Jammu and Kashmir and Ladakh High Court Weekly Roundup December 18 - December 24, 2023

OWAIS SYED KHAN Vs UT OF J&K & ORS 2023 LiveLaw (JKL) 321

Bashir Ahmad Bhat Vs Union Territory of Jammu and Kashmir 2023 LiveLaw (JKL) 322

Aabid Rashid Vs Union Territory of Jammu And Kashmir 2023 LiveLaw (JKL) 323

Kumar Wanchoo Vs Drug Inspector Manufacturing, Kashmir Division 2023 LiveLaw (JKL) 324

Union Territory of J&K V/s Northern Transformers 2023 LiveLaw (JKL) 325

Judgements/Orders:

Unexplained Delay In Detention Order Execution Raises Doubt On Detaining Authority's Subjective Satisfaction: J&K High Court

Case Title: OWAIS SYED KHAN Vs UT OF J&K & ORS.

Citation: 2023 LiveLaw (JKL) 321

Upholding basic rights and safeguards against arbitrary detention, the Jammu and Kashmir and Ladakh High Court quashed a detention order of a detenue citing an unexplained delay in executing the order as casting doubt on the detaining authority's genuine concerns.

Allowing a Habeas Corpus petition Justice Sanjay Dhar observed,

“When there is an unsatisfactory and unexplained delay in executing the order of detention, such delay would throw considerable doubt on the genuineness of the subjective satisfaction recorded by the detaining authority. This would lead to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detinue”.

Necessary To Read S. 37 NDPS Act Subject To Fundamental Right To Life & Liberty Guaranteed U/Article 21: J&K High Court

Case Title: Bashir Ahmad Bhat Vs Union Territory of Jammu and Kashmir

Citation: 2023 LiveLaw (JKL) 322

In a delicate balancing act, the Jammu and Kashmir and Ladakh High Court upheld the stringent bail restrictions of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, but crucially acknowledged the fundamental right to a speedy trial enshrined in Article 21 of the Constitution.

Emphasising the necessity to interpret Section 37 of the NDPS Act in harmony with the fundamental right to life and liberty guaranteed under Article 21 of the Constitution, Justice Sanjeev Kumar referenced Mohammad Muslim @ Hussain v. State (NCT of Delhi), reported as 2023 and observed,

“..With a view to save the constitutionality of Section 37 of the NDPS Act, it is necessary to read Section 37 of the NDPS Act subject to the fundamental right of life and liberty guaranteed under Article 21 of the Constitution of India”.

'No Vested Right To Continue': J&K High Court Denies Relief To Contractual Doctor Seeking Service Extension Post COVID Hospitals Closure

Case Title: Aabid Rashid Vs Union Territory of Jammu And Kashmir

Citation: 2023 LiveLaw (JKL) 323

The Jammu and Kashmir and Ladakh High Court ruled against a petition filed by 116 doctors and medical staff who sought to continue their services at temporary Covid hospitals even after they were closed down.

Dismissing their plea for seeking an extension of their services Justice MA Chowdhary observed,

“The contractual employment has no vested right to continue and it is not open for the Courts to direct an employer to continue the contract or to change the status of the contractual employment in any manner, once the same has been accepted by consent of both the sides without any demur”.

Can't Convict Drug Manufacturer Twice For Same Violation Even If Substandard Drug Samples Lifted From Different Places: J&K High Court

Case Title: Kumar Wanchoo Vs Drug Inspector Manufacturing, Kashmir Division,

Citation: 2023 LiveLaw (JKL) 324

Delivering a sigh of relief for a pharmaceutical company caught in the double-bind of double jeopardy, the Jammu and Kashmir and Ladakh High Court said that the mandate of Section 300 of CrPC read with Article 20 (2) of the Constitution of India clearly instructs that person once convicted or acquitted for the commission of offence cannot be tried subsequently for the same offence.

Payment of Compound Interest Under MSMED Act Supersedes All Agreements And Laws: J&K High Court

Case Title: Union Territory of J&K V/s Northern Transformers

Citation: 2023 LiveLaw (JKL) 325

Underscoring the statutory nature of compound interest under Section 16 of the MSMED Act, the Jammu and Kashmir and Ladakh High Court ruled that the payment of compound interest under this section is mandatory and the same supersedes any conflicting terms in contracts or existing laws.

A bench of Justice Sanjeev Kumar observed,

“This condition of payment of compound interest on failure of the buyer to make the payment on the date it becomes due, is statutory in character and overrides any stipulation in the agreement made between the buyer and the supplier. It also overrides any such stipulation with regard to interest made in any law for the time being in force”.