent delivery of medical care did not concern any entrepreneurial or business aspect of the surgeon's practice. Neither could the patient recover under the consumer protection act for the surgeon's failure to comply with statutes meant for the protection of the public's health, safety, and welfare, in alleged violation of the informed consent statute. The surgeon's failure to inform the patient of the procedure was misconduct that constituted medical malpractice, and therefore, was governed by the medical malpractice statute. Darviris v. Petros Criminal Justice: Use of webcams to broadcast pretrial detainees was unconstitutional and was properly enjoined. A county sheriff's use of world-wide web cameras, or "webcams," to stream live images of pretrial detainees on the Internet constituted "punishment" prior to an adjudication of guilt, in violation of the due process clause, and was properly enjoined by a district court. The detainees were certainly harmed by having every moment of their daily activities exposed to general and world-wide scrutiny, and the use of webcams was not an incident of some other legitimate governmental purpose apart from punishment. The sheriff's claim that the injunction violated his First Amendment rights was rejected, since the transmissions were governmental speech involving images the sheriff could not have obtained or transmitted absent his official position. Demery v. Arpaio Criminal Justice: Transferred intent does not apply to attempted murder. The theory of transferred intent, relating to a crime against a bystander, applies only when the bystander has suffered a fatal injury. Thus, the theory does not apply to a charge of attempted murder of the bystander. In so holding, the Maryland Court of Appeals abrogated State v. Wilson, 313 Md. 600, 546 A.2d 1041. According to the Court, "The most compelling reason why we reject the doctrine of transferred intent as applied to crimes of attempt is that it is not necessary to make 'a whole crime out of two halves by joining the intent as to one victim with the harm caused to another victim,' the purpose for which it was conceived. ... When the unintended victim has not suffered a fatal injury, the defendant already has committed a completed crime against the intended victim, and the seriousness of that crime is as great as if the intent were transferred to the unintended victim." Harrison v. State Environmental Law: Evidence supported decision declining to list Cook Inlet beluga whale as endangered species. The evidence supported the Commissioner of Fish and Game's decision declining to list the Cook Inlet beluga whale as endangered under the Alaska Endangered Species Act. The commissioner considered the statutory indicators, including threats to habitat, overutilization, disease and predation, and other factors, and the National Marine Fisheries Service's recent findings provided a rational basis to conclude that the belugas' diminished population did not by itself imperil the whales' survival. Alaska Center for Environment v. Rue Legal Services: Lawyer who engaged in conduct involving dishonesty was subject to public reprimand. A lawyer engaged in conduct involving dishonesty for purposes of determining that he violated a rule of professional responsibility, inasmuch as his conduct reflected adversely on his fitness to practice law. The lawyer knowingly made affirmative false statements in an online message, purportedly written by a high school teacher, stating that the teacher had engaged in sexual conduct with students. Such conduct by the lawyer indicated that he lacked aspects of trustworthiness and integrity that were relevant to the practice of law. In re Complaint as to Conduct of Carpenter Criminal Justice: Attorney could not bring petition on behalf of death-sentenced prisoner who chose to forgo appeals. A death-sentenced prisoner's former attorney lacked "next friend" status to file a habeas petition on his behalf after he decided to forgo appeals. His capacity to make that decision was not substantially affected by his mental illness. His primary psychiatric problems were controlled by medication in prison. Although a psychiatrist testified that his decision was a consequence of suicidal thinking, the psychiatrist offered no opinion that the prisoner's mental capacity substantially affected his ability to make a rational decision. Furthermore, the process employed by the district court was not defective, and the prisoner was not effectively unrepresented. One Circuit Judge concurred in the result, stating that the lead opinion did not allow for the possibility that a person with intact cognitive ability may be unable to make a rational choice. Dennis ex rel. Butko v. Budge News Retrial For 9/11 Suspect In Germany In US, the second trial of the man accused in connection with the 11 September attacks has begun. The man named Mounir al-Motassadek's original conviction was previously overturned by the German supreme court in this year for want of US testifying a key witness though the US stand over this is still not clear. Motassadek, 30, a Moroccan, was previously convicted and sentenced to an imprisonment of 15 years for helping the three suicide hijackers based in Hamburg. East Timor Tribunal Disappoints US In the wake of Indonesia’s announcement last week that a court had cleared the security officials of gross rights violations, the US has expressed a profound disappointment. The Court has overturned the convictions of four personnels over the violence in East Timor in 1999. The US State Department has described the Jakarta's prosecutions process as seriously flawed and lacking credibility. But Indonesia has claimed such criticism as premature, since the judicial process is not yet over. Judge Trying Saddam Apprehends Fears For Life The head of the tribunal trying Saddam Hussein, Salem Chalabi has termed the charges leveled against Saddam as ridiculous. He has expressed concern about the safety of his life and said that he was the victim of a smear campaign and a house he used in Baghdad had been shelled recently. He has asked for assurances about his safety before returning to Iraq. Reforms Prescribe No Jail Protection For Children The Howard League for Penal Reforms has said that children in jail will not be protected by new rules which include the use of physical restraint. Under the rules, due in September, children could spend hours alone in cells with little education or exercise and be routinely stripped. The critism of the reform has come in the wake of a 14 year old being found hanged at a private remand centre in Co Durham and he is believed to be the youngest child to die in custody. Report Titles 'Worst Performing' Prison As per a report published by the Independent Monitoring Board (IMB) for prisons, Parc Prison in Bridgend has been rated the worst performing privately-run prison in Wales and England. It was also found that there was a lack of separate health-care facilities for juveniles, and issues of staff morale. The research was carried out over a period of 12 months, ending in February this year. In response, the prison said that things had improved since then. SEBI Secondary Market Division Regarding ECS Facility availed through Accounts in GTB Circular No: DPS-II/GTB-ECS/16703/2004 Dated 29.07.2004: The Central Government had issued an Order of Moratorium in respect of Global Trust Bank Ltd (GTB) till October 23, 2004 according to which depositors of GTB were permitted to withdraw up to Rs 10,000/- only from their accounts with the bank during the period of moratorium. Further, it was advised that in cases where investors have given details of their bank account with GTB for ECS facility, Registrars and share transfer agents and the issuer companies may make the payment of dividend, interest and other cash benefits through warrants (payment instruments) without printing thereon the name of the bank account details of GTB but if alternate bank account details have been given by the investors, such account details shall be printed on the payment instruments. This temporary exemption is applicable from October 15, 2001 to November 13, 2001 only to those investors who have furnished details of bank accounts with GTB for ECS facility. Telecom Regulatory Authority of India Comments on Consultation Paper on Spectrum Related Issues: Efficient Utilisation, Spectrum Allocation, and Spectrum Pricing Press Release No.: 48/2004 Dated 02.08.2004: The Telecom Regulatory Authority of India vide the above press release notifies the release of compilation of comments received on “Spectrum Related Issues: Efficient Utilisation, Spectrum Allocation, and Spectrum Pricing for the information of the stakeholders. This is aimed at generating more useful discussions during the Open House Discussions proposed to be held subsequently. Spectrum policy is of great significance and has a long term impact on the sector as is evident from the comments received from the stakeholders. CBEC Excise Tariff Exemption to 5 percent Ethanol Blended Petrol from Excise Duty Notification No: 38/2004 Dated 04.08.2004: The Central Board of Excise and Customs vide Notification No: 38/2004 Dated 04.08.2004 notifies the exemption of 5% ethanol blended petrol that is a blend of 95% Motor spirit, (commonly known as petrol) on which the appropriate duties of excise have been paid and of 5% ethanol on which the appropriate duties of excise have been paid and conforming to Bureau of Indian Standards specification from the whole of the additional duty of excise leviable upon it. Exemption to Motor Spirit (Petrol) from Excise Duty Notification No: 37/2004 Dated 04.08.2004: The Central Board of Excise and Customs by virtue of the above notification notifies the exemption of Motor Spirit (commonly known as petrol) manufactured in and cleared from an oil refinery or cleared from a registered warehouse intended for use in ethanol blended petrol from so much of the duty of excise leviable thereon. RBI Income Recognition, Asset Classification and Provisioning - Adoption of 90 Days Norm Circular No: UBD..PCB.Cir9/13.04.00/2004-05 Dated 04.08.2004: The RBI vide its circular UBD.No. BPD. 48/13.04.00/02-03 dated May 22, 2003 advises banks to classify an asset as a non-performing asset if the interest and/or installment of principal remained overdue for a period of more than 90 days with effect from March 31, 2004. However, both gold loans and small loans up to Rs 1 lakh were governed by the 180 days norm for classification as NPA even after March 31, 2004. The RBI by virtue of Circular No: UBD..PCB.Cir9/13.04.00/2004-05 Dated 04.08.2004 with a view to strengthening the financial health of the UCBs and achieving regulatory convergence of the prudential norms applicable to various players in the financial sector has decided that the 90 days loan impairment norm shall be applicable to gold loans and small loans upto Rs 1 lakh with effect from the year ending March 31, 2005. Master Circular Regarding Statutory and Other Restrictions on Loans and Advances Circular No: DBOD.Dir.BC.20/13.03.00/2004-05 Dated 30.07.2004: The RBI vide Master Circular DBOD. No. Dir. BC. 18/13.03.00/2003-04 dated August 22, 2003 had consolidated the instructions/guidelines issued to banks till June 30, 2003 relating to statutory and other restrictions on Loans and Advances. The RBI vide the above circular notifies that the said Master Circular has been updated by incorporating the instructions issued up to June 30, 2004 and has been placed on the RBI website and it is also notified that the revised Master Circular supersedes the instructions contained in these circulars issued by the RBI. Regulations Relating to Maintenance of Liquid Assets by NBFCs/RNBCs Notification Dated 03.08.2004: The Reserve Bank of India vide Notification Dated 03.08.2004 for the purpose of ensuring the compliance with the maintenance of percentage of assets by non-banking financial companies specifies the forms, the manner and the period of submission of the return. The RBI states that every residuary non-banking company and every non-banking financial company, other than a residuary non-banking company shall submit a return every quarter as per the Form of [NBS-3.]. The Quarterly Return shall be submitted in duplicate within a period of fifteen days of the month succeeding the quarter to which it relates and that the contents of the Return shall be certified and signed by the authorised official of the company to be true and correct and that it shall be submitted to the Regional Office of Department of Supervision (Financial Companies Wing) of Reserve Bank of India under whose jurisdiction the Registered Office of the non-banking financial company is situated. Opening of Current Accounts for Corporate Customers by banks – Need for discipline Circular No: DBOD.No.Leg.BC.22/09.07.005/2004-2005 Dated 04.08.2004: The RBI by virtue of the above circular advises banks to exercise due diligence when opening current accounts on the request of a prospective customer who is a corporate or large borrower enjoying credit facilities from more than one bank. It stipulates that in such cases the banks should inform the consortium leader, if under consortium and the concerned banks if under multiple banking arrangement. Banks may open current accounts of prospective customers in case no response is received from the existing bankers after a minimum waiting period of a fortnight. If a response is received within a fortnight, banks should assess the situation with reference to information provided on the prospective customer by the bank concerned. Department of Commerce Indo-Thai FTA Zero Duty Regime from 01.09.2006 Press Release Dated: 31.07.2004: The Minister of Commerce and Industry, Mr Kamal Nath vide Press Release Dated: 31.07.2004 has stated that the Indo-Thailand Free Trade pact would be finalised next month by which the duty on items listed out under the Free Trade Pact would be reduced by 50 per cent in the first year beginning September 1, 2004, in the second year, the duty-cut would be 75 per cent of the existing duty rates and from September 1, 2006 it would become a zero duty regime.  Press Information Bureau Press Communique - Appointment of Judges of Gujarat High Court PIB Press Releases Dated 02.08.2004: The President appointed Shri Justice Kantilal Ambalal Puj and Shri Justice Jayant Maganlal Patel, Additional Judges of the Gujarat High Court as Judges of the Gujarat High Court with effect from the date they assume charge of their respective office. Supreme Court Godawat Pan Masala Products I.P. Ltd. and Anr. Vs. Union of India (UOI) and Ors. In this case the core issue was as to the power of the Food (Health) Authority to issue an order of prohibition, whether permanently or quasi-permanently, u/s 7 (iv) of the Prevention of Food Adultration Act, 1954. The said Authority by way of a notification banned the manufacture, sale, storage and distribution of pan masala and gutka (pan masala containing tobacco) for different periods. The Hon’ble Supreme Court while admitting the appeal of the Appellants held that Section 7(iv) of the Act was not an independent source of power for the state authority. That the power of banning an article of food or used as ingredient of food on the ground that was injurious to health , belonged to the Central Government and Food (Health) Authority had no power to prohibit the manufacture for sale, storage, sale or distribution of any article, whether used as an article or adjunct thereto or not used as food. Such a power could only arise as a result of wider policy decision and emanated from Parliamentary legislation. Hence, the notification was held to be ultra vires and bad in law abridging the fundamental rights of the appellants guaranteed under Articles 14 and 19 of the Constitution. Pramod Kumar Srivastava Vs. Chairman, Bihar Public Service Commission and Ors. In this case, the writ petitioner appeared in the Judicial Services (Competitive) Examination, 1999 but was declared unsuccessful for not being able to qualify in the written examination and hence was not called for interview. He applied for scrutiny of his marks in General Science paper wherein he had secured 35 marks but the Commission did not find any mistake in the same. In the writ petition filed by him direction was given to re-evaluate his paper which subsequently led to the finding that actually he scored 63 marks instead of 35. On an LPA by the Commission, this judgment was set aside. The main question which arose for consideration was whether the learned Single Judge was justified in directing re-evaluation of the answer-book of the appellant in General Science paper when under the relevant rules of the Commission, there was no provision wherein a candidate might be entitled to ask for re-evaluation of his answer-book. It was held that adopting such a course as was done by the learned Single Judge would give rise to practical problems. Many candidates might like to take a chance and pray for re-evaluation of their answer-books. The Commission would have to then send the copies of individual candidates to examiners for re-evaluation which was bound to take time. The examination conducted by the Commission being a competitive examination, the declaration of final result would thus be unduly delayed and the vacancies would remain unfilled for a long time. Hence, keeping in view all these factors, the appeal was dismissed by the Hon’ble Supreme Court. High Courts Delhi Tulip I.T. Services Limited Vs. Punjab National Bank The petitioner company, an information technology service provider was an unsuccessful tenderer for computer networking connectivity in respect of a tender floated by the respondent and its technical bid was rejected. The petitioner filed the application under Section 9 of the Arbitration Act, 1996 by which interim orders were sought on the basis of the applicability of the Arbitration clause contained in terms of tender. The issue involved in the case was whether before the signing of agreement, an arbitration clause contained in the tender documents could be availed of by an unsuccessful tenderer. The Court held that the petitioner was not entitled to an interim order as there was no arbitration agreement in existence between the parties and accordingly no orders in favour of the petitioner under Section 9 could be passed. The Court further held that the petitioner could challenge the legality of the rejection of its technical bid in law in any other fora. Madras Meenakshiammal and Ors. Vs. Gopalakannan and Ors. The Present revision petition was filed against the order of the learned District Munsif refusing to mark the document filed by the plaintiff on his side. The Court held that merely the production of certain documents and getting them marked as exhibits by the plaintiff could not be construed to establish a claim, right or title. The Court had to consider whether those documents were relevant or helpful to the parties and decide the same by giving adequate reasons. As the said recourse had not been adopted by the Court, the learned District Munsif was directed to proceed with the suit by allowing the petitioners/plaintiffs to mark those documents and render a decision in the suit, on merits and in accordance with law. Kerala Sherafuddin Vs. State of Kerala The issue in this case was whether the respondent could be denied the service benefits including promotion/selection to higher posts, if otherwise eligible for, only on the ground that the respondents did not pass an examination, which admittedly had not been held. The Court held that the respondents could not be prejudiced only on the ground of not performing a task impossible of performance, as they were suitable and fit to hold the various posts they held and the only deficiency was that they had not passed the examination, which was never held. The court further held that Government was empowered to relax the rigours of any rules for certain situations under Rule 39 Part II of the Kerala State and Subordinate Service Rules and rightly did so, in the interests of justice and equity and the petition was therefore dismissed. Andhra Pradesh Darsi Ragamma, W/o. late Rangaiah Upparapalem and D. Arun Kumar, S/o. Late Rangaiah Minor, reptd. by first petitioner Smt. Darsi Ragamma Vs. Government of Andhra Pradeh, rep. by its Secretary Revenue (Assignment-II) Dept. and Ors. The petition was filed against the order of the Government cancelling the assignment of land. The petitioner argued that the revision petition was filed after lapse of fourteen years and government cancelled the assignment on the ground that the land was being cultivated by the respondent without considering the aspect of condonation of delay. The Court held that without there being a proper order as to condonation of delay on the revision petitions preferred by fifth respondent, the Government could not have set aside/cancelled the assignment in favour of petitioners. Therefore, both the Government Orders impugned in the Writ Petitions were set aside and it was ordered to remit back the matter to the Government with a direction to decide whether there was any justification to entertain revision petitions of fifth respondent after lapse of more than seventeen years, seeking cancellation of assignment made in favour petitioner. Disclaimer (1) While all reasonable care has been taken to ensure that the information provided in the "round up" and on the website is fair and accurate the company and its promoters and employees shall not in any way be responsible for the consequences of any action taken on the basis of reliance upon the contents of this "round up". (2) This is not a Spam mail. You have received this mail because you have either requested for it or someone must have suggested your name under our various referral programs. 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