Even drug dealers have a right to transparency

Written by Indu Bhan | Indu Bhan | Updated: Jul 4 2012, 09:15am hrs
The essentiality of public notice

The Supreme Court has held that land acquisition proceedings will become illegal if the government fails to issue mandatory public notices to the affected persons. It further said that besides notifying the acquisition in the official gazette, the authorities are bound to notify the affected persons through at least two newspapers in the local region. In the case of Kulsum R Nadiadwala vs State of Maharashtra, the apex court declared as null and void the proceedings by the Maharashtra government for acquisition of land for establishing a military personnel ordinance. That the parties were aware of the acquisition proceedings or served with individual notices does not alter the position when the statute makes it very clear that all the procedures have to be strictly complied with, it said, while directing the government to hand over 50% of the vacant possession of the land to the appellants forthwith. In this case, Kulsum and the other legal heirs of one Ismail Nadiadwala had challenged a Bombay High Court order refusing to quash the land acquisition. The state government in 1975 had issued a notification to acquire certain pieces of land, including the land belonging to the late Ismail Nadiadwala and one Ibrahim Nadiadwala, for the defence unit. However, the authorities had failed to issue notices to them and had passed the award after hearing only Ibrahim in September 1986.

No need for part-timers in FEMA

Striking down a rule that enabled the government to appoint part-time members in the Appellate Tribunal for Foreign Exchange, the Supreme Court in the case of Union of India vs S Srinivasan held that even eligible candidates cannot be appointed as part-time members nor can the chairman be selected from among them. The Foreign Exchange Management Act, 1999, did not approve of part-time members and, therefore, Rule 5 of the Appellate Tribunal for Foreign Exchange (Recruitment, Salary and Allowances and Other Conditions of Service of Chairperson and Members) Rules, 2000, providing for such an appointment was illegal, it said.

We really perceive no justification for the introduction of the second proviso to bring in officers from the Indian Legal Service (ILS) who are qualified to become district judges to be part-time members...Therefore, once the introduction of part-time members is treated to be ultra vires the Act, the rest of the Rule is absolutely redundant. If the officer belonging to ILS is qualified to be a district judge, he can compete and be selected for the post of member and that qualification is to be in accord with the pronouncements of the law of this Court, the top court said. While the Delhi High Court in April 2004 had quashed the appointments of certain part-time members and the appointment of the acting chairperson of the tribunal, the Supreme Court clarified that the orders already passed by the tribunal consisting of disqualified members shall be valid. Srinivasan had contended that when a specific meaning has been given to the term member in the Act and the existence of a part-time member is conceptually absent under the scheme of the Act, the introduction by the rule is totally impermissible.

Being watched while being frisked

The Supreme Court in the case of Myla Venkateswarlu vs State of Andhra Pradesh has held that suspects in drug or narcotics smuggling cases have a right to be frisked for the contraband in the presence of a gazetted officer to ensure transparency in the investigation. A careful perusal of Section 50 of the Narcotics and Psychotropic Substances Act (NDPS) indicates that when any authorised officer is about to search any person under the Act, if such person (accused) requires (demands), he (officer) has to take him, without unnecessary delay, to the nearest gazetted officer of any of the departments or to the nearest magistrate, it said. The suspect can insist that his search be conducted before a gazetted officer or a magistrate so as to introduce transparency in the search, the apex court said while acquitting three persons convicted and sentenced to six months rigourous imprisonment by a sessions court in Andhra Pradesh for sale of ganja (cannabis). The Andhra Pradesh High Court had upheld their conviction, following which one of the convicts had appealed to the apex court, contending that Section 50 of the NDPS Act was not followed by the authorities and his conviction was illegal.

indu.bhan@expressindia.com