Gujarat High Court Weekly Roundup: March 21 To March 27, 2022

NOMINAL INDEX

Janakbhai @ Alpeshbhai Mafatbhai Rabari & 1 Other(S) Versus State Of Gujarat 2022 LiveLaw (Guj) 82

Mansukhbhai Valjibhai Kumarkhaniya (Devipujak) & 3 Other(S) Versus State Of Gujarat & 5 Other(S) 2022 LiveLaw (Guj) 83

Bharatbhai Jayantilal Patel (Deleted) v. State Of Gujarat 2022 LiveLaw (Guj) 84

Dilip Bhavanishankar Yadav v. State Of Gujarat 2022 LiveLaw (Guj) 85

Mayank Jayantbhai Shah S/O Jayant Manharlal Shah Versus State Of Gujarat 2022 LiveLaw (Guj) 86

A B C (Victim) vs State Of Gujarat 2022 LiveLaw (Guj) 87

Shantaben Ambalal Patel & 1 Other(S) Versus Sunitaben Vijaykumar Joshi 2022 LiveLaw (Guj) 88

Chauhan Mahmadrafik Abdul Latif Versus Oil And Natural Gas Corporation Limited Through Authorized Person 2022 LiveLaw (Guj) 89

M/s New Nalbandh Traders Versus State of Gujarat 2022 LiveLaw (Guj) 90

Manoj @ Munnabhai Ashwinbhai Somabhai Parmar Versus Director General Of Police 2022 LiveLaw (Guj) 91

Ramsingbhai Saburbhai Patel vs State Of Gujarat 2022 LiveLaw (Guj) 92

Union Of India Thro Amitkumar, Intelligence Officer Or His Successor In Office Versus State Of Gujarat 2022 LiveLaw (Guj) 93

Judgments/Orders of the Week

1. Can't Reject Compromise For Compoundable Offence Merely Because Accused Was Also Charged Under SC/ST Act But Acquitted: Gujarat HC

Case Title: Janakbhai @ Alpeshbhai Mafatbhai Rabari & 1 Other(S) Versus State Of Gujarat

Citation: 2022 LiveLaw (Guj) 82

The Gujarat High Court permitted compounding of offence under Section 323 of IPC, notwithstanding that the accused was also originally charged under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The Bench comprising Justice Ashokkumar Joshi noted that the Court below had acquitted the Petitioners-accused for alleged commission of offences under Sections 504, 506(2), 427 read with 114 of the IPC and Sections 3(1)(x) of the SC/ST Act and no appeal against such acquittal was preferred by the complainant/ State.

2. 'Police Were Swayed By The Fact That They Belong To A Particular Community': Gujarat High Court Orders Probe Into Custodial Torture Of Two Couples

Case Title: Mansukhbhai Valjibhai Kumarkhaniya (Devipujak) & 3 Other(S) Versus State Of Gujarat & 5 Other(S)

Citation: 2022 LiveLaw (Guj) 83

The Gujarat High Court has come down heavily on the police for being "swayed by the fact that the Petitioners belong to a particular community" while investigating activities of theft and other wrongs under Sections 328 and 394 of IPC has expressed dismay at the "apathy of the police officials, more particularly senior officers…"

Justice Nikhil Kariel was hearing a special criminal application filed by the Petitioners involving "extreme excess" by the police authorities including senior officers of the level of DySP and SP who were responsible for conducting an impartial inquiry. The Bench noted that the victims, members of a certain community, were earning their living through honest occupation when an FIR was filed against two unknown males and unknown females. According to the inquiry conducted by Respondent No. 6, the Petitioners 1 and 2 (brothers) were passing on a motorbike and were intercepted by the police. When they did not stop, they slipped and were caught by the police. It was observed that the only evidence against the Petitioners was their own confession which was used for submitting the chargesheet. Subsequently, the charges against the Petitioners did not stand during trial.

3. Dispute Prima Facie Of Civil Nature: Gujarat High Court Grants Anticipatory Bail In ₹1,000 Crore Alleged Cheating Case

Case Title: Bharatbhai Jayantilal Patel (Deleted) v. State Of Gujarat

Case Citation - 2022 LiveLaw (Guj) 84

The Gujarat High Court recently granted anticipatory bail to the Applicants-accused in connection with an alleged case of cheating to the tune of Rs. 1,000 crore.

It was alleged that the applicants had misused terms and conditions of agreement and disbursed only Rs. 9 crore, with object to take over the company and its properties worth approximately Rs.1000 crores.

While allowing the plea for pre-arrest bail filed by the accused charged for alleged commission of offences under Section 120B, 420, 406 and 114 of IPC, Justice Ilesh Vora said,

"prima-facie, it appears that the dispute is purely a civil in nature. The principal accused Bharat Patel is passed away. The applicants have cooperated in the investigation. Whole case is based on documentary evidence and same has been collected by the IO during the course of investigation."

4. Preventive Detention Not Tenable When Other Penal Laws Sufficient To Deal With The Situation: Gujarat High Court

Case Title: Dilip Bhavanishankar Yadav v. State Of Gujarat

Case Citation: 2022 LiveLaw (Guj) 85

"Unless and until, the material is there to make out a case that the person has become a threat and menace to the Society so as to disturb the whole tempo of the society and that all social apparatus is in peril disturbing public order at the instance of such person, it cannot be said that the detenue is a person within the meaning of section 2(b) of the Gujarat Prevention of Anti Social Activities Act, 1985", the Gujarat High Court has opined.

The Bench comprising Justice Rajendra Sareen was hearing a special civil application against the order of detention dated December 2021 against the Petitioner herein under Section 3(2) of the Act.

5. Improper Disposal Of Hazardous Waste: Gujarat HC Grants Bail To Director Of Chemical Company, Says Transporter Liable To Ensure Waste Reaches Treatment Plant

Case Title: Mayank Jayantbhai Shah S/O Jayant Manharlal Shah Versus State Of Gujarat

Citation: 2022 LiveLaw (Guj) 86

The Gujarat High Court recently granted bail to the Director of a chemical company, in connection with disposal of the hazardous waste material produced by it in a creek, causing injury to two persons.

The Bench comprising Justice Gita Gopi noted that the company had entered into an agreement with M/S Sangam for transporting the waste material to the treatment plant in accordance to CPCB Co-processing guidelines 2016 and 201. Thus, it held,

"Sangam was authorised to provide the work of collection, transportation of hazardous waste material to Dalmia Cement Bharat Limited plants at Odhisa, Karnataka and Bihar, and the authorisation for transportation of hazardous waste materials was in accordance to CPCB Co-processing guidelines 2016 and 2017, and therefore, it would be the responsibility of the transporter to take waste by-products to its destination. The petitioner company or the petitioner himself would have no knowledge of any misdeed of the transporter. The liability would lie on the company who engages the transporter and it is the duty of the transporter to see that the said waste product reaches plant or to its destination."

6. Pregnancy Caused By Rape May Constitute Lifelong Mental Agony, Pose Socio-Economic Problems: Gujarat High Court Grants Relief To Minor

Case Title: A B C (Victim) vs State Of Gujarat

Citation: 2022 LiveLaw (Guj) 87

The Gujarat High Court recently allowed the plea of a minor rape victim to terminate her 6 weeks old pregnancy, on the ground that if pregnancy continues, it would cause lifelong mental agony to the her coupled with socio-economic problems.

"Petitioner is pregnant because of forcible rape by the accused...because of continuation of pregnancy, it would cause or constitute a grave injury to the mental health of the minor – victim coupled with the fact that bearing and rearing of child in the womb would create a great mental agony to her for her entire life and invite many other socio-economical problems. This can be said to be a grave injury to the mental health of the pregnant woman."

7. Appellate Court Can't Interfere With Interim Order Unless Trial Court Did Not Consider Material In Proper Perspective/ Misdirected Itself: Gujarat HC

Case Title: Shantaben Ambalal Patel & 1 Other(S) Versus Sunitaben Vijaykumar Joshi

Case Citation: 2022 LiveLaw (Guj) 88

Affirming the settled law that Appellate Courts must not disturb the discretionary order of the Trial Court at interim stage even if second view of the matter is possible, the Gujarat High Court has allowed an appeal challenging lower court's order declining to grant interim injunction in respect of a construction, allegedly interfering with Appellant's easementary rights.

The Bench of Justice AP Thaker ordered status quo with respect to the construction towards the eastern wall of the Plaintiff's residence till both the parties lead their evidence in support of their claim and counter-claim. It said,

"Prima facie, it appears that the plaintiffs have put up this construction in his own land keeping certain portion of land open for common wall. Now, on perusal of the Photograph produced in the matter, it clearly appears that the constructions of the defendant is completely adjacent with the wall of the plaintiffs. At this juncture, it is also pertaining to note that defendant has also filed counter claim for closure of the window and balcony of the plaintiffs which is on the eastern side wall of the property of the plaintiff. Thus, prima-facie it appears that when suit was filed there was no construction, obstructing the window and balcony of the plaintiff's property on the eastern side. Now, there is allegation and counter allegation, regarding the easementary right as well as regarding illegal construction and there is also counter claim for removal of window and balcony. Under these facts and circumstances, it is necessary that status-quo be maintained till both the parties lead their evidence in support of their claim and counter-claim."

8. "Public Organisations Must-Have Regard For Livelihood Of Persons In Armed Forces": Gujarat HC Imposes INR 50,000 Fine On ONGC For Exclusion Of Ex-serviceman From Job post

Case Title: Chauhan Mahmadrafik Abdul Latif Versus Oil And Natural Gas Corporation Limited Through Authorized Person

Citation: 2022 LiveLaw (Guj) 89

The Gujarat High Court has imposed a fine of INR 50,000 on Oil and Natural Gas Corporation Limited while holding as follows;

"since it prima facie appears that the exclusion of the petitioner was not by an accident and further, in any case, the respondent organization, more particularly, being a Public Sector Undertaking under the Government of India was required to act fairly, more particularly, while considering the candidature of an Ex-Servicemen candidate, which the respondents have not done, hence this is a fit case for imposition of costs. Thus, costs quantified at Rs. 50,000/- (fifty thousand) is also directed to be paid by the respondents to the present petitioner."

9. Department Cannot Block GST ITC Without Assigning Any Reason: Gujarat High Court

Case Title: M/s New Nalbandh Traders Versus State of Gujarat

Citation: 2022 LiveLaw (Guj) 90

The Gujarat High Court bench of Justice J.B. Pardiwala and Justice Nisha M. Thakore has held that the department cannot block the Input Tax Credit (ITC) without assigning any reason to the assessee.

The writ petitioner/assessee, a proprietary concern, is in the business of trading in M.S. scrap for the past 13 years. The proprietary firm purchases the scraps from different suppliers and sells them to different entities.

10. Gujarat High Court Distinguished Between 'Public Order' And 'Law And Order'; Releases Detenue Under NDPS Act

Case Title: Manoj @ Munnabhai Ashwinbhai Somabhai Parmar Versus Director General Of Police

Citation: 2022 LiveLaw (Guj) 91

"Unless and until, the material is there to make out a case that the person has become a threat and menace to the Society so as to disturb the whole tempo of the society and that all social apparatus is in peril disturbing public order at the instance of such person, it cannot be said that the detenue is a person within the meaning of section 3(1) of the Act," the Gujarat High Court has upheld today.

Justice AP Thaker was hearing a petition against the detention of the Petitioner by the Respondent authorities under Section 3(2) of the Prevention of Illicit Trafficking in Narcotic Drugs and Psychotropic Substances Act 1988.

11. Employee Can't Be Terminated From Service Despite Conviction By Court In Absence Of Show Cause Notice & Opportunity To Reply: Gujarat High Court

Case Title: Ramsingbhai Saburbhai Patel vs State Of Gujarat

Case No.: 2022 LiveLaw (Guj) 92

The Gujarat High Court has recently quashed and set aside the order of termination of an employee, who was convicted for corruption, on the ground that he was neither given a show cause notice before such termination nor an opportunity to explain his case.

The Bench comprising Justice Biren Vaishnav directed the employer to reinstate the employee to his original post along with consequential benefits and backwages. However, liberty is granted to pass appropriate order afresh in accordance with law after giving an opportunity of hearing to the petitioner and considering the reply which may be filed.

12. Wife Of Accused Had No Knowledge Of Contraband, No Conscious Possession: Gujarat High Court Upholds Acquittal Under NDPS Act

Case Title: Union Of India Thro Amitkumar, Intelligence Officer Or His Successor In Office Versus State Of Gujarat

Citation: 2022 LiveLaw (Guj) 93

The Gujarat High Court has affirmed the acquittal of an accused under the Narcotic Drugs and Psychotropic Substances Act, 1985, on the ground that she was merely accompanying her husband and had no knowledge of contraband being carried in the bag.

The Bench comprising Justice SH Vora remarked that her conscious possession as understood under the law does not surface even a reasonable doubt.

The development ensued in a State-appeal, preferred against the order of Special Judge, acquitting the Accused No. 2 (wife of accused no. 1) for offences under Sections 8(c), 20(b) and 29 of the NDPS Act.