SUPREME COURT REITERATED THAT HIGH COURT IS NOT OBLIGED TO FORMULATE SUBSTANTIAL QUESTIONS OF LAW IN CERTAIN CIRCUMSTANCES

A Three Judge Bench of the Hon’ble #SupremeCourt of India comprising of Justices L. Nageswara Rao, Hemant Gupta and Ajay Rastogi passed a Judgment dated 16.11.2020 in the case of Kirpa Ram v. Surendra Deo Gaur (Civil Appeal No. 8971 of 2010) and held that if there’s no #error in the findings of the First Appellate #Court, then the #HighCourt is not obliged to frame #substantialquestionsoflaw.

In the present case, Respondent No. 1 and 2 herein (Plaintiffs) had filed a Suit for Permanent Injunction on 31.07.1971 in the Trial Court, as they were apprehending a threat to their possession of land bearing Khasra No. 238 measuring 4 Bighas 3 Biswas (Property), situated in the revenue estate of Village Basai Darapur, Delhi. By a Decree dated 07.10.1960, the Trial Court held that the Plaintiffs are the owners and Bhumidars of the said Property.

Aggrieved, the Defendants filed an Application under Section 161 B of the Delhi Land Reforms Act, 1954 before Sub-Judge, First Class, Delhi for setting aside the said Decree. However, the same was dismissed on 24.5.1968.

The Trial Court held that the Property was in the possession of the Plaintiffs. Further, it was held that the Defendants being the third parties don’t have a right to challenge the Decree passed in favour of the Plaintiffs.

Aggrieved, the Defendant No. 4 (Appellant herein) filed a First Appeal, which was dismissed by the First Appellate Court. Thereafter, a Second Appeal was filed in the Delhi High Court and the High Court vide Judgment dated 25.8.2008 dismissed the same.

Aggrieved, the Defendant No. 4 (Appellant herein) filed an Appeal in the Hon’ble Supreme Court of India.

The First argument raised by the Appellant was that the High Court had dismissed the Appeal without formulating any substantial question of law which is a requirement as per Section 100 of the Civil Procedure Code, 1908 (Code) and that the matter should be remitted back for determining the substantial questions of law framed by the Appellant.

Placing reliance on Sub-Section (1) of Section 100 of the Code, the Apex Court held that an Appeal shall lie if there’s a substantial question of law involved and the Appeal shall be heard on the questions so framed. If the substantial questions of law that have been framed by the Appellant are found to be arising in the case, only then the High Court shall take the same into consideration. However, if there’s no error in the findings of the First Appellate Court, then the High Court is not obliged to frame any substantial questions of law.

In this case, the Supreme Court upheld the Judgment of the Delhi High Court as there was no error in the findings of the said Court and thus, disposed the Appeals.

Suchitra Upadhyay

Associate

The Indian Lawyer & Allied Services

DELHI HIGH COURT REFUSES TO GRANT INJUNCTION TO A GLOBAL PHARMA COMPANY FOR NON-COMPLIANCE OF INDIAN PATENT LAW

The #DelhiHighCourt has in a matter of Astrazeneca AB and Anr vs Torrent Pharmaceuticals Ltd and other tagged matters passed a Judgment dated 18-11-2020 and refused to grant interim #injunction in favor of the Plaintiff, a global #pharma Company, on the ground that it failed to disclose information to the Indian #Patent Office about its patent applications for same or similar inventions in other countries.

In this case, the Plaintiff claimed to be the owner of a pharmaceutical composition namely ‘Dapagliflozin’ (Product), which helps in controlling diabetes and diabetes complications.  The Plaintiff’s authorised distributors in India include Sun Pharma Laboratories Limited and Abbott Healthcare Private Limited, who make drugs comprising of Dapagliflozin. The Plaintiff has applied for patent of the said Product in a Patent Suit in India and other countries such as the United States of America (USA), etc.

But the Defendants had challenged the Patent Suit on the ground that the Plaintiff has failed to disclose about its patent applications in other countries. Thus, they challenged the validity of the Patent Suit.

However, the Plaintiff filed a suit before the Delhi High Court and sought for permanent injunction restraining the Defendants from manufacturing and selling products that comprised of ‘Dapagliflozin’.

The Delhi High Court made the following observations in this case:

1- That as per Section 8 (2) of the Patent Act 1970 (the Act), the applicant must submit the particulars of all the applications for patent of same or substantially the same invention filed in other countries. But the Plaintiff failed to disclose the details about its patent applications, if any, in any of the patent offices across the world such as United States Patent and Trademark Office (USPTO), European Patent Office (EPO), Japan Patent Office (JPO), etc.

Section 8 of the Act has been reproduced below:

Information and undertaking regarding foreign applications

(1) Where an applicant for a patent under this Act is prosecuting either alone or jointly with any other person an application for a patent in any country outside India in respect of the same or substantially the same invention, or where to his knowledge such an application is being prosecuted by some person through whom he claims or by some person deriving title from him, he shall file along with his application or subsequently within the prescribed period as the Controller may allow—

 (a) a statement setting out detailed particulars of such application; and

 (b) an undertaking that, up to the date of grant of patent in India, he would keep the Controller informed in writing, from time to time, of detailed particulars as required under clause (a) in respect of every other application relating to the same or substantially the same invention, if any, filed in any country outside India subsequently to the filing of the statement referred to in the aforesaid clause, within the prescribed time.

(2) At any time after an application for patent is filed in India and till the grant of a patent or refusal to grant of a patent made thereon, the Controller may also require the applicant to furnish details, as may be prescribed, relating to the processing of the application in a country outside India, and in that event the applicant shall furnish to the Controller information available to him within such period as may be prescribed.

2- Despite repeated requests made by the Indian Patent Office for submission of mandatory documents, the Plaintiff failed to comply with the said requirements, hence, the High Court held that the validity of the Patent Suit is vulnerable for non-compliance of Section 8 (2) of the Act. But the Court refused to delve further into the issue of invalidity of Patent Suit, as this was a Suit for Interim Injunction only.

3- That the prima facie vulnerability of the validity of Suit Patent has outweighed the balance of convenience and irreparable loss caused to the Plaintiff.

Thus, based on the aforesaid grounds, the Delhi High Court has held that the Defendants have prima facie laid a credible challenge to the validity of the Patent Suit on the ground of non-compliance of Section 8(2) of the Patent Act. Therefore, the Delhi High Court refused to grant interim injunction in favor of the Plaintiff and therefore, dismissed the Suit.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

BEGINNING OF VIRTUAL COURTS ON WHEELS IN INDIA

In view of the #COVID-19 Pandemic, the Indian Judicial System has changed its way to hear cases through #VideoConferencing. During this time, the Courts have experienced a spike in the number of cases. Subsequently, the system has become more robust, #artificialintelligence has become more proficient, and #justice has become more accessible to the poorest and those living in remote areas.

In this regard, recently, the Principal District Judge of Adilabad, MG Priyadarshini, on Friday launched Virtual Court Connecting Mobile Van [#Mobile Van(s)]. The High Court of Telangana initially inaugurated a “Mobile Video Conference Facility” in order to help the lawyers and litigants, who have been facing trouble in participating in Virtual Court hearings due to the non-availability of computer system or internet, to attend court hearings through this Mobile Van.

The idea is in itself an innovative effort of creative minds in technology sector to curb the problems of litigants and lawyers with respect to the technology. It is in addition to the virtual control room, established in courts complex, which is being used by advocates and the general public for attending Virtual Court hearings. This has made the accessibility easier for the lawyers and litigants to access the legal help from any area.

The idea of mobile van is to go to the remote places in the State, so that advocates residing in that vicinity can make use of the Mobile Video Conference Facility and address the Virtual Court.

Such an effort is commendable amidst the crisis; more such initiatives should be taken by various other courts so that the essence of justice does not dissolve amidst the Pandemic. The Supreme Court should also formulate guidelines for encouraging and regulating such Mobile Vans. Moreover, such an initiative would also act as a stepping stone towards the digital world, where virtual courts would be omnipresent, thereby reducing the crowd from the court premises.

Time has demanded a creative platform for ‘Access to Justice’ and this has been made possible through the implementation of virtual courts. Now, access to justice at the doorstep is the need of the present hour, where justice is being delayed and only urgent matters are being taken up by courts. These Mobile Vans would not only help in ensuring timely justice and accessibility but would also help in increasing the number of cases that could be dealt within a day without diluting the essence of the term “justice”. Therefore, such efforts taken by the Principal District Judge of Adilabad, should be adopted by other courts as soon as possible.

These efforts would bring other benefits such as enhancement of efficiencies in proceedings, less stress on physical infrastructure, lesser crowd in court rooms, lesser waiting time in court corridors, more productive use of time and money, lesser cars on the road, and improved work-life balance. And then, there is the hope for a healthier environment, perhaps the only silver lining in this time of Pandemic.

Lakshmi Vishwakarma

Associate

The Indian Lawyer

ARNAB GOSWAMI ARRESTED

#ArnabGoswami was recently arrested on 04-11-2020 at 7.45 AM in connection with FIR CR. No. 0059 of 2018 dated 05-05-2018 which was registered at #Alibaug Police Station, Raigarh under Sections 306 and 34 of the Indian Penal Code 1860 (#IPC). Section 306 IPC deals with #Abetment of #Suicide and the #punishment for the said Offence is 10 (ten) years and fine. Section 34 IPC deals with acts done by several persons in furtherance of common intention.

Arnab Goswami was a named Accused in the FIR CR. No. 0059 of 2018. As per the said FIR which was lodged by the daughter of the Deceased Anvay Naik, an Interior Designer and his mother Late Kumud Naik, they had committed suicide. It is alleged that the suicide was prompted due to non-payment of dues of Rs 5.40 Crore by Arnab Goswami and two others.

The investigation into the said FIR CR. No. 0059 of 2018 was closed and the Summary Report submitted by the Police was accepted by the Chief Judicial Magistrate, Alibaug on 16-04-2019. It is therefore most unusual that in a case that has been closed and there is no judicial order directing reopening of the matter/re-investigation of the matter or directing further investigation of the matter, how Arnab Goswami got arrested.

The mode and method used by the Police in the arrest of Arnab also seems to be a violation of his legal rights. It appears that he has been manhandled and physically assaulted by Police Officials and was physically dragged and taken into custody. These events are borne out in a Video Footage that was taken at the time of his arrest and can be viewed on https://youtu.be/69MrVE_6hKc

Arnab Goswami has challenged the aforesaid arrest in a Writ Petition before the Bombay High Court and sought Bail in the said FIR CR. No. 0059 of 2018. In this Writ Petition he has alleged illegal detention and wrongful custody by the Mumbai Police and has sought a stay in the proceedings including the investigation in FIR CR. No. 0059 of 2018.

Arnab’s Bail Application is currently before the Bombay High Court and pending the disposal of his Bail Application, he will be in judicial custody. He is lucky that he was remanded to judicial custody and not police custody, taking into consideration the way he was manhandled by the Mumbai Police during his arrest.

It seems the media giants who always consider themselves above the law are not really above the law. Arnab’s case being an example.

Sushila Ram Varma

Chief Consultant

The Indian Lawyer & Allied Services

SUPREME COURT HOLDS THAT HOMEBUYERS HAVE ALTERNATE REMEDIES UNDER LAW AGAINST BUILDERS

In a recent case of M/s Imperia Structures Ltd vs Anil Patni and Another Civil Appeal No. 3581-3590 of 2020, the 2-Judge Bench of the #SupremeCourt passed a Judgment dated 02-11-2020, whereby the Apex Court held that the #consumer has the #discretion to choose either the Consumer Forum or the Real Estate Regulatory Authority to initiate proceedings against the #builder or promoter for delay in handing over the possession of the booked #flat or apartment.

In this case, the Appellant-Builder and the Respondent-Buyers had executed a Builder Buyer Agreement dated 30-11-2013 (the Agreement) with respect to various flats in “The ESFERA” Project in Sector 13C, Gurgaon, Haryana (Building). The Respondent in this case had booked a Flat in the Building for an aggregate price of Rs. 76,43,000/- and over the period of time, the Respondent-Buyer had paid Rs. 63,53,625/-. But the Appellant-Builder could not complete construction of the Building within the agreed period of 42 months. Thus, the Respondent-Buyer filed a case under the Consumer Protection Act 1986 (the CP Act) on 11-10-2017 before the National Consumer Disputes Redressal Commission, New Delhi.

Later, the Real Estate (Regulation and Development) Act, 2016 (the #RERA Act) was introduced on 01-05-2016 and the Project was registered with Haryana Real Estate Regulatory Authority, Panchkula (HRERA) on 17-11-2017.

Thereafter, the Appellant-Builder challenged the jurisdiction of the Consumer Forum on one of the grounds that there was a delay in completion of the Project due to occurrence of Force Majeure events such as Demonetisation and thus, the Builder cannot be held liable for the same under Clause 41 of the Agreement.

The National Commission passed an Order dated 12-09-2018 and held that demonetization, non-availability of contractual labour, and delay in notifying approvals cannot be construed to be Force Majeure Events. Moreover, the Builder had admitted that there was a delay on their part in completing the Project. Thus, the Builder was held liable for deficiency in services rendered to the Buyer and was directed to refund the entire money to the Buyer.  

Aggrieved by the National Commission’s Order dated 12-09-2018, the Appellant-Builder filed an Appeal before the Supreme Court. The Apex Court herein made the following observations:

1- That Section 100 of the CP Act 2019 (and Section 3 of the erstwhile CP Act 1986) provide that the CP Act is not in derogation of any other law. This Section is reproduced below:

The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.

This Section was again introduced in 2019 after the RERA Act was enacted, with the intent to secure the remedies under 2019 Act and to protect the interests of the consumers.

2- Further, Section 88 of the RERA Act provides that application of other laws is not barred. This Section is reproduced below:

The provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force.

3- Thus, the remedies available under the CP Act are additional remedies over and above the remedies available under special statutes like the RERA Act. Thus, the courts are not barred from entertaining a complaint under the CP Act on the ground that an alternate remedy under a special statute is available.

4- Further, as per Section 18 of the RERA Act, if the builder (or promoter) fails to complete or is unable to give possession of an apartment, plot or building to the buyer (or allottee) within the timelines agreed by the parties, then the entire amount received from the buyer has to be returned to him in addition to compensation.

5- Therefore, the buyer or allottee has the discretion to initiate proceedings against the builder or promoter either under the CP Act or the RERA Act.

Thus, the Apex Court upheld that the validity of the proceedings initiated herein under the CP Act and also upheld the Order of the National Commission. The Supreme Court further directed the Appellant-Buyer to pay a sum of Rs. 50,000/- to each aggrieved Buyer in the said case, over and above the amounts payable to the Buyer(s).

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

SUPREME COURT HOLDS STATUTORY TIME LIMIT STIPULATED UNDER SARFAESI ACT TO BE DIRECTORY IN NATURE

Recently, a Three-Judge Bench of the Hon’ble #SupremeCourt of India in the case of C. Bright v. District Collector, Civil Appeal No. 3441 OF 2020, passed a Judgment dated 05.11.2020 and upheld an Order dated 19.7.2019 passed by the Division Bench of the #Kerala High Court, wherein it was held that Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (‘#SARFAESI Act’), which mandates the District #Magistrate to pass suitable orders for taking #possession of a #securedasset within 30 days, is not a mandatory provision.

The issue before the Supreme Court was whether the remedy under Section 14 of SARFAESI Act becomes redundant if District Magistrate is unable to pass suitable orders for taking possession of secured assets within the stipulated time limit?

The contentions raised that the Proviso to Section 14 of the SARFAESI Act mandates the District Magistrate to record reasons, if the order is not passed within 30 days and an extended period of a total 60 days has to be availed. This shows that the provision is mandatory. It was also contended that the Proviso mandates the District Magistrate to pass an order within 30 days as the word “shall” is used in first part of the Proviso to the Section 14 of the Act. Thus, the time limit provided is unambiguous and the provision is mandatory.

The Supreme Court observed that it is a well settled rule of interpretation of the statutes that the use of the word “shall” in a statute, does not necessarily mean that in every case it is mandatory that unless the words of the statute are literally followed, the proceeding or the outcome of the proceeding would be invalid. It is not always correct to say that if the word “may” has been used, the statute is only permissive or directory, in the sense that non-compliance with those provisions will not render the proceeding invalid. However, when a statute uses the word “shall”, prima facie, it is mandatory, but the Court may ascertain the real intention of the Legislature by carefully attending to the whole scope of the statute.

In view of the above observations, the Supreme Court noticed that the time limit stipulated under the SARFAESI Act is to instill a confidence in creditors that the District Magistrate would make an attempt to deliver possession as well as to impose a duty on the District Magistrate to make an earnest effort to comply with the mandate of the Statute to pass orders for taking possession of the secured assets within 30 days and for reasons to be recorded within 60 days. Hence, the remedy under Section 14 of the Act is not rendered redundant if the District Magistrate is unable to handover the possession. The District Magistrate will still be enjoined upon, the duty to facilitate delivery of possession at the earliest.

The Supreme Court also looked into the object and reason of the SARFAESI Act and observed that the object and purpose of the said time limit is to ensure that such applications are decided expeditiously so as to enable secured creditors to take physical possession quickly and realize their dues. Moreover, as stated earlier, the consequences of non-compliance with the time limit are not specified and the conclusion thereof would be that the district collector/district magistrate concerned would not be divested of jurisdiction upon expiry of the time limit. In this connection, it is also pertinent to bear in mind that if the “consequences of non-compliance” test is applied, the borrower, guarantor or lessee, as the case may be, are not adversely affected or prejudiced, in any manner, whether such applications are decided in 60, 70 or 80 days. On the other hand, the secured creditor is adversely affected if the provision is construed as mandatory and not directory in as much as it would delay the process of taking physical possession of assets instead of expediting such process by entailing the filing of another application for such purpose. For all these reasons, the time limit stipulation in the amended Section 14 of the SARFAESI Act is directory and not mandatory.

Therefore, the Supreme Court did not find any error in the Order passed by the High
Court. Consequently, the Order dated 19.7.2019 was upheld and the Appeal was dismissed.

Lakshmi Vishwakarma

Associate

The Indian Lawyer

SUPREME COURT ISSUES GUIDELINES ON PAYMENT OF MAINTENANCE IN MATRIMONIAL DISPUTES

The Two Judge Bench of the Hon’ble #SupremeCourt of India comprising of Justices Indu Malhotra and R. Subhash Reddy passed a Judgment dated 04.11.2020 in the case of Rajnesh v. Neha & Anr. (Criminal Appeal No. 730 of 2020) and has issued #Guidelines on payment of #maintenance in #matrimonial cases.

In the present case, the Respondent-Wife and the minor Son had filed an Application for Interim Maintenance under Section 125 of the Code of Criminal Procedure 1973 (Cr.P.C.) In January, 2013 shortly after the birth of the minor Son (Respondent No. 2), the Respondent No.1 (Wife) had left the Matrimonial House. On 02.09.2013, an Application was filed by the Respondent No. 1 under Section 125 Cr.P.C. seeking Interim Maintenance on behalf of herself and her minor Son. Vide Order dated 24.08.2015, the Family Court awarded an Interim Maintenance of Rs. 15,000/- per month to the Respondent No. 1 from 01.09.2013 and an interim maintenance of Rs.5,000/- per month to the Respondent No. 2 from 01.09.2013 to 31.08.2015 and an amount of Rs. 10,000 per month from 01.09.2015 till further orders were passed.

The Appellant-Husband challenged the said Order before the Hon’ble Bombay High Court- Nagpur Bench vide Criminal Writ Petition No.875/2015. The Writ Petition was subsequently dismissed vide Order dated 14.08.2018 and the Bombay High Court upheld the Order passed by the Family Court.

An Appeal was filed in the Apex Court challenging the High Court Order dated 14.08.2018. A notice was issued to the Respondent No. 1 and the Appellant was directed to file his Income Tax Returns and Assessment Orders for the period from 2005-2006 till date and to place a photocopy of his passport on record. Further, the Appellant was directed vide Order 11.09.2019 to make payment of the arrears of Rs.2,00,000 towards interim maintenance to the Wife and an amount of Rs.3,00,000 towards arrears of maintenance, which was due and payable to the Wife. However, by an Order dated 14.10.2019, it was recorded that only a part of the arrears had been paid by the Appellant and therefore, a final opportunity was given to him to make payment of the balance amount by 30.11.2019. The Apex Court further ordered that if the Appellant fails to make the said payment, he shall be liable for contempt of court.

Further, the Supreme Court also laid down certain Guidelines with respect to payment of maintenance in matrimonial matters, which are given below:

1- On the issue of Overlapping Jurisdiction, the Bench held the following:

i) When maintenance is claimed under different statutes, courts will take into consideration an adjustment or set off, of the amount which has been awarded in any previous proceeding(s), while determining whether or not any amount further is to be awarded in the subsequent proceeding.

ii) It is mandatory for the applicant to disclose the previous proceeding and the orders that were passed therein, in the subsequent proceeding.

iii) If an order has been passed in the previous proceeding(s) and it requires any modification or variation, it shall be done in the same proceeding.

2- On the issue of payment of interim maintenance, the Bench held that it is mandatory for the parties to file affidavit of disclosure of assets and liabilities in all maintenance proceedings, including the pending proceedings before the concerned Family Court/District Court/Magistrate Court, as the case may be, throughout the country.

3- On the criteria for determining the amount/quantum of maintenance, the Apex Court held that factors such as status of the parties, reasonable needs of the wife and dependent children; whether the applicant is educated and professionally qualified; etc. shall be taken into consideration.

4- Furthermore, the Bench held that maintenance in all cases will be awarded from the date on which the application for maintenance is filed.

5- On the issue of enforcement of orders of maintenance, the Court held that an order or decree of maintenance may be enforced like a decree of a civil court.

Suchitra Upadhyay

Associate

The Indian Lawyer & Allied Services

THE VACCINE RACE: SUCCESS OF SPUTNIK-V

“Sputnik V” is an adenovirus vector-based Vaccine that is currently the first registered COVID-19 Vaccine across the globe. It has been developed by Gamaleya National Center of Epidemiology and Microbiology, Moscow, Russia, for prevention of Coronavirus infection caused by Severe Acute Respiratory Syndrome Coronavirus 2 (SARSCoV- 2).

Sputnik V has been registered as a COVID-19 Vaccine by the Russian Ministry of Health on 11-08-2020. Russian Direct Investment Fund (RDIF), which is Russia’s Sovereign Wealth Fund, has submitted applications for accelerated registration (Emergency Use Listing) and prequalification of Sputnik V, to the World Health Organisation (WHO) and is awaiting approval of the same.

The Prequalification of Medicines Programme (PQP) is a leading United Nations Programme that is managed by WHO. PQP is the only Global Medicines Quality Assurance Programme which assesses, inspects and evaluates the medicinal product and its active pharmaceutical ingredient(s), etc and thereafter, verifies whether they are compliant with WHO standards, WHO Good Clinical Practices and WHO Good Laboratory Practices.

The Prequalification Team may also provide listing of the medicinal product on an emergency basis (Emergency Use Listing), in a situation where a public health emergency (PHE) has occurred and there is limited available data about the efficacy and safety of the products and lack or paucity of diagnosis, treatment, detection and/or prevention options.

Thus, the prequalification of Sputnik V would allow the Vaccine to be included in the Pre-Qualified List of Medicinal Products that meet leading quality, safety and efficacy standards of WHO. Further, the accelerated registration of Sputnik V would make this Vaccine easily accessible to all countries within a short period of time and with less procedural hassles.

Various other countries are also in the process of developing COVID-19 vaccines such as Germany, U.S.A., India, etc. However, these vaccines are still in their initial phases of Clinical Trials.

In comparison, “Sputnik V” has beaten the others as it is presently the only registered COVID-19 Vaccine in the world that is said to be safe and effective and is currently undergoing Phase 3 Clinical Trials, where the efficacy of the Vaccine is tested on a large-scale basis. Russia has already successfully completed Phases 1 and 2 of the Clinical Trials. The Clinical Trials have shown the Vaccine as effective and safe.

This Vaccine is based on adenovirus vector which induces a genetic material into the body’s cell(s) to provoke an immune response. These vectors will act as a Trojan Horse and will send instructions to the cells in the human body to produce the spike protein of SARSCoV-2, the Virus responsible for causing COVID-19. This inserted genetic element is safe for the body and helps the immune system to react and produce antibodies, which protects the body from infection. Also, the use of these human adenoviruses as vectors is safe because these viruses, which cause common cold, are not novel and have been in existence for a number of years.

One, Mr. Alexander Chepurnov, Professor of Virology and an Employee of the Novosibirsk Federal Research Centre of Basic and Translational Medicine, Russia, had contracted Coronavirus twice for the sake of an experiment that was carried out to find out, for how long the Covid Antibodies would protect him from repeat contraction of the Disease. He concluded that one-time administration of the Vaccine may not be sufficient to maintain the immunity and thus, recommended that periodic vaccination of Sputnik V would achieve efficient results.

Additionally, Russia has also registered a second COVID-19 Vaccine, namely, EpiVacCorona in October, 2020. The said Vaccine has been developed by Vektor State Research Centre of Virology and Biotechnology in Russia.

EpiVacCorona Vaccine is an antigens-based Vaccine that provokes an immune reaction against COVID-19 and helps in further development of immunity. This is currently undergoing Phase 3 Clinical Trials.

Further, Russia has registered a third COVID-19 Vaccine and is in the process of working on the next generation vaccines. These Vaccines will be announced shortly.

These Russian Vaccines would be first made available to Russian citizens on a priority basis. Thereafter, the Vaccine would be made available for widespread use on commercial basis in foreign markets by 01-01-2021, which will commensurate with the conclusion of Phase 3 Clinical Trials.

The Russian Government has already executed preliminary agreements for testing Sputnik V with more than 20 countries inter alia Brazil, Mexico, India, Venezuela, Saudi Arabia, Uzbekistan, Nepal.

In India, Dr. Reddy’s Laboratories and RDIF have already entered into an Agreement around 16-09-2020, whereby, RDIF has agreed to supply 100 Million doses of the Sputnik V Vaccine to Dr. Reddy’s for conducting Clinical Trials of the Vaccine and for its distribution in India. The Drug Controller General of India (DCGI) has granted approval to Dr Reddy`s to conduct Phases 2 and 3 Clinical Human Trials of Sputnik V around 17-10-2020.

Russians are looking at a long-term cooperation with the joint venture partners in different parts of the world. Our Client who is a Russian, can facilitate necessary support from the Russian Government and other official Russian organizations in order to promote setting up and commencement of business for the joint venture.

Interested parties may reach us at contact@theindianlawyer.in to enable us to connect them to the Russian Client.

Sushila Ram Varma

Chief Consultant

The Indian Lawyer & Allied Services

Advisor to Russian Business Entrepreneurs and Companies

SUPREME COURT HOLDS THAT THE ACCUSED’S RIGHT TO BAIL IS SUPERIOR OVER THE STATE’S RIGHT TO INVESTIGATION

The Supreme Court has in a recent case of M Ravindran vs The Intelligence Officer, Directorate of Revenue Intelligence passed a Judgment dated 26-10-2020, where the Apex Court reiterated that the right of an #accused to be granted #bail is a statutory right and that such a right precedes over the #right of an #investigation agency to complete the investigation and submit a #chargesheet.

In this case, the Appellant-Accused was arrested and remanded to judicial custody for certain offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (the NDPS Act) on 04-08-2018. Upon completion of 180 days of remand in judicial custody i.e. on 31-01-2019, the Appellant-Accused filed an Application for Bail under Section 167 (2) Code of Criminal Procedure 1973 (#CrPC) before the Special Court of Chennai that was constituted to try cases under the #NDPS Act. The ground for applying for bail was that the investigation agency had not completed the investigation within the statutory period of 180 days and that they had not filed a charge sheet till then. Thus, the Trial Court granted Bail on 05-02-2019.

Aggrieved, the Respondent-Investigation Agency filed a Petition in the Hon’ble High Court of Madras seeking cancellation of the said Bail, which was allowed by the High Court.

Aggrieved, the Appellant-Accused filed an Appeal before the Supreme Court. The Apex Court made the following observations in this case:

1- That Section 36A (4) of the NDPS Act read with Section 43D (2) (b) of the Unlawful Activities (Prevention) Act, 1967 (the UAP Act) and Section 167 (2) CrPC provides that in case of offences punishable under the said laws, in the event that the investigation is not completed within 90 days, the court may, if it is satisfied with the progress of the investigation, further extend the period up to 180 days.

2- Further, the prosecution may make an application for extension of time beyond the 180 days period, for filing the final report of investigation before the Special Court under the NDPS Act and the Court may allow extension of time up to one year, if so required.

3- But in this case, the Public Prosecutor had not filed any such application for extension beyond the 180 days period.

4- In fact, the Public Prosecutor waited for completion of the said 180 days period and then filed an Additional Complaint against the Appellant-Accused on the same day when the Application for Bail was filed by the Accused. The intention of the State/the Investigation Agency behind such delayed action was to ensure that the Accused remains in custody for an extended period of time.

5- But the Apex Court herein reiterated and held that such a practice cannot be allowed as it would defeat the statutory right of the Accused to be released on bail under Section 167 (2) CrPC.

6- That by filing an Application under Section 167 (2) CrPC read with Section 36A (4) of the NDPS Act upon expiry of the stipulated time limit of 180 days, the Accused is deemed to have exercised his right to be released on default bail. Therefore, the Court should release him on bail without unnecessary delay.

7- This would ensure that the Prosecution does not frustrate the legislative mandate of release of the Accused on bail under Section 167 (2) CrPC, in case of a default by the Investigation Agency.

Thus, the Supreme Court held that a statute should be interpreted in a manner that leans towards protecting the statutory rights of the Accused and thus, directed the release of the Accused on Bail, provided that he complies with the terms and conditions of the said Bail. The Apex Court further set aside the High Court Judgment and upheld the Trial Court Judgment.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

SUPREME COURT HELD STATE GOVERNMENT LIABLE TO REFUND SECURITY DEPOSIT FOR DISRUPTION OF MINING OPERATIONS

The Hon’ble Supreme Court of India passed a Judgment dated 28.10.2020 in the case of Dharmendra Kumar Singh v. The State of Uttar Pradesh & Ors. (Civil Appeal No. 12202 of 2018) and held that the Appellants are entitled to the refund of #SecurityDeposit and the Advance #Royalties for the period during which the #mining operations were not carried on in the #Lease Area.

In the present case, Mining Leases were granted to various Projects in the District of Sonbhadra. An Application was filed by the All India Kaimur People’s Front (AIKPF) before the National Green Tribunal, New Delhi (NGT) whereby they sought directions for prohibition of alleged illegal mining in the ecologically sensitive area surrounding the Kaimur Wildlife Sanctuary located in Village Billi Markundi in Sonbhadra District. As it is important to preserve the wildlife, directions were issued by the NGT in this respect.

Thirty-three leases were operational outside the Eco-Sensitive Zone (ESZ) and the State of Uttar Pradesh (UP) was called upon by the NGT to explain the position of the Leases in view of the Order dated 04.05.2016 that was passed by the NGT directing the State of UP to cancel all Mining Leases and all other non-forestry activities in the areas that were notified under Section 4 of the Indian Forest Act, 1927 (Forest Act). The Notification specified as to what are the limits of reserved forest area.

However, the State of UP made an admission that some Leases were still active in the area covered under Section 4 of the Forest Act. Thereafter, the NGT vide Order dated 13.7.2018 directed the State of UP to prohibit all the Leases under Section 4 of the Forest Act. Subsequently, a Review was filed by the State of UP which was dismissed vide Order dated 29.8.2018.

Aggrieved by the said Order, the Appellants filed Appeals in the Apex Court under Section 22 of the National Green Tribunal Act, 2010 (NGT Act). The main question involved in the present Appeals was whether to refund the Lease Amount for the period of disruption of mining operations or whether to allow renewal of Leases for the said period of obstructed time.

The State of UP contended that according to the Uttar Pradesh Mining Minerals (Concession) Rules, 1963 (Mining Rules) there was no provision for grant of permission for mining in case of disruption of mining operations and that it was willing to refund the lease amount, i.e. for the period during which the Leases have not been permitted to operate. The Appellants raised an objection to the same. The main contention of the Appellant was that there was no illegal mining going on.

The Supreme Court held “that a mere filing of an application either for the grant of a lease or for the renewal of a lease does not confer a vested right for either grant or renewal of a lease. The statutory provision of Rule 68 of the Mining Rules, which has been strongly relied upon by learned counsel for the appellants, is in the nature of a relaxation rule in special cases and has to be read with the Rules which provide the manner in which the exploitation of minerals should take place.”

The Apex Court disposed of the Appeals with the following Orders:

  1. The Security Deposit should be refunded and the amount (i.e. the Advance Royalties) which has been deposited by the Appellants/Leaseholders to the Respondent/State should also be returned to them in addition to interest @ 9% per annum.
  2. Furthermore, the Advance Royalties for the obstructed period will carry interest @ 9% per annum from the date on which the obstruction occurred i.e. 29.8.2018 and 5.2.2019, till the date of payment.
  3. The Supreme Court directed that both these amounts should be refunded within two months from the date of Judgment.

Suchitra Upadhyay

Associate

The Indian Lawyer & Allied Services