J & K HC: if driver of offending vehicle has no endorsement permitting him to drive vehicle carrying dangerous and hazardous goods, Insurance Company is not liable to pay compensation

It is, thus, clear that the owner was aware of the nature of licence possessed by the driver engaged by him and also he was aware of the fact that on the driving licence of the driver, there was no such endorsement of carrying dangerous and hazardous goods.

12. Learned Tribunal seems to have acted too liberally in taking the view that the driver of the offending vehicle was competent to drive gas tanker for which he had undergone training. It is not a case of merely driving a vehicle of the type other than the one for which licence had been issued. It is rather a case of driving a special type of vehicle, which is meant for carrying dangerous and hazardous gas. Bringing out vehicle carrying dangerous and hazardous goods on public places involves a great element of risk to life and property of public at large. Owners of such vehicles must exercise special care to ensure that such vehicles are entrusted for driving and given in the charge of persons, who are duly trained and specifically authorized to take charge of such vehicles. No lenient view is justified if breach in this regard is proved by the insurer.

13. In my considered view, the assertion of learned counsel appearing for the insurance company regarding the fact that there was no endorsement on the driving licence of the driver of the offending vehicle carrying hazardous substance is legally tenable inasmuch as it is not a case of driving a vehicle of a type other than for which licence has been issued. Here the breach relates not to the type of vehicle but to the kind of goods for which the vehicle is meant for.

14. Viewed thus, appeal succeeds and the appellant-insurance company cannot be saddled with liability of indemnifying the owner (insured).

15. For all that has been said and discussed above, appeal is allowed to the extent of exonerating the appellant-insurance company from satisfying the award. Award and judgment rendered by the learned tribunal is modified by providing that the award shall be satisfied by the owner of the offending tanker-respondent No. 2.

 IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU

CIMA No. 13/2010 and CMP No. 14/2010

Decided On: 24.04.2017

United India Insurance Co. Ltd. Vs. Subash Singh and Ors.

Hon'ble Judges/Coram:

Tashi Rabstan, J.

Citation: MANU/JK/0587/2017, 2018 ACJ 1250

Print Page

J & K HC: Whether a person accused of the offence of rape can be released on bail subsequently on the ground of change of circumstances if the main prosecution witnesses who are examined do not support the prosecution's case?

It is pertinent to mention here that after the dismissal of second bail application of the petitioner, statements of four more prosecution witnesses have been recorded. Therefore, there is a change in circumstances since the dismissal of second bail application of the petitioner. {Para 6}

7) The petitioner has sought bail on the grounds that from the statements recorded during trial of the case, the prosecution version against him is not proved. It has been further contended that only on the ground that the petitioner is involved in a heinous offence his bail application cannot be rejected, particularly when, prima facie, the offence for which he has been charged is not made out against him. It has been contended that the statement of the prosecutrix does not inspire confidence and this aspect of the matter has not been dealt with by the trial court while rejecting the bail applications of the petitioner. It has been further contended that the petitioner has been in custody for the last about two years and all the material prosecution witnesses have already been examined and, therefore, there is no apprehension of the petitioner tampering with the prosecution witnesses.

13) After having gone through the statements of the prosecution witnesses, particularly statement of the prosecutrix, her mother and grandfather, there appears to be prima facie merit in the contentions raised by learned counsel for the petitioner. Although at the stage of considering the plea of bail, a meticulous analysis of the evidence led by the prosecution is to be avoided, yet, for the limited purpose of deciding this bail application, it does appear that the sexual intercourse alleged to have been committed by the petitioner upon the prosecutrix, who was major at the relevant time, appears to be consensual in nature. Therefore, a case for grant of bail in favour of the petitioner is made out. The learned trial court, while rejecting earlier bail applications of the petitioner, has not considered the evidence led by the prosecution even for the limited purpose of deciding the bail applications and has mechanically rejected the applications on the ground that the petitioner is involved in a heinous offence.

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR

Bail App No.91/2025

BASHARAT AHMAD BHAT  Vs.  UT OF J&K 

CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE

Pronounced on:19.12.2025.

Print Page

J & K HC: CDRs Without Voice Evidence Insufficient To Connect Co-Accused in NDPS Case

  The only material that connects the petitioner to the

alleged crime that is left is the CDR which has been collected by

the investigating agency during the investigation of the case. As

per analysis of the CDR, it appears that the petitioner was in

touch with the co-accused during the relevant period. The

question arises as to whether the same would be sufficient to

prima facie hold that the petitioner guilty of having committed the offence for which he has been booked. In the opinion of this

Court, CDR details showing contact between the petitioner and

co-accused, without there being any voice recording relating to

conversation between them, may not be sufficient to convict the

petitioner for the offence for which he has been booked. {Para 15}

HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT JAMMU

Case No. Bail App No. 21/2025

Sareed Ahmed Ganie  Vs UOI and anr.

Coram: HON’BLE MR. JUSTICE SANJAY DHAR, 

Pronounced on: 18.10.2025.

Print Page

J & K HC: Doctor who is not Neurologist can not give opinion if permanent disability of claimant relates to Neuro problem.

 From the above, it is clear that the disability certificate EXTP-RK is based upon the certificate dated 15.04.2014 issued by the Standing Medical Board which, in turn, has been issued on the basis of opinions of three Doctors from the fields of Psychiatry, Neuro-Surgery and Neurology. The witness Dr. Raj Kumar Bhagat examined by the claimant before the Tribunal has stated that he is only a consultant Surgeon and not a Neuro expert/Surgeon. He has also stated that the other two Members of the Medical Board are Physician Specialists and there was no Neuro expert/surgeon to assess the disability of the claimant. The said witness has gone on to state that the certificate of disability of the claimant is with respect to Neuro problems, as such, he cannot comment upon the Neuro related problem or disability. He has confirmed the fact that he has never examined the claimant. {Para 11}

12. It is an admitted fact that the disability of the claimant relates to Neuro problem. It is also an admitted case that Dr. Raj Kumar Bhagat, who was examined as a witness by the claimant, has neither treated, nor examined the claimant and he is not even associated with the field of Neurology. The question that arises for determination is, as to whether, on the basis of the statement made by a Doctor, who has neither examined the claimant, nor he is an expert in the relevant field, it can be stated that the claimant has suffered a particular type of disability simply on the basis of a certificate issued by the Medical Board.

 IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT JAMMU

Mac App. Nos. 96/2022 and 128/2022

Decided On: 11.05.2023

National Insurance Co. Ltd. Vs. Subash Chander and Ors.

Hon'ble Judges/Coram:

Sanjay Dhar, J.

Citation: MANU/JK/0412/2023.

Print Page

J & K HC: Daughter in law making allegation against her father in law that he has outraged her modesty-relevance of this allegation in deciding anticipatory bail application

Learned counsel for the petitioner has contended that the petitioner is aged 74 years and at this age it is improbable that he would have launch sexual assault upon none else than his own daughter-in-law. It has been submitted that the fact of the matter is that the husband of the prosecutrix, who happens to be the son of the petitioner, has passed away, whereafter the prosecutrix has re-married and she at the behest of her husband wants to have a share in the property of the petitioner. The learned counsel has submitted that already there is a civil litigation going on between the parties and the petitioner has filed a Suit for permanent prohibitory injunction against the prosecutrix and her husband before the Court of Sub-Judge, Nowshera in order to protect his possession over the land owned by him in village Hanjana ThakraTehsil Nowshera District Rajouri regarding which the prosecutrix and her husband are making persistent attempts make forcible entry. Copy of the interim order passed by the learned Sub Judge, Nowshera has also been placed on record.

{Para 4}

5. Learned counsel for the petitioner has also contended that it is improbable that the petitioner would sexually assault his daughter-in- law, that too, in presence of his wife. He has further submitted that the prosecutrix while making her statement under Section 164-A Cr.P.C., during investigation of the case, has introduced a new story by stating that after the death of her husband the petitioner had committed forcible sexual assault upon her on two occasions, which allegation does not find mention in the FIR lodged by her, which was registered on the directions of the learned Magistrate.

6. On the basis of aforesaid facts, learned counsel for the petitioner has contended that the impugned criminal prosecution launched by the prosecutrix against the petitioner is nothing but a device to wreak vengeance upon the petitioner and his wife so as to coerce them to set apart a share of their property in her favour.

7. Having heard learned counsel for the petitioner and having perused the documents place on record, it appears that there is prima facie merit in the submissions made by the learned counsel for the petitioner, as such, a case of grant of interim indulgence is made out in favour of the petitioner.

 IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT JAMMU

Bail App No. 109/2025 and CRMM No. 349/2025

Decided On: 25.04.2025

Mohd. Ayub Vs. Union Territory of J&K

Hon'ble Judges/Coram:

Sanjay Dhar, J.

Citation: MANU/JK/0372/2025.

Print Page

J & K HC: Magistrate issuing notice in Domestic violence Act is interlocutory order and Revision is not maintainable against said order

 An order issuing notice on an application does not decide the rights of the parties, therefore, such an order is interlocutory in nature. Such orders are passed by a Court to manage the proceedings without finally determining the rights of the parties. An interlocutory order is used to address procedural matters and it does not decide the rights of the parties conclusively. Therefore, such an order is not amenable to revisional jurisdiction of the superior court. In fact sub section (2) of Section 438 of BNSS creates a statutory bar for exercising revisional powers in relation to any interlocutory order. Thus the revisional court has rightly refused to entertain the revision petition filed by the petitioners. {Para 7}

 IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT SRINAGAR

CRM (M) No. 261/2025

Decided On: 21.05.2025

Aamina and Ors. Vs. Aamir Ahmad Mir and Ors.

Hon'ble Judges/Coram:

Sanjay Dhar, J.

Citation:  MANU/JK/0358/2025.

Print Page

J & K HC: Magistrate may issue pre-cognizance notice to the accused as per S 223 of BNSS in cheque bounce case

 Section 223 BNSS provides for issuance of pre-cognizance notice to the accused and said provision was not available in the corresponding Section 200 of the repealed Code. Such requirement provided under Section 223 of the BNSS by way of proviso appear to be justice orientated as the same takes care of any legitimate defence of the accused to be appreciated by the Magistrate even at an earliest, while holding a preliminary inquiry and is not barred at all even in respect of complaints under N.I. Act as hereinabove discussed. However, the non-observance of the requirements, provided under Section 223 BNSS, regarding the examination on oath of the complainant/witnesses and the issuance of the pre-cognizance notice shall not render the proceedings invalid. {Para 10}

11. The satisfaction of the competent Court, as regards the maintainability of the complaint, in terms of the accrual of cause of action, is covered under the “inquiry phase,” preceding the “taking of cognizance”. A Magistrate while entertaining a complaint under Section 138 of the Negotiable Instruments Act is not barred to have the observance of the provisions providing for pre-cognizance notice.

In the High Court of Jammu and Kashmir

(Before Mohd. Yousuf Wani, J.)

Mohd. Afzal Beigh Vs  Noor Hussain 

CRM(M) No. 374/2025 and CrlM No. 742/2025

Decided on May 2, 2025

Citation: 2025 SCC OnLine J&K 394. REad full Judgment here: Click here.

Print Page

J & K HC: Magistrate should not issue non-bailable warrant against accused at pre-cognizance stage of the complaint U/S 138 of NI Act

 So far as the case in hand is concerned, the learned Magistrate upon satisfying himself regarding to record the service of pre-cognizance notice could have inferred, the forfeiture of the right of hearing by the accused at pre-cognizance stage of the complaint and proceeded ahead on the complaint in accordance with law. There was no need for the Magistrate to compel the appearance of the accused by issuance of a subsequent nonbailable warrant as the pre-cognizance hearing was meant for him which he acquiesced. The Magistrate is within its powers to compel the attendance of the accused after taking cognizance on the complaint and even under such circumstances, the normal approach of the Magistrates should be issuance of summon followed by a bailable warrant if needed and the issuance of the non-bailable warrants should be the last option.{Para 12}

In the High Court of Jammu and Kashmir

(Before Mohd. Yousuf Wani, J.)

Mohd. Afzal Beigh Vs  Noor Hussain 

CRM(M) No. 374/2025 and CrlM No. 742/2025

Decided on May 2, 2025

Citation: 2025 SCC OnLine J&K 394

Print Page

High Court of Jammu & Kashmir Clarifies Law on Deferring Cross-Examination and preparation of Case calendar

Ravinder Kumar & Others vs. UT of J&K

Introduction

In a significant judgment delivered on May 19, 2025, the High Court of Jammu & Kashmir at Jammu, presided over by Hon'ble Mr. Justice Rajesh Sekhri, clarified the scope and procedure for deferring the cross-examination of prosecution witnesses in criminal trials. The case, CRM(M) No. 352/2025, was filed by Ravinder Kumar and others (the petitioners) against the Union Territory of Jammu & Kashmir (the respondent), challenging the order of the Principal Sessions Judge, Jammu, which had declined their request to defer the cross-examination of six key eye-witnesses in a murder trial.

Print Page

J & K HC: Under which circumstances the Court can defer cross-examination of set of prosecution witnesses after preparation of Case calendar?

 True it is, that prosecution witnesses are expected to testify in their chief examination on the lines of their statements recorded, during investigation, under Sections 161 or 164 Cr.P.C., and any improvement or deviation by them from said statements, may render their depositions unworthy of credence. However, it is the apprehension of improvisation by the prosecution witnesses in their cross examinations to circumvent the defence strategy which is to be taken into consideration by the Court at the time cross examination of a witness or set of witnesses is sought to be deferred and if that apprehension is well founded, it can hamper the prospects of a fair trial, a basic postulate of criminal jurisprudence. The circumstances narrated by the petitioners, in the present case, justified the exercise of discretion by the Court, in terms of sub section 3 of Section 254 BNSS.{Para 24}

25. If the principle of law expounded by Hon‟ble Supreme Court in Rasheed, is carefully glanced over, it is manifest that, as far as possible, a plea for deferral under Section 254(3) BNSS, must preferably be made before the preparation of the case calendar or at the earliest available opportunity,before the defence strategy would become known to the prosecution. A request for deferral must be premised on sufficient reasons and prejudice is the determinating factor, to be borne in mind.

HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT JAMMU

Case: CRM(M) No. 352/2025

 Ravinder Kumar and others  V/s   UT of J&K 

 Coram: HON’BLE MR. JUSTICE RAJESH SEKHRI, JUDGE

Pronounced on: 19.05.2025.

Print Page

Whether wife is barred from lodging FIR U/S 498A of IPC against her husband on the ground that she has filed application U/S 12 of Domestic violence Act?

  The contention of the petitioner that respondent No. 3 is debarred from lodging FIR as she has already filed an application under Section 12 of the DV Act is also without any merit. The scope of proceedings under Section 12 of the DV Act and the scope of criminal proceedings initiated pursuant to the lodging of FIR are entirely different from each other. While in proceedings under Section 12 of the DV Act, the victim of domestic violence can be awarded monetary compensation and she can also be given certain protective orders in her favour, but the criminal proceedings are intended to punish the perpetrator of a crime, may be a matrimonial crime. So, the provisions of DV Act and IPC act in different fields. Therefore, merely because respondent No. 3 has filed an application under DV Act, she cannot be debarred from lodging FIR against the petitioner for investigating the acts of cruelty alleged to have been perpetrated by him against her. {Para 7}

HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT JAMMU

CRM(M) No. 141/2023

CrlM No. 249/2023

Danish Chauhan Vs Director General J&K Police and others

Coram:

HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE

Dated: 20.02.2023.

Print Page

Under which circumstances the offences under the Essential commodities Act are triable by a Magistrate?

 In the judgment rendered by the Hon'ble Apex Court reported in 2001 Cri LJ 4722, it has been held that after lapse of two ordinances the cases registered under Essential Commodities Act 1955 are to be tried by the Magistrate having jurisdiction because in the Schedule under the head "Offences Against Other Laws" in the Central Code the offences carrying imprisonment of not more than seven years were triable by the Magistrate of the First Class and it is in that backdrop it was held that Magistrates having the jurisdiction will try the offences registered under the Essential Commodities Act 1955, whereas, in terms of Section 30 of the State Code which overrides Section 29 as well as II Schedule offences carrying imprisonment upto seven years are shown triable by the Chief Judicial Magistrate. It is in that backdrop it was clear that the cases registered under Essential Commodities Act were not exclusively triable by the Sessions Court. {Para 7}

(2011) 09 J&K CK 0021

In The Jammu & Kashmir High Court (Srinagar Bench)

Case No : Criminal Ref. No. 03 of 2009

State of Jammu & Kashmir Vs Mushtaq Ahmad Ganai

Dated : 22-09-2011

Citation : (2011) 3 JKJ 65

Hon'ble Judges : Virender Singh, J

---

Conflict between Section 30 of the Code of Criminal Procedure and Schedule II under the head "Offences Against Other Laws" vis-a-vis trial by the Court and the law as laid down in State v. Ashok Kumar & Ors. has prompted the court of learned Sessions Judge Srinagar to refer the matter to this Court for opinion while having recourse to Section 432 of the Code. As per part of the Schedule II under the head "Offences Against Other Laws", it is provided that where the punishment for the offence is imprisonment of seven years or upwards same is to be tried by the Court of Sessions as reflected in Column 6th of the said Schedule. Some of the offences under Essential Commodities Act are punishable with imprisonment which may extend upto seven years so as per Schedule referred the offence is triable by the Court of Sessions. In the Central Code of Criminal Procedure under the head "Offences Against Other Laws" when the imprisonment is not more than seven years the case is triable by the Magistrate of the First Class.

2. The position vis-a-vis trial of the cases by the court as reflected in the If Schedule is subject to the control as contained in Section 30 of the Code. Section 29(2) of the Code reads as under:-

"When no court is so mentioned, it may be tried by the High Court or subject as aforesaid by any Court constituted under this Code by which such offence is shown to be triable in the sixth column of the Second Schedule under the heading offences against the other laws."

3. The position of Section 29 is controlled by Section 30 which reads as under:-

"Offences punishable with imprisonment not exceeding seven years. Notwithstanding anything contained in sections 28 or 29, a Chief Judicial Magistrate or where there is no Chief Judicial Magistrate, the Additional District Magistrate shall have the powers to try as a Judicial Magistrate all offences not punishable with death or imprisonment for life or imprisonment for a term not exceeding seven years. "

4. The plain language of Section 30 provides that when an offence is punishable with imprisonment for a term not exceeding seven years same is triable by the Chief Judicial Magistrate. The position of the law being clear, there is no requirement of declaring the part of the Schedule II under the head "Offences Against Other Laws" as invalid and inoperative. Therefore, in terms of Section 30 the offences carrying imprisonment of not exceeding seven years are triable by the Chief Judicial Magistrate.

5. The flashback which has given rise to such a situation is precisely required to be noticed.

Offences punishable under the Essential Commodities Act 1955 were to be tried by the Magistrate of the First Class. In the year 1981 the Essential Commodities (Special Provisions) Act, 1981 came into force in terms whereof various provisions of the Act of 1955 were amended/substituted. In terms of Section 12(A) of the Act Special Courts were constituted for trial of the said offences. Session courts were notified to be the Special Courts, accordingly, from the year 1981 cases were tried by the Special Courts.

The said Act of 1981 was initially to remain in force for five years but finally its application was extended upto fifteen years which expired in the year 1996, then, Essential Commodities (Special Provisions) Ordinance 1997 was promulgated followed by the Essential Commodities Amendment Ordinance 1998. Both the two ordinance lapsed so were not replaced by any enactment, therefore, Special Courts established in terms of Section 12 (A) of the Special Provisions of the Act 1981 ceased to function.

The position for trial of the offences was, therefore, relegated to the position obtaining in terms of the provisions of Essential Commodities Act 1955. This position is also clear from the Hon'ble Apex Court's judgment reported in 2001 Criminal Law Journal 4772 wherein it has been held that after lapse of two ordinance 1997 and 1998, the consequential position that followed was that the cases registered under the Essential Commodities Act 1955 were to be tried by the Magistrate having jurisdiction as it was being done prior to enactment of Essential Commodities Special Provisions Act 1981.

The position of the cases registered under Essential Commodities Act 1955 continued to be presented before the Special Courts perhaps on the premise that for some of the contravention of the orders issued u/s 3 of the Act were punishable with imprisonment extending to seven years.

6. The Single Bench of this Court in the judgment rendered in case State v. Ashok Kumar & Ors. has held that the offences u/s 7(1)(a)(2) EC Act are to be tried by the Court of Sessions because punishment prescribed there for extended to seven years. But while rendering the judgment it appears that the controlling position of Section 30 of the Code has not been noticed and while relying on the part of the II Schedule under the head "Offences Against Other Laws" it has been held that the offence which carry punishment to the extent of seven years are triable by the Court of Sessions, same law in view of the clear position of Section 30 of the Code of Criminal Procedure does not hold good.

7. In the judgment rendered by the Hon'ble Apex Court reported in 2001 Cri LJ 4722, it has been held that after lapse of two ordinances the cases registered under Essential Commodities Act 1955 are to be tried by the Magistrate having jurisdiction because in the Schedule under the head "Offences Against Other Laws" in the Central Code the offences carrying imprisonment of not more than seven years were triable by the Magistrate of the First Class and it is in that backdrop it was held that Magistrates having the jurisdiction will try the offences registered under the Essential Commodities Act 1955, whereas, in terms of Section 30 of the State Code which overrides Section 29 as well as II Schedule offences carrying imprisonment upto seven years are shown triable by the Chief Judicial Magistrate. It is in that backdrop it was clear that the cases registered under Essential Commodities Act were not exclusively triable by the Sessions Court.

8. The controversy now no more survives because Schedule II for the chapter offences against other laws has been amended and brought at par with the Central Code. Said amendment reads as under:-

In the Code of Criminal Procedure, Samvat 1989, for the Chapter "Offences against other Laws" appearing at the end of Schedule II, the following Chapter shall be substituted, namely:

Offences Against other Laws

Offences	Cognizable or non-cognizable		Bailable or non-bailable	By what court triable
1.	2.		3.	! 4.
If punishable with death, imprisonment for life or imprisonment for more than 7 years	Cognizable		Non-bailable	Court of Sesssions.
If punishable with imprisonment for 3 years and upwards but not more than 7 years	Cognizable	Non-bailable			Magistrate of the First Class.
If punishable with imprisonment for less than 3 years or with fine only.	Non-cognizable	Bailable			Any Magistrate."

9. It is now clear that the offences against other laws punishable with imprisonment for not more than seven years are triable by the Magistrate of the First Class. Thus, under the Essential Commodities Act 1955 any offence which shall be punishable with imprisonment upto seven years i.e. including seven years are to be tried by the Judicial Magistrate First Class within whose jurisdiction occurrence has taken place.

10. The references stand answered accordingly.

Copy of this judgment shall be circulated among all the judicial officers of the State.

Print Page

Can a drug retailer escape liability U/S 27 of the Drugs and Cosmetics Act if they obtained a spurious drug from a licensed dealer?

As already noted, this petition has been filed by the retailer, in whose shop the sample of the subject drug was collected. The contention of the petitioner is that it is a case of "spurious drug" and as such, the petitioner could not have been prosecuted as he had obtained the subject drug from the licensed dealer. {Para 14}

 

15. Whether it is a case of spurious drug or sub-standard quality drug, the retailer cannot escape his liability merely because he has obtained the same from a licensed dealer. Section 27 of the Act clearly provides that any person, who manufacturers for sale or for distribution, or sells, or stocks or exhibits or offers for sale or distributes any drug, deemed to be spurious drug under section 17B of the Act, is liable to punishment. There is material on record as also a specific allegation in the impugned complaint that the petitioner had stored the drug in question and exhibited it for sale in his shop and the said drug was found to be spurious in nature. Once there is material on record to support this allegation, it cannot be stated that no offence is made out against the petitioner.

16. It is contended by the petitioner that he has obtained the subject drug from a licensed dealer and there was nothing on record to show that he had not property stored it. Thus, no offence is made against him.

17. In the above context, it is to be noted that Section 19 (3) of the Act provides that a person other than the manufacturer of a drug, cannot be prosecuted if he shows that he has acquired the drug from a duly licensed manufacturer, distributor or dealer and that he did not know and could not, with reasonable diligence, ascertain contravention of the provisions of the section and further that the drug or the cosmetic was properly stored and remained in the same state as, when he acquired it. The burden to prove the aforesaid three conditions would always be upon the concerned dealer.

18. In the instant case, there is nothing on record to show that while the drug was in possession of the petitioner, Khalid Bhashir, it was properly stored and remained in the same state as when he acquired it. These are the facts, which have to be established by the petitioner during the course of the trial. From the material on record of the trial court, there is nothing to suggest that the petitioner had complied with the aforesaid conditions.

19. In view of the above, the prosecution as against the petitioner cannot be scuttled at this stage particularly when there is material on record regarding his complicity in the matter.

 IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT JAMMU

CRMC No. 396/2018 and CRM (M) No. 93/2021 (O&M)

Decided On: 09.02.2023

Sundaram Surgicals and Ors.  Vs.  Drugs Inspector Doda and Ors.

Hon'ble Judges/Coram: Sanjay Dhar, J.

Citation: MANU/JK/0057/2023

Print Page

Is the Central Drugs Laboratory report conclusive against a manufacturer if they did not have the opportunity to get the sample re-analyzed?

 From the foregoing analysis of law on the subject, it is clear that while a manufacturer has a valuable right of getting the sample re-tested/re-analyzed by the Central Drugs Laboratory so as to adduce evidence in controversion of the report of the Government Analyst but once the sample has been tested by the Central Drugs Laboratory, there is no occasion for sending the sample again for testing to the same laboratory. It has been further laid down by the Supreme Court in the aforequoted judgment, that the conclusiveness meant in Section 25(3) of the Act has reference to the person referred to in the said subsection, meaning thereby that the facts stated in the report of the Government Analyst would become conclusive only against the person who despite having been provided a copy of the report, has failed to notify his intention to adduce evidence regarding facts stated therein within a period of 28 days. This conclusiveness of the facts stated in the report would not come into play in a case where the manufacturer or any other person has either not been provided the copy of the report or where such manufacturer or person had no occasion to notify his intention to adduce evidence in controversion of the report. In view of the above, the question whether in a particular case, conclusiveness is to be attached to the report of the Central Drugs Laboratory and whether valuable right of a manufacturer to adduce evidence in controversion of the report would get violated in a particular case depends upon the facts and circumstances peculiar to that case. {Para 16}

17. In case, like the present one, the manufacturers/petitioners were not provided the copy of the report of the CDL, Kolkata, or if at all the same was provided, the petitioners/manufacturers could not ask for reanalysis of the sample as the same had already been tested by Central Drugs Laboratory. Therefore, the report would not be conclusive against the petitioners. The petitioners would be at liberty to adduce evidence in controversion of the said report before the trial court. In these circumstances no prejudice has been caused to the petitioners even if the complaint has been filed when the shelf life of the drug in question was due to expire or because in the circumstances explained hereinbefore, they could not seek reanalysis of the sample of the drug in question. The report of the CDL, Kolkata, as already stated, in the facts and circumstances of the case is not conclusive against the petitioners and they have a right to controvert the same by leading evidence before the trial court. 

 IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT SRINAGAR

CRMC No. 169/2016

Decided On: 01.11.2022

Swiss Garnier Life Sciences and Ors.  Vs. Union of India

Hon'ble Judges/Coram:

Sanjay Dhar, J.

Citation: MANU/JK/1186/2022

Print Page

Can the court allow an amendment of the plaint to set up a total new cause of action or incorporate new pleas that are inconsistent with the original plaint?

 In the original plaint, the plaintiff claims that he is  owner in possession of one half of the property left behind by his uncle, deceased Salam Bhat, whereas other half is owned and possessed by the defendants who also happen to be the successors-in-interest of other cousin brother of Salam Bhat. In the original plaint, it is claimed by the plaintiff that the deed of adoption in favour of defendant No.1 is null and void and, as such, the property of deceased Salam Bhat has to devolve upon his heirs as per Muslim Personal Law. However, by way of proposed amendment, the plaintiff claims that in the absence of deed of adoption, he would be the lone legal heir entitled to ownership and possession of the property left behind of deceased Salam Bhat, which is clearly in contradiction to his claim made in the original plaint.

15) Apart from the above, in the original plaint, the plaintiff claims a decree of partition in respect of the suit property against the defendants whereas by way of proposed amendment, he has sought substitution of relief of partition by a decree of possession of whole of the property left behind by deceased Salam Bhat. Thus, the plaintiff seeks to change the very nature of the suit. Even the cause of action is sought to be changed by the plaintiff by amending the para of the plaint which relates to the cause of action. In the original suit, the plaintiff has claimed that he had sought partition of the property from defendant No.1 and when he refused, he filed the suit but by way of proposed amendment, the plaintiff has pleaded that he had sought possession of the property from defendant No.1 which he refused.

16) Inconsistent pleas can be taken and even subsequent events can be allowed to be incorporated by way of amendment but not when the total cause of action is going to be changed. There is no doubt that liberal approach has to be adopted while considering an application for amendment of the pleadings in order to avoid multiplicity of litigation but it does not mean that the plaintiff should be permitted to set up a total new cause of action or incorporate new pleas which are inconsistent with the pleadings of the original plaint.

17) The amendment sought by the plaintiff by way of application which he had filed before the learned trial court, if allowed would have amounted to not only the change of cause of action but also to change of nature of the suit. Therefore, the same did not deserve to be allowed and the learned trial court has rightly rejected the same. The impugned order passed by the learned trial court, therefore, does not call for any interference by this Court. The petition lacks merit and is dismissed accordingly.

Jammu & Kashmir High Court - Srinagar Bench

Abdul Aziz Bhat vs Mohammad Iqbal Bhat And Ors on 16 December, 2022

OWP No.1353/2011

Read full Judgment here: Click here

Print Page

To what extent general provision of criminal law are applicable to prosecution under National Investigation Agency Act?

 What is held by the Division Bench of Delhi High Court in Farhan Sheikh‟s case (supra) is condensed in para (89) of the judgment which reads thus:

“89. Thus, so far as the constitution of NIA is concerned, it a complete code. However, the same cannot be said about the substantive offences, and the procedural laws which would be applicable for the purpose of investigation and conduct of trial of such offences. To the extent that Section 16 of the NIA Act prescribes powers of Special Courts, the same would prevail. However, in respect of matters not dealt with under the Act relating procedures, and the substantive offences, it is the provisions of the Code and the substantive laws enumerated in the schedule to the Act, which would be relevant. Even if, the Act is considered to be complete Code in so far as it provides the right of appeal, in the light of the aforesaid discussion, we are inclined to hold that the prescription of limitation in Section 21(5) of the NIA Act is directory and not mandatory and that the High Court is empowered to entertain and consider application under Section 5 of the Limitation Act seeking condonation of delay in filing the appeal. The said application is maintainable”.

 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU

CrlA(D) No. 46/2022 ,CrlM No. 1474/2022

National Investigation Agency Through Its Chief Investigating Officer, Jammu Vs Mr. Vishal Sharma, DSGI.

CORAM:

HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

HON’BLE MR. JUSTICE MOHAN LAL, JUDGE

Author: Sanjeev Kumar, J.

Pronounced on 13..12.2022.

Read full Judgment here: Click here

Print Page

Does S 21 of the NIA Act exclude the application of S 4 to 24 of the Limitation Act for determining the limitation period for filing an appeal under the NIA Act?

  The point that arises for determination is, whether NIA Act, in particular Section 21 whereof expressly excludes the application of Sections 4 to 24 of the Limitation Act for determining the period of limitation for filing an appeal under NIA Act. One view is that by providing for condonation of delay after the expiry of 30 days‟ period prescribed for filing appeal, but not beyond 90 days from the date of judgment, sentence or order appealed from, the application of Section 5 of the Limitation Act is expressly excluded. The other view is that exclusion of Sections 4 to 24 must be express and not by necessary implication. We are, however, inclined to go by the later view. This is because Section 21 of the NIA Act has no where specifically excluded the application of Sections 4 to 24 (inclusive) for determining the period of limitation prescribed for filing appeal under Section 21 of the Act. There is, of course, similar provision in first proviso to Section 21(5) which gives discretion to the High Court to entertain an entertain an appeal after expiry of period of limitation of 30 days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within a period of 30 days. However, second proviso to Section 21(5) of the Act ordains that no appeal shall be entertained after the expiry of period of 90 days. {Para 19}

20 Having regard to the object of the NIA Act and the right of the accused to fair trial, the word “shall” used in second proviso to Section 21(5) of the Act deserves to be read as “may”, else the right of appeal given to the accused against his conviction would become a causality if the doors of the Appellate Court are shut to him on the ground of limitation. The right to fair trial is a right vested in the accused under Article 21 of the Constitution. The right of appeal, wherever it is provided, is a matter of substance and essentially a remedial right. If this remedy is put in jeopardy by creating bar of limitation and leaving no discretion in the Court to condone the delay even in well deserving cases, it would render the remedy otiose. We, therefore, cannot put any construction or interpretation on a provision that has the effect of taking away the fair trial right of the accused. It is in this context, we must hold that right of the accused to avail the remedy of appeal is a substantive and concomitant right of fair trial. This is in this background, the Delhi High Court in the case of Farhan Sheikh vs. State (National Investigation Agency), 2019(7) AD (Delhi) 233, has taken the view that the word “shall” used in second proviso to Section 21(5) shall be read as “may” and that the second proviso is directory in nature. The Court further observed that the High Court shall have the discretion to condone the delay in appropriate cases even after expiry of period of 90 days. The Delhi High Court rightly did not agree to lift and apply decisions based on the interpretation of civil provisions, rendered in the context of civil and taxing statutes.

35 We have already held that the provisions of second proviso to sub-section 5 of Section 21 of the Act are directory in nature and, therefore, an application for condonation of delay under Section 5 of the Limitation Act is maintainable.

 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU

CrlA(D) No. 46/2022 ,CrlM No. 1474/2022

National Investigation Agency Through Its Chief Investigating Officer, Jammu Vs Mr. Vishal Sharma, DSGI.

CORAM:

HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

HON’BLE MR. JUSTICE MOHAN LAL, JUDGE

Author: Sanjeev Kumar, J.

Pronounced on 13..12.2022.

Read full Judgment here: Click here

Print Page

Whether investigating officer can seek Production warrant U/S 267 of CRPC for recording statement of a witness during investigation?

 Section 267(1) of the Cr.P.C under which the appellant had moved an application before the trial Court reads as under: 

“267. Power to require attendance of prisoners. (1) Whenever, in the course of an inquiry, trial or other proceeding under this Code, it appears to a Criminal Court,- (a) that a person confined or detained in a prison should be brought before the Court for answering to a charge of an offence, or for the purpose of any proceedings against him, or (b) that it is necessary for the ends of justice to examine such person as a witness, the Court may make an order requiring the officer in charge of the prison to produce such person before the Court for answering to the charge or for the purpose of such proceeding or, as the case may be, for giving evidence. (2)…………………………………………………………………..

(3)………………………………………………………………….

30 Form a plain reading of Section 267(1), it clearly transpires that a Criminal Court, in the course of an enquiry, trial or other proceedings under the Code of Criminal Procedure, can direct a person confined or detained in a prison to be produced before the Court for answering to a charge of an offence or for the purpose of any proceedings against him. The criminal Court is further empowered to direct the officer in-charge of the prison to produce any person who is required to be examined as a witness for the purpose of giving evidence.

 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU

CrlA(D) No. 46/2022 ,CrlM No. 1474/2022

National Investigation Agency Through Its Chief Investigating Officer, Jammu Vs Mr. Vishal Sharma, DSGI.

CORAM:

HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

HON’BLE MR. JUSTICE MOHAN LAL, JUDGE

Author: Sanjeev Kumar, J.

Pronounced on 13..12.2022.

Read full Judgment here: Click here

Print Page

Whether a criminal court can refuse to issue production warrant U/S 267 CrPC when no case is pending trial or enquiry before it?

 In view of what we have discussed herein above we answer the question referred to us as under:-

"The Police can seek permission to remove an accused from judicial custody to police custody for completion of investigation in another case and for this purpose production warrant under Section 267 CrPC. can be issued. The expression "other proceeding" used in Section 267(1) and "for the purpose of any proceedings" occurring in Section 267(1)(a) would include "investigation" as defined under Section 2(h) CrPC.{Para 31}

 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU

CrlA(D) No. 46/2022 ,CrlM No. 1474/2022

National Investigation Agency Through Its Chief Investigating Officer, Jammu Vs Mr. Vishal Sharma, DSGI.

CORAM:

HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

HON’BLE MR. JUSTICE MOHAN LAL, JUDGE

Author: Sanjeev Kumar, J.

Pronounced on 13..12.2022

Print Page

Whether the court can cognizance of an offence for dishonour of cheque even if original power of attorney is not filed alongwith complaint?

  From the aforesaid analysis of law on the subject, it is clear that in a case where the complainant is a company, an authorized employee can represent the said company. Once an averment to this effect is made in the complaint, it is sufficient for the Magistrate to take cognizance and issue process. It also emerges that in case authority of a person filing complaint on behalf of the company is disputed by the accused, the same would be a matter of trial to be decided during the course of trial and it would not be a ground to dismiss the complaint at the threshold itself. The ratio laid down in these judgments has not been taken note of either by Delhi High Court or by Madras High Court in the judgments relied upon by the petitioner. Thus, the ratio laid down in these judgments to the effect that production of original Power of Attorney is necessary at the time of taking cognizance of the complaint under Section 138 of NI Act, is not the correct position of law. {Para 12}

13) In the instant case, the respondent/complainant has specifically pleaded that Shri Basharat Gul is the duly constituted Attorney of the Bank who is authorized to institute the complaint and verify the pleadings. A copy of the Power of Attorney has been annexed to the complaint. Therefore, the learned Magistrate was justified in taking cognizance of the complaint and issuing process against the petitioner on the basis of the impugned complaint.

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR

CRM(M) No.88/2020

AB. RASHEED BHAT  Vs. HDFC BANK LTD 

CORAM:  MR. JUSTICE SANJAY DHAR, JUDGE

Pronounced on:21.10.2022

Print Page