NDPS (Amendment) Act, 2001 - Some Reflections

(By T.D. Robin & K.S. Sabitha, Advocates, Ernakulam)

The Narcotic Drugs and Psychotropic Substances Act was enacted in 1985. The need felt was the inefficacy of effectively controlling the drug abuse. On its enactment it replaced three previous Acts viz. (3) The Opium Act, 1957 (Act No. 13 of 1957), The Opium Act, 1878 (Act No. 1 of 1878) and Dangerous Drugs Act, 1930 (Act No. 2 of 1930) vide repeal through S. 82 of the NDPS Act, 1985.

Stringent punishments like minimum sentence of0 years R J. and fine of Rs.'one lakh which could extend upto sentence of R. 1 for 20 years and fine of Rs. 2 lakhs as well as minimum sentence of 15 years; fine of Rs. 1.5 lakhs which could extend upto 30 years R.I. and 3 lakhs for previous offenders were some of the salient features.

The Act was amended in 1998 (Act 2 of 1999) which implemented harsher punishments like death penalties for certain offences, stringent bail conditions and ban on suspension, remission and commutation of sentences.

The recent Amendment Act, NDPS Amendment Act, 2001 (9 of 2001) came into force on 2.10.2001. In the statement of Objects and Reasons of the Act it has been mentioned that while the Act envisages severe punishment for drug traffickers, it envisages reformative approach towards addicts. It continues to say that therefore it is proposed to rationalise the sentence structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentences, the addicts and those who commit less serious offences are sentenced to less severe punishments.

In fact, the Act has unbelievingly been lenient in the matter of punishments and stringency of bail conditions. The Amended Act (has to be read along with the Principal Act, 1988) gives great relief to the addicts most of whom are youngsters who have knowingly or unknowingly fell in the trap of real traffickers in narcotic and psychotropic substances.

The salient features of the Amended Act can, in a nut shell, be put as follows:

1. Quantities- The amended act has classified the quantum of the drugs into three quantities namely small quantity, commercial quantity and the intermediate quantity. The schedule attached to the Act prescribes the limits. Intermediate quantity is that which exceeds the small quantity and is lesser than the commercial quantity.

2. Burden of Proof and Punishment for Small Quantity:-Under S. 27 of the principal Act, the punishment for illegal possession in small quantity for personal consumption of any Narcotic Drug or Psychotropic Substance was imprisonment for 1 year or with fine, imprisonment with 6 months, or with fine or with both, depending upon the nature of the substance. By Notification dated 14.11.85, small quantity of 5 Narcotic Drugs were published and power was vested with the Chief Medical Authority of each District to prescribe, the small quantity of Psychotropic Substances which were not notified. Even though an elaborate schedule specifying the small quantity had been notified as early as in 1996, unfortunately, the notification had come to the notice of legal circle much later. Moreover, the notification was issued really for the purpose of invoking the benefits of S. 27 of the Principal Act. Even though in the case of general exceptions in the Indian Penal Code and other statutes, burden of proof was that of preponderance of probability, under the Principal Act, the burden of proof under S. 27 was not that of preponderance of probability, but one beyond the shadow of reasonable doubt. In otherwords, if one wanted to avail the benefit of S. 27 of the Principle Act, apart from rebutting the presumption under S. 54 one had to prove it beyond reasonable doubt. This particular position had the inherent danger of first admitting the possession and then proving that it was for self consumption. True, if the venture was successful one could escape with either 6 months or 1 year imprisonment or with fine or with both according to the nature of the substance. But if it failed, tine had no other remedy but to undergo a sentence of minimum R.I. for 10 years and pay minimum fine of Rs. 1 lakh which may extend to R.I. for 20 years and 2 lakhs fine. This was the juncture where the trial lawyer literally felt his nerves breaking in taking up a decision; whether to plead possession for self consumption or go for a trial of total denial.

The Amended Act has now bestowed the trial lawyer with great relief in the above aspect. According to the Amended Act, whatever be the substance, if it comes under small quantity, the maximum sentence that can be awarded is only 6 months or with fine or both. The accused need not prove at all that it was for his personal consumption.

Likewise, the punishment for intermediate quantity has been reduced to one of R.I. which may extend up to 10 years and with fine.

The sword of Democles now hangs only above the head of Ss. 19,24,27A and commercial quantity wherein the punishment is rigorous imprisonment for a term which shall not be less than 10 years, but which may extend to 20 years and shall also be punishable with fine which shall not be less than 1 lakh, but which may extend to 2 lakhs.

To put it simply, if an accused is booked for possessing 1 kg. of ganja (small quantity) he can be punished with R.I. for a term which may extend to 6 months or with fine or with both; if it is exceeds 1 kg. and is short of 20 kg. (which is the commercial quantity) with rigorous imprisonment which may extend upto 10 years and with fine and if it is 20 kg. or more, with R.I. for a term which shall not be less than 10 years, but which may extend to 20 years and shall also be liable for fine which shall not be less than one lakh but which may extend upto 2 lakhs rupees.

3. Substantial Change in the case of Bail:Before the amended Act, S. 37 of the Principal Act regulated the bail conditions. One of the insurmountable conditions for release on bail was that the Court should be satisfied that there were reasonable grounds to believe that the accused was not guilty of the offence alleged against him/her. Blatant violations of S. 50 or 42 of the Principal Act were the only loop holes.

Another peculiarity of the section was the prominence of the prosecutor over the Judge in exercising the discretion of granting bail. The wording of S. 37 'The Public Prosecutor should be given notice and if he opposes' manifestly meant that if the Prosecutor refrained from opposing grant of bail, the Judge had to grant bail. In case of opposition from the Public Prosecutor, the Court had no other option but to resort to the clause of belief that the accused was not guilty and that there was no likelihood of his repeating the offence if bail was to be granted.

The only other remedy was the right under the S. 167(2) of the CRPC, which vigilant prosecuting agencies almost always shut out by filing the charge sheets within the prescribed time limit.

The Amendment Act has deleted from S. 37, the words 'a term of imprisonment for 5 years or more' under the Principal Act and substituted the words, figures, and letters "offences under S. 19, or S. 24, or S. 27A and also for offences involving commercial quantity". The substitution categorically excludes Ss. 15, 16, 17, 18, 20, 21, 22 & 23 from the grip of the stringent conditions of S. 37 of the Act in as much as they don't come under the commercial quantity.

The offences punishable under Ss. 15,16,17,18,20,21,22 & 23 of the amended Act whether bailable or not.

The heading of S. 37 of the Principal Act 'offences to be cognizable and non bailable' which appears as such in the Amended Act has created some confusion.

To come to a conclusion regarding the confusion with respect to the head note 'non bailable' which appears in the principal Act and stand as such in the amended Act, recourse has to be taken to various Sections of the amended Act as well as interpretation of statutes.

Decisions are a plenty that head notes by themselves do not mean much in certain circumstances, where the wording of the sections covered by the head notes are clear and unambiguous. A systematic approach to various sections lying scattered in the amendment Act will be sufficient to clear the doubts in this regard.

S. 36A. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973,

(a) All offences under this Act which are punishable with imprisonment for a term of more than three years shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more special Courts than one for such area, by such one of them as may be specified in this behalf by the Government.

(b) So also S. 36A(5)of the amendment Act reads as follows:

Notwithstanding anything contained in the Code of Criminal Procedure. 1973. The offences punishable under this Act with imprisonment for a term of less than three years may be tried summarily:

(c) In the Notes on clauses, clause 15 reads as follows:

This clause provides for trial of offenders who are charged with offences punishable with sentence upto three years by the Court of Magistrate and for Summary trial of such offenders. This clause also provides for remand of accused charged with serious offences upto one year without filing challan/complaint.

Now that S. 37 has deleted the words "offences punishable with imprisonment of 5 years or more and has mentioned only Ss. 19, 24, 27A and commercial quantity, grant of bail for offences coming under Ss. 15,16,17,18,20,21,22,23,26& 27 will be controlled by the Code of Criminal Procedure (excluding commercial quantity). NDPS Act, being an other law than the Indian Penal Code, recource will have to be taken to the second Schedule of Cr. P.C. which deals with classification of offences against other laws. When viewed in that angle, offences mentioned above which are punishable with sentence less than 3 years should be construed as bailable and those which exceed as non bailable. It is needless to say that the provisions regarding grant of bail enumerated under the second Schedule of the Criminal Procedure Code, squarely applies to the above sections.

Applicability of the Act and an Anomaly

S. 41 of the Amendment Act describes the applicability of the Act. It reads as follows:-

Notwithstanding anything contained in sub-s. (2) of S. 1 all cases pending before the courts or under investigation at the commencement of this Act shall be disposed of in accordance with the provisions of the principal Act as amended by this Act and accordingly, any person found guilty of any offence punishable under the principal Act, as it stood immediately before such commencement, shall be liable for a punishment which is lesser than the punishment for which he is otherwise liable at the date of the commission of such offences:

Provided that nothing in this section shall apply to cases pending on appeal. There is no ambiguity in the wordings that from 2.10.2001 onwards the principal Act as amended by the amendment Act of 2002 will be applicable to all cases pending before the court or under investigation at the time of commencement of the Amendment Act.

The only anomaly seems to be the proviso to S. 41 which says that nothing in that section shall apply to cases pending on appeal. Even though the wording are clear and unambiguous and the intention of the Legislature seems to be beyond doubt, the proviso seems to be unconstitutional as far as it discriminates an accused (appellant) punished for possessing small quantity and undergoing sentence for a minimum period of 10 years and minimum fine of 1 lakh for failure to prove possession for personal consumption with an accused who possesses small quantity and escapes with maximum sentence of 6 months with or without fine;

The proviso is arbitrary, unreasonable and highly discriminatory. No reasonable classification can be spelt out from any of the sections either in the Principal Act or amended Act.

Procedure in cases triable for offences punishable with less than 3 years.

When S. 36A specifically states that all offences under this Act which are punishable with imprisonment for a term of more than 3 years shall be triable only by the special court constituted........... It can be safely assumed that all offences triable upto 3 years shall be tried by Magistrate Courts. Reading S. 36(5) along with 36(A) will clearly show that summary trial of such offences are also allowed.

The question then to be considered is how Cr. P.C. deals with the problem. S. 228 of the Cr. P.C. it seems, throws ample light on this aspect. S. 228 deals with cases where sessions Judge feals that the trial before him is not exclusively triable by court of Sessions. What is prescribed in such cases in that the court may frame a charge against the accused and may transfer the case to the Chief Judicial Magistrate and thereupon the Chief Judicial Magistrate Court shall try the offences in accordance with the procedure for trial of warrant cases instituted upon police report. For the time being, this seems to be the only procedure that can be adopted in cases involving small quantity.

This procedure when adopted in Kerala is sure to burden the C.J.M. Courts with cases of small quantity in that Session Division. Here it has to be noted that in Karnataka and Kolkatta amendment has been effected in S. 228 Cr. P.C. by amending the wording of the Section "to the Chief Judicial Magistrate Court or any other competent Court". It would therefore be much helpful if such an amendment is carried out in Kerala too. Let us hope that the appropriate authorities will take the necessary steps for amendment of this section at the earliest.

Suspension of sentence by trial courts and appellate courts

S. 32A of the Principal Act had imposed a complete ban on the suspension, remission and commutation of sentences in cases wherein accused were convicted under the NDPS Act (Excepting conviction under S. 27 of the Principal Act). The Hon'ble Supreme Court had in a recent decision (before the amendment) considered the constitutional validity and inter alia had declared that an accused convicted for other offences than S. 27 would be entitled to suspension of sentence if at the appellate stage, he could convince the court that the conditions prescribed in S. 37 of the principal Act still existed.

Now that S. 37 has left out Ss. 15,16,17,18,20,21,22 and 23 from its ambit, S.389 of the Criminal Procedure Code would have to be adhered to in the matter of suspension of sentence. The observation of the Hon'ble Supreme Court regarding the suspension of sentence also will have to be treated and no more applicable after the amendment. Therefore, it has to be assumed that the suspension of sentence regarding the above offences will be controlled by the provisions ofS.389 Cr. P.C.

Trial by which Court and committal if necessary

In the light of S. 36A, only special courts and designated courts can be deemed to be Courts of original jurisdiction for trial of NDPS cases for which punishment for more than three years are prescribed. Where it is only upto 3 years, the Chief Judicial Magistrate alone will be competent to try the offence ie., regarding pending cases and investigation. Where it exceeds 3 years, the FIR can be directly filed before the special court since it has original jurisdiction by virtue of S. 36(A). If by mistake or ignorance of the investigating agency, FIR and annexed documents and MO's of cases wherein only offences triable upto 3 years are filed before the special Court after the commencement of the Amendment Act they will have to be returned back to the Magistrate Court having jurisdiction to try the case and in the cases involving offences punishable with more than 3 years, if the documents are filed before the Magistrate Courts, these Courts will have to forward it to the special courts.

Apart from the proviso to S. 41 of the Amendment Act which denies the application of the benefit of S. 41 to cases pending on appeal, the whole amendment Act is a welcome change. In the light of the fact that there had not been any decrease in the commission of crimes of NDPS cases inspire of stringent punishments and bail conditions being imposed by the Principal Act, one is constrained to think that sincere effect on the part of the investigating agency in prevention of crimes by booking the realguns behind the drug business and whole-hearted effort from all sections of the society to create awareness regarding the dangers inherent in the use of drugs are the best possible ways of saving the society from this menace.

Court of Judicial Magistrate of the Second Class

Should Not Such a Court be Established

(By K. Aravindaksha Menon, Retd. District Judge, Ernakulam)

Constitution of Criminal Courts and offices are provided for, by Chapter II of the Code of Criminal Procedure, 1973. S. 6 of the Code lays down, there shall be in every State the following classes of criminal Courts namely

I.

ii.

III. Judicial Magistrate of the Second Class

Section 11 reads as below

11. Courts of Judicial Magistrates -(1) In every district (not being a metropolitan area), there shall be established as many Courts of Judicial Magistrates of the first class and of the second class, and at such places, as the State Government may, after consultation with the High Court, by notification, specify:

1) Provided that the State Government may, after consultation with the High Court, establish for any local area, one or more Special Courts of Judicial Magistrates of the first class or of the second class, to try any particular case or particular class of cases, and where any such special court is established, no other Court Magistrate in the local area shall have jurisdiction to try any case or class of cases for the trial of which such Special Court of Judicial Magistrate has been established.

2) The presiding officers of such courts shall be appointed by the High Court.

3) The High Court may, whenever it appears to it to be expedient or necessary, confer the powers of a Judicial Magistrate of the first class or of the second class or any member of the Judicial service of the State, functioning as a Judge in a Civil Court."

The Code dictates there shall be the courts of the Judicial Magistrates of the first class and of the second class.

S. 14(1) is as below

Subject to the control of the High Court, the Chief Judicial Magistrate may, from time to time, define the local limits of the areas within which the Magistrates appointed under S. 11 or under S. 13 may exercise all or any of the powers with which they may respectively be invested under this Code:

(Provided...............)

(2)......................

(3)......................

The expression 'respectively' requires to be emphasised. This would indicate that the Magistrate of the First Class may exercise only such of those powers that may be conferred on him. So also the Judicial Magistrate of the Second Class may exercise only such of those powers that are conferred on him.

S. 26 in Chapter III specifies the Courts by which offences are triable. Any offence under the Indian Penal Code may be tried by the High Court or the Court of Session or any other court by which offence is shown in the first Schedule to be triable. The Schedule mentions cases triable by the courts of the Judicial Magistrate of the first class and "any Magistrate". There is no mention of the Judicial Magistrate of the second class in the Schedule in the last column under the heading 'by what court triable.' Therefore the thinking appears to be that an offence triable by the Magistrate of the Second Class can be tried by the Judicial Magistrate of the first class. But this approach overlooks that "any Magistrate" should be Magistrate on whom respective powers are conferred. Any Magistrate authorised to try offences may try only such of those offences, to try which, powers under S. 14(1) are conferred when that be so, the Judicial Magistrate of the first class may exercise only such of those powers that are conferred on him under S. 14 of the Code. It does not look that the Judicial Magistrate of the first class can exercise, the powers of the Magistrate of the Second Class unless such powers are also conferred.

It appears that of late, in view of the notification G.O. (P) No. 190/91/Home. Dated, Thiruvananthapuram 31st December, 1991 establishing a common service called the Kerala Judicial Service in the place of then existing Kerala Civil Judicial Service and Kerala Criminal Judicial Service, powers of the Judicial Magistrate of the Second Class are not being conferred at all. By the notification a common Service is formed by integrating the members of the Kerala Judicial Service consisting of subordinate Judges and Munsiffs and the members of the Kerala Criminal Judicial Service consisting of Selection Grade Chief Judicial Magistrates, Chief Judicial Magistrates Senior Grade Judicial Magistrates of the first class, Judicial Magistrates of the first class and Judicial Magistrates of the Second Class.

The notification has not and could not abolish courts of the Judicial Magistrate of the Second Class. Courts of the Judicial Magistrate can exercise only such of those powers that may be conferred on them under S. 14. S. 32 provides that in conferring powers under the Code the High Court or the State Government may empower persons specially by name or in virtue of their offices or classes of officials generally by their titles. Therefore, the Munsiff Magistrate, since the notification referred to above have to be conferred powers of the Judicial Magistrate of the first class and of the second class to satisfy the requirements of the Code as otherwise trial of cases triable by the court of the Judicial Magistrate of the Second Class by the Munsiff Magistrate on whom powers of the Second Class Magistrate are not conferred may not be good in law. It appears that'only powers of the Judicial Magistrate of the first class are conferred on the Munsiff Magistrates since the notification of 1991 mentioned above.

May be, the question is worth discussion.

The Securitisation Ordinance - 2002

(By Devan Ramachandran, Advocate, Ernakulam)

Preface

If there is one prominent concern voiced by every Finance Minister tabling the successive Budgets before Parliament is the escalating amount of Bad Debts and its catastrophic impact on the economy of the Country.

The total amount of Bad debts in India is estimated to be anywhere between Rs. 1,00,000 and 1,20,000 crores. Rather disturbing piece of statistic, of course, for a developing economy. Various Committees set up by the Governments at various times have tried to address this problem. The Narasimham Committee reports and the Andhyarujina Committee report have made various recommendations to attempt and bring down the amounts tied up in such bad debts. The Financial Sector have also been lobbying hard for imperative changes in the system for immediate and expeditious recovery of these debts.

It was always thought that the delay in the legal system was one of the primary reasons that hampered speedy recovery of the debts. The Narasimham Committee reports therefore, recommended the setting up of Special Tribunals with special powers for adjudication of the cases and for speedy recovery of the bad debts. It was with this object that the "'Recovery of Debts Due to Banks and Financial Institutions Act, 1993" was enacted. The Act provided for much more simplified and uncomplicated methods for adjudication and recovery of the debts. To add to the momentum, the Government announced various Amnesty and "One Time Settlement" Schemes for repayment of the defaulted debts.

Though the above measures worked to a certain extend, it was still felt that in spite of these measures, the Banks and Financial Institutions were still reeling from lack of liquidity on account of the locking up of large amounts of money in bad debts. It was therefore, necessary to provide liquidity by somehow converting the bad debts into something more productive. This process is defined as "Asset Reconstruction" in the Ordinance. The Ordinance also seeks to arm the Banks and Financial Institutions with sufficient power to enforce their Security interest. Thus on the one side the Ordinance aims at providing Securitisation and Reconstruction of the Assets (bad debts) and on the other to provide for the effective enforcement of the Security interest by the secured creditor.

Securitisation and Asset Reconstruction

The Ordinance provides for this by setting up a Securitisation Company or a Reconstruction Company as per the provisions of Ss. 3 and 4 of the Ordinance. Such a company is required to obtain a registration certificate as per S. 3 of the Ordinance. Such a company may then acquire any right or interest of any Bank or Financial Institution in any financial assistance for the purpose of realisation of such financial assistance. This is called "Asset Reconstruction". Simply put the bad debts are thus acquired by a Securitisation Company or a Reconstruction Company for a consideration to be fixed mutually. The bank is thus able to convert the bad debt into valuable resources so as to enable it to use the same for more productive purposes. This is made possible by allowing the banks and other financial institutions to convert their assets into "Securities" in the form of Debentures or Bonds for valuable consideration, which may then be acquired by a Securitisation Company or Reconstruction Company (S. 5 of the Ordinance).

The Ordinance further provides that once the Securitisation Company or a Reconstruction Company acquires the assets as stated above, they would be deemed to be the lender and would be entitled to all the rights of the Bank. It is further provided that the acquisition of the asset by a Securitisation Company or a Reconstruction Company would not in any manner abate or discontinue any suit or other legal proceeding and that the same will be continued prosecuted and enforced by the acquiring company.

Methods for Asset Reconstruction

S. 9 of the Ordinance details the methods that could be adopted by the Securitisation Company or a Reconstruction Company for the purpose of asset reconstruction. These include the power:

(a) to ensure proper management of the business of the borrower by change in, or take-over of, the management of the business;

(b) the power to sell or lease the whole or part of the business of the borrower;

(c) the power to reschedule the payment of debts by the borrower;

(d) the power to settle the dues by the borrower and

(e) taking possession of the assets in accordance with the provisions of the Ordinance.

Enforcement of Security Interest

Chapter III, S. 13 of the Ordinance provide for far reaching powers to the secured creditor to enforce a security interest. The secured creditors have been empowered by the Ordinance to enforce any security interest created in their favour, without the intervention of the Courts or Tribunals in accordance with the provisions of the Ordinance.

i) Methods for enforcing security interest

The section provides that where a borrower, under a liability to a secured creditor under a security agreement, makes default of the payment of the debt and such debt is classified as a Non Performing Asset, such creditor may issue a notice to the borrower directing him to discharge the liability in full within a period of sixty days from the date of receipt of the notice. If the borrower fails to do so, the creditor has been empowered by the Ordinance to exercise any of the powers detailed in the section. These include:

(a) the power to take possession of the secured assets including the right to take possession of the assets of the borrower including to transfer by way of lease, assignment or sale;

(b) the power to take over management of the secured assets of the borrower including to transfer by way of lease, assignment or sale;

(c) the power to appoint any person as a Manager to manage the secured assets taken over by the secured creditor;

(d) the power to require at any time by notice in writing, a person who has acquired any of the secured assets from the borrower and from whom any money is due or may become due to the borrower, to pay to the secured creditor, so much money as is sufficient to pay off the secured debt.

(ii) Power of Secured Creditor to seek assistance of Chief Metropolitan or District Magistrate to take possession

S. 14 of the Ordinance provides that where the possession of the secured asset is required to be taken by the secured creditor or the same is required to be sold or transferred, the secured creditor may for this purpose request in writing the Chief Metropolitan Magistrate or the District Magistrate within whose jurisdiction the asset or other documents is situated to take possession thereof. On receipt of such a request, the said Magistrate shall take possession of the said asset or documents and forward such asset to the secured creditor. The section also empowers for this purpose, the Chief Metropolitan Magistrate or the District Magistrate to take, or cause to be taken, such steps and also to use, and cause to used, such force, as may, in his opinion, be necessary. The Ordinance also make it clear that any act done by such Magistrate in pursuance of this section shall be called in question in any Court or before any authority.

iii) Manner and effect of take over of management:

S. 15 of the Ordinance provides that when the management of the business of the borrower is taken over by a secured creditor, the secured creditor may by publishing a notice in a newspaper appoint as many persons as it may think fit as Administrator to administer the business of the borrower and if the borrower is a company as defined under the Companies Act, 1956, as Directors of such company in accordance with the provisions of the Companies Act. On the publication of the above notice, all the Directors of the company, if the borrower is a company and all persons holding any office of superintendence, direction or control of the business of the borrower in other cases, shall immediately be deemed to have vacated their offices as such. The Directors and Administrators appointed as above shall take all steps necessary to take into their custody or into their control all the property, effects and actionable claims of the business of the borrower. The ordinance further provides that once the management is taken over as above, no proceeding for winding up of the company or appointment of receiver shall lie in any Court, except with the consent of the secured creditor. Finally when the debt is realised in full, the secured creditor shall restore the management of the business of the borrower to him.

iv) Appeals

S. 17 provides that any person including the borrower, who is aggrieved by the measures taken by the Secured Creditor to enforce his secured interest may prefer an appeal to the Debt Recovery Tribunal of relevant jurisdiction within fourty five days. However, the Tribunal can entertain the appeal only if the appellant deposits seventy five percent of the amount claimed in the notice. This amount may be waived or reduced by the Tribunal for reasons to be recorded in writing. A further appeal to the Appellate Tribunal is provided under S. 18 of the Ordinance within thirty days from the date of receipt of the order of the Tribunal.

Other salient provisions

i) Ordinance to override other laws:S. 35 of the Ordinance states that the provisions of the Ordinance shall have effect, notwithstanding anything inconsistent therewith contained in any other law in force.

ii) Application of other Laws not barred :S. 37 provides that the provisions of the Ordinance and Rules shall be in addition to, and not in derogation of, the Companies Act. The Securities Contracts (Regulation) Act. The Securities and Exchange Board of India Act, The Recovery of Debts Due to Banks and Financial Institutions Act and such other laws.

iii) Civil Courts to have no jurisdiction:S. 34 of the Ordinance provides that no Civil Court shall have the jurisdiction to entertain any suit or proceeding in respect to any of the matters which the DRT or the Appellate Tribunal is empowered to determine. It also provides that no injunction shall be granted by any Court or Authority in respect of any action taken or to be taken under the Ordinance.

iv) Register of Securitisation. Central Registry etc :S. 20 of the Ordinance provides for the establishment of a Central Registry to maintain a record of all transactions. Ss. 21 and 22 provides for the appointment of a Central Registrar and for the setting up of a Central Register under his control. Particulars of every transaction of securitisation, assets reconstruction or creation of security are to be filed with the Central Registrar within thirty days after the date of such transaction or creation of security. The particulars entered in the Register would be open for inspection by any person on the payment of a fee.

The impact and effect

The Ordinance is definitely a step in the right direction. The objectives are certainly laudable and right in earnest. The provisions for Securitisation of assets would inject the Financial Sector with immediate liquidity, since the Banks and other Financial Institutions would be able to convert their bad debts into securities which can be returned to the system without having to wait for years to realise the debts. The idea behind the Ordinance is to ensure that the Banks and Financial Institutions are given an impetus to lend money to worthy persons and causes without the fear of having to deal with the large amounts of "Non Performing assets". The Ordinance aims to specifically deal with the problem of "Non Performing Assets" and aims to convert the same into "Performing Assets" in the form of securities.

The Ordinance has addressed the problem of the Banks and Financial Institutions having to wait for years to exercise their right to sell the mortgaged property. S. 13 of the Ordinance, which permits the banks to enforce their security interest in the manner specified therein, expressly overrides the provisions of S. 69 the Transfer of Property Act, which restricts the rights of the mortgagee to sell the mortgaged property. The endeavour in the Ordinance is to instill hope and courage in the banks and financial institutions to lend.

There are however reasons for concern also. The provisions of the Ordinance would make it impossible for even for non willful defaulters to make a proper defense. The Ordinance does not deal with a situation where an account becomes non performing for no default of the borrower or where the borrower is facing actual financial precariousness. There is also the danger of the Banks or Financial Institutions turning sanguinary and exercising the powers under the Ordinance to enforce their security by selling the same in haste and without offering the borrower an opportunity to state his case. Added to this is the rigorous S. 17(2) of the Ordinance, which makes an appeal to the Debt Recovery Tribunal virtually impossible, since this section mandates that the Tribunal may not entertain the appeal unless the borrower deposits seventy five percent of the amount claimed by the Bank or the Financial Institution as the case may be. These concerns may perhaps have to be reconciled by the Hon'ble Court when the Ordinance is pressed into service in the days to come.

There cannot be any ambivalence for the need for implementation of a strong law for recovery of bad debts. The insalubrious escalation of non performing assets needed to be addressed urgently. In such focus, the Ordinance is on the right direction. Much would now depend on the manner in which it is put into use.

Shariat and Child Marriage

(By S.A. Karim, Advocate, Vanchiyoor, Thiruvananthapuram)

The Muslim Personal Law Board has opined that the Child Marriage Restraint Act, 1929, hereafter refers the Act, is against the shariat and therefore, it is not binding to Muslims. This gave a re-birth to a practically dead Act. As per the Act, the minimum marriageable age of a girl is the completion of 18th year and a boy 21 years. S. 2(a) of the Act reads -

Child means a person who, if a male, has not completed twenty one years of age and, if a female, has not completed eighteen years of age.

The statement of objects and reasons of the Act, among other things, says this minimum marriageable age has been fixed to check the population growth, to enable a responsible parenthood, to delay the fertility period and to protect the health of the mother as well as the child. In our country the tendency is delayed marriage.

Mulla's Principles of Mohammedan Law is one of the Authorities on Muslim Personal Law, the shariat. S. 251 speaks about the capacity of marriage. It reads -

1. Every Mohammedan of sound mind, who has attained puberty, may enter into contract of marriage.

2. Lunatics and minors who have not attained puberty may be validly contracted in marriage by their respective guardians (Ss. 270-275).

3. A marriage of a Mohammedan who is of sound mind and attained puberty, is void, if it is brought out without his consent.

Explanation - Puberty is presumed, in the absence of evidence, on completion of the age of fifteen years.

Dr. Tahir Mohammed is another authority on shariat. In his book Muslim Law of India, he agrees puberty and sound mind decide the capacity of marriage similar to that of Mulla. In the 1980 edition page 48 of the book, he narrates the following regarding puberty. It reads -

i. Puberty is a physical phenomenon to be ascertained by evidence.

ii. In the absence of evidence to the contrary, it is generally presumed that a person who has completed the fifteenth year of age has attained puberty.

iii. The possibility of attaining puberty by a boy as well as by a girl before the age of fifteen years, however, recognised by law.

iv. The earliest age of puberty for a boy is, generally, twelve years.

v. The earliest possible age of puberty for a girl is, generally, nine years.

The dictionary meaning of puberty is beginning of sexual maturing, a stage at which a person's sexual organs are maturing and he or she becomes capable of having children. It indicates puberty is between 9 and 15 years of age. If shariat is followed, the Act is violated.

Shariat is considered the revelations of Prophet Mohammed and his disciples. Like man is the product of circumstance, the Prophet was the product of circumstance existed in Arabia fourteen centuries back. His revelations were made with good intention and for the welfare of the society at large. What was good in Arabia need not be the same to the rest of the globe. Such revelations can only be a guide line to the future generations. In our country an Act has been passed by the elected representatives of the people after considering the various aspects on the timing of marriage. It is based on reality and necessity. The intention of the Act in discussion is to prevent population explosion and to protect the health of the mother and the child. If this is true, the Act must prevail over the guide lines.

Act 46 of 1999 and Act 22 of 2002 (C.P.C. Amendment)

New Orders in Disorder

(By K.R. Giri Iyer, Advocate, Ottapalam)

O. XVIIIR. 4(1) of the New Code reads in every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence:

O. XVIII, R. 5 of the Code reads in cases in which an appeal is allowed, the evidence of each witness shall be,-

(a) taken down in the language of the court,-

(i) in writing by, or in the presence and under the personal direction and superintendence of the Judge, or

(ii) from the dictation of the Judge directly on a type writer; or

(b) if the Judge, for reasons to be recorded, so directs, recorded mechanically in the language of the court in the presence of the Judge.

The dilemma arises:-

1) Whether in appealable cases chief examination can be on affidavit?!

2) If so whether is it in conflict with O. XVIII, R. 5?

3) Whether the amendment in O.XVIIL R. 5 includes all the witnesses and party?

4) What was the actual intention of the Legislature?

Now at the outset on literal interpretation both provisions are in conflict.

It is so because O. XVIIIR. 4 mandates affidavit in all cases of chief examination whereas in O. XVIII, R. 5 the mention of appealable cases stands. So in order to avoid repugnancy it can be stated that in cases in which appeal is allowed the evidence has to be taken as mentioned in O. XVIII, R. 5. There is no special mention in the objects and reasons with regard to this provision when the Bill was introduced and passed. But in general the intention was to have a speedy disposal of cases. The Evidence Act, S. 3 defines evidence as "Evidence" means and includes-

"(1) all statements which the court permits or requires to be made before it by witnesses in relation to matters of fact under enquiry; such statements are called oral evidence;".

And S. 138 reads witnesses shall be first examined in chief, then (if the adverse party so desires) cross examined, then (if the party calling him so desires) re-examined.

The examination and cross-examination must relate to the relevant facts but the cross-examination need not confined to the facts to which the witness testified on his examination-in-chief.

So there is no corresponding amendment in the Evidence Act and if affidavit is filed instead of chief examination whether it will come under the evidence as contemplated under the Evidence Act because it will not come under S. 3. Affidavit cannot be considered to be made before it and it does not come under documentary evidence also. And more over in S. 142 it is stated that leading question shall not be asked in an examination in chief where there is no amendment.

Initially the affidavit was considered as dependable for the purpose of making summary adjudications and for making interim orders like in O. XXXIX R. 1 and O. XXXVIIIR. 5 of the Code. So the value of the affidavit as per the Evidence Act and the Code as mentioned in O.XIX itself will show that it was not treated as proper evidence or a ultimate say in highly disputed issues.

While giving harmonious construction repugnancy to be avoided and construction most agreeable to justice and reason has to be taken. And even in case the principle of Repeal by implication to be adopted that should also agreeable to justice and reason. The Latin Maxim "Ut Res Magis Valeat Quam Pereat" A thing may have effect rather than be destroyed. If two interpretations are open that alternative has to be chosen which will be consistent that the smooth working of the system which it purports to be regulating and alternative has to be chosen which will introduce uncertainty, fiction or confusion, i.e. Rule of harmonious construction is to reconcile conflict. An Act shall not be rendered otiose or ineffective or nugatory. Even that may be the position as stated earlier it shall not cause injustice. In my humble view it will cause injustice in the following points or occasions if affidavit is insisted even in the case of O. XVIII, R. 5.

1) When the person who is summoned to depose before a court of Law on summons issued directly to him when comes to court has to depend someone to prepare an affidavit which is most inconvenient and moreover they will not be able to say why they were summoned before a person who prepares the affidavit and then naturally they have to contact the concerned Counsel's office which will in turn effect the trust worthiness of the witness or he will be forced to concede to the words of the party summoning him whereas if he is put directly to the box he will be having free mind to depose before the court without any compulsion, coercion cajoling or like things.

2) In the case of illiterate or semi literate person if the affidavit is prepared and given by the persons who dupes him he may not know what all things are stated in the affidavit probably that aspects may be left without cross examination and will be later taken as evidence and if it is cross examined he may say that it was included on the request of the party and he has no direct knowledge for which he may even face prosecution.

3) In the case of cross examination of Commissioners also how can a chief examination affidavit be prepared and possible.

4) Moreover it will further cause delay because when the witness who is summoned comes to the court then only he knows about the affidavit and all and he may have to come again on the next day or wait till the affidavit is prepared which will take away the valuable time of witnesses like doctors etc.

5) Another important aspect is that who will bear the expenses for preparing an affidavit who will attest or witness the solemn affirmation of the affidavit if the witness has no persons to identify or no lawyer to attest known to him or knows him especially when comes from a long distance.

6) Marking of documents through chief examination in the case of affidavit as stated in O. XVIIIR. 4 sub-r. (2) also causes threat to both sides because the opposite side cannot object the marking during the chief examination, which is relegated to the argument, or as stated in the provision subject to the orders of the court, which will cause serious impediment in adducing evidence and even effect the natural justice. For example if the document is insufficiently stamped and if it is marked without objection it cannot be later questioned according to various decisions and even suppose if such opportunity is allowed during the argument the difficulty is that if the document is found inadmissible one will know it in the judgment only so that he will not further get an opportunity to adduce evidence regarding the original cause of action independently without the document which will shut out the evidence and in turn dismissal of his case will be the result and in appellate court also no justice will be given to him. As stated in AIR 1961SC1655 unstamped document marked as exhibit in the case and has been used by parties in examination and cross examination of witness-order admitting document in evidence is not liable to be reviewed or revised at any subsequent stage and not even in appeal. It is note worthy that in the case of admissibility of documents especially under Stamp Act relating to insufficiently stamped promotes or Bill of exchange even various High Courts and the Lordships of the Apex Court are having divergent view so that poor lay man shall not suffer and moreover if it is found that they are insufficiently stamped it cannot be impounded.

So in my humble view the above limited circumstances will be sufficient to say that the amendment of O. XVIII, R. 4 if given effect to even in appealable cases with the present wordings will be denial of justice and harmonious construction shall not be given and I beg to say that justice hurried is justice buried and reasonable change is a must. Even perusing to the general intention of the Legislature in the present amendment it can be seen that the intention was to speed up and save time which will be defeated by the wordings of this provision and multiplicity of litigation will be the result in order to give effect to the amendment the concerned O. XVIII, R.4 should be given with sufficient explanation in order to avoid the above difficulties and O. XVIII, R. 5 also should be properly amended.

One other anomaly is regarding new O. XLI R. 9 i.e. Registry of memorandum of appeal. It reads as

(1) The court from whose decree an appeal lies shall entertain the memorandum of appeal and shall endorse thereon the date of presentation and shall register the appeal in a book of appeal kept for that purpose.

(2) Such book shall be called the register of appeal.

I may be forgiven to say that this is a provision without head or tail. The section does not say after presentation of the memorandum before the court which decided the suit which is to be registered there and there after what is to be done with the memorandum whether returned to the person presents or transmitted to the appellate court or to be retained and even regarding the production before it there is no direction. Moreover whether the original memorandum if given to the court decided the suit how can one file an appeal before the appellate court and if interpreted in another way it is as if filing an appeal before the court in which the suit is decreed or dismissed and not in a appellate court. Moreover, the earlier provision 0. XLIR. 13 is now omitted which was intended to give notice to the lower court. But at the same time the appendix H Form 15 to the Code still retains the original form of register of appeal which includes details to be filled like the date of presentation, day for appearance of parties and number of appeal etc. which can only be received after presenting it before the appellate court like wise the chapter head of O. XLI R. 9 still reads as Procedure on admission of appeal and moreover it will cause serious inconvenience because a person who has to prefer a appeal before the Honourable High Court from Cannannore court has to first take the bundle to the lawyer at Ernakulam then prepare the Memorandum take it back to the home court and then present it before the court which decided the suit and take back and again rush to the appellate court which will only increase the delay expense and inconvenience which is never intended by the Legislature. Now my humble view on the point is that O. XLI R. 9 may be further amended so as to avoid this confusion and it will be better to draft the provision so as to file the appeal before the appellate court and after admitting it the appellant may be directed to file a copy of the memorandum of appeal before the court which decided the suit along with day for appearance, appeal number etc. and file an affidavit before the appellate court to that effect and on such receipt the lower court can register the appeal and send the suit records to the appellate court which will expedite the proceedings and will meet the intention of speedy procedure for the purpose of calling the lower court records.