Vidhi Vaidya

02/01/2024

✨WISHING YOU ALL A HAPPY NEW YEAR ✨

23/11/2023

The Overarching of BIS Act ( Bureau of Indian Standards ) and The Jurisdiction of Customs.

The BIS Act, 2016 was enacted by the union parliament on 21/03/2016 with a view to harmonize standardization and to ensure quality assurance to the domestic consumers. The Act extends to whole of India and Parliament has not mandated it to have an extra-territorial jurisdiction. Surprisingly, the overseas manufactures of goods which are notified for compulsory registration have to obtain registration under the Act after complying through the process of sample checks and inspection of the manufacturing facility. It is trite that the overseas manufactures may have the registration and do adhere to the specified quality but at times due to oversight, because such requirement may not be legally mandated in their country, fail to comply minor requirement such as labelling with Standard Mark or putting of the Registration Number on the product. This has given rise to disputes as Customs treat these goods as “Prohibited “for import and puts embargo for its clearance.

Recently, Bombay High Court in the order dated 02/11/2023 in Writ Petition No. 10943 of 2023 (Chetak Technologies Ltd vs Union Of India ) and also under order dated 03/08/2023 in Writ Petition (L) 20358 of 2023 ( Prostarm Info Systems Ltd vs Union Of India Ors ) has in principle affirmed that labelling and marking requirement under the BIS Act, 2016 can be undertaken by the agents of the overseas manufactures if they amply with the Registration and Quality norms thereby granting a sign of relief to the domestic importers who plunge huge funds for import of goods upon assurance of the overseas manufactures and are later subjected to undue hardships because of no fault of their own. The wider issue of territorial jurisdiction of the BIS Act to the overseas manufactures is yet to be examined.

20/11/2023

Bio-Medical Waste Management

16/11/2023

The Best Way To Handle Medico-Legal Issues Is By Preventing Them

Medical profession has its own ethical parameters and code of conduct. The duties which a doctor owes to his patients are a duty of care in deciding whether to undertake the case, what treatment to give, administration of that treatment etc. A breach of any of these duties gives a right of action for negligence to the patient. No human being is perfect and even the most renowned specialist can make a mistake in detecting or diagnosing the true nature of a disease. To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent. Lawsuits for medical negligence can be minimized or avoided by taking steps to keep patients satisfied, adhering to policies and procedures, developing patient-centered care and adopting a clear and firm line of communication with the patient and their relatives.

15/11/2023

The West Bengal State Consumer Dispute Redressal Forum orders Doctor to pay Rs 5,00,000/- compensation along with the cost of litigation evaluated at Rs 20,000/- to the relatives of the patient for delayed blood transfusion when the patient was on dialysis and being treated for infection.

The West Bengal State Consumer Dispute Redressal Forum has ordered the Doctor to pay a compensation of Rs 5,00,000/- to the relative of the patient along with the cost of litigation evaluated at Rs 20,000/- in the Consumer Complaint No. 479 of 2018 vide Order dated 27.09.2023.

The fact of the case was that the patient was a known case of CRF (Chronic Renal Failure) and was undergoing regular dialysis and subsequently developed the catheter wound infection due to which was having fever. The dialysis of the patient was planned and while undergoing dialysis and being treated with antibiotics, the hemoglobin level of the patient fell from 6.7 gm% to 5.3 gm% within a span of 7 days and the general condition of the patient was deteriorated. On the seventh day too, the Doctor concerned did not advise dialysis on an emergency basis, but planned it after 4 days.

In due course, the condition of the patient further deteriorated, ultimately, she succumbed to death due to heart failure.
While there was divided opinion of the expert on the use of Vancomycin for Hospital Acquired Infection in the case of CRF, the experts were unanimous on the aspect that there was delay in blood transfusion.

The State Commission while going through the records of the case and the opinion of expert observed that Bolam Test is for defence and Belitho Test is for justice and the Court has to resolve dispute between the parties in a justiciable way and relying upon the opinion of the expert and acceptable methods of treatment. The State Commissioner also noted that the doctor is not guilty of negligence if he has acted in accordance with a practice so accepted by a responsible body of medical men skilled in that particular art, but since in this case the opinion of experts were unanimously pointing towards delay in blood transfusion, hence it was concluded that it was a fit case of Medical Negligence and accordingly ordered the Doctor to pay the compensation.

14/11/2023

NDPS Act Section 36A : Punjab and Haryana High Court.

Twin conditions viz. Pendency of Investigation and essentiality of detention is sina qua non for authorizing detention beyond 180 days in offences relating to commercial quantity under Section 36A of the NDPS Act, 1985 : Punjab and Haryana High Court

In Criminal Revision (CRR) No. 2100 of 2023 in a Judgement delivered on 03.11.2023, Hon’ble Punjab and Haryana High Court has held that in exceptional circumstances where it is not possible to complete the investigation within the period of 180 days as specified under Section 36A of the NDPS Act, 1985, the Special Court may extend the period of detention up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for detention of the accused beyond the said period of 180 days.

Hon’ble High Court has held that these ingredients envisaged in the proviso to Section 36A of the NDPS Act are rather conditions precedent and conditions sine qua non for invoking the provision of the aforesaid proviso in extreme circumstances where the investigation is not complete. In the case in hand the prosecution asked for extension of custody of the Accused because the FSL report was pending and despite DO letters on behalf of police officers, the FSL report was not prepared and hence the charge sheet could not be filed.

On perusal of the case records, Hon’ble Court held that there was no compulsive reason mentioned for extension of custody of the Accused by the prosecution and hence the default bail was allowed for want of satisfaction of conditions spelt out under proviso to Section 36A (4) of the NDPS Act, 1950.

11/11/2023

Kerala High Court sets aside conviction for want of prosecution to produce written consent of the Applicant to dispense with the requirement of being searched before a Magistrate or the Gazetted Officer of the specified Department .

The Kerala High Court has set aside the conviction of an accused for want of non-compliance of Section 50 of the NDPS Act, 1985 in Criminal Appeal No. 1200 of 2023 in a judgement delivered on 09.11.2023.

In the instant case the version of the prosecution was that a written communication regarding the information given to the Accused under Section 50 of the NDPS Act, was made. The prosecution further stated that the Accused had given his consent to dispense with the presence of gazetted Officer / Magistrate during search, that also in writing. Hon’ble High Court held that if the communications in writing existed, the prosecution ought to have produced the same before the court. The nonproduction of the documents gives rise to serious doubt as regards compliance of law, to an extent that the search and seizure get nullified.

In the absence of a search and seizure in compliance with the provisions of Section 50, the entire prosecution story against the appellant would crumble. Hon’ble Court further observed that when the consequence of the prosecution is serious, then the prosecution should stick to the letter of the law.

10/11/2023

Wishing Everyone A Happy Dhanteras✨✨

02/11/2023

Kerala High court directs enquiry with the Surrogate Mother for satisfying the “Altruistic Surrogacy”

In WP (C) No. 35506 of 2023, in an Order dated 01.11.2023, Hon’ble Kerala High Court has directed the DIG, Thiruvananthapuram, to cause an appropriate enquiry through a competent woman officer in civil dress, assisted by such other officers as may be necessary, who shall interact with the surrogate mother and her family and file a report before this Court whether she is acting in altruism or for any other interests.

It is noteworthy that the Surrogacy (Regulation) Act, 2021 allows surrogacy only for “altruistic” purposes, that too when the intending couple has medical indications necessitating gestational surrogacy. As per this Act, the surrogacy clinics are required to be registered under the Act. As per this Act, any registered medical practitioner, gynecologists, pediatrician, embryologists or any person who owns a surrogacy clinic or employed with such a clinic or centre or laboratory and renders his professional or technical services to or at such clinic or centre or laboratory, whether on an honorary basis or otherwise, and who contravenes any of the provisions of the Act shall be punishable with imprisonment for a term which may extend to five years and with fine which may extend to ten lakh rupees. In case of subsequent or continuation of the offence, the name of the registered medical practitioner shall be reported by the appropriate authority to the State Medical Council concerned for taking necessary action including suspension of registration for a period of five years. The Act also provides punishment for intending couple who take surrogacy except for the “altruistic” purpose, which may extend to imprisonment for a term extending to five years or fine up to five lakhs of rupees and for subsequent offence for imprisonment up to ten years or fine up to ten lakhs of rupees.

02/11/2023

31/10/2023

Judicial Ratio On Medical Negligence

The Hon’ble Apex Court relies and reiterates the principles laid down in the case of Jacob Mathew v. State of Punjab [(2005)
6 SCC 1 ] as regards MEDICAL NEGLIGENCE in a decision delivered on 19.10.2023 in the case of M.A. Bivji Vs Sunita and Others in Civil Appeal No. 3975 of 2018. Hon’ble Apex Court held that the three essential ingredients in determining an act of medical negligence are:
(1) a duty of care extended to the complainant,
(2.) breach of that duty of care, and
(3) resulting damage, injury or harm caused to the complainant attributable to the said breach of duty. However, a medical practitioner will be held liable for negligence only in circumstances when their conduct falls below the standards of a reasonably competent practitioner. It was further held that due to the unique circumstances and complications that arise in different individual cases, coupled with the constant advancement in the medical field and its practices, it is natural that there shall always be different opinions, including contesting views regarding the chosen line of treatment, or the course of action to be undertaken. In such circumstances, just because a doctor opts for a particular line of treatment but does not achieve the desired result, they CANNOT be held liable for negligence, provided that the said course of action undertaken was recognized as sound and relevant medical practice. This may include a procedure entailing a higher risk element as well, which was opted for after due consideration and deliberation by the doctor.
Therefore, a line of treatment undertaken should not be of a discarded or obsolete category in any circumstance. To hold a medical practitioner liable for negligence, a higher threshold limit must be met. This is to ensure that these doctors are focused on deciding the best course of treatment as per their assessment rather than being concerned about possible persecution or harassment that they may be subjected to in high-risk medical situations. Therefore, to safeguard these medical practitioners and to ensure that they are able to freely discharge their medical duty, a higher proof of burden must be fulfilled by the complainant. The complainant should be able to prove a breach of duty and the subsequent injury being attributable to the aforesaid breach as well, in order to hold a doctor liable for medical negligence. On the other hand, doctors need to establish that they had followed reasonable standards of medical practice. For details refer to the actual judgement from the Supreme Court site.