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2nd SIR SYED NATIONAL MOOT COURT COMPETETION, 2016-17

TEAM CODE: AM-08

BEFORE THE HONBLE SUPREME COURT OF EUPHORIA

[CRIMINAL APPELLATE JURISDICTION]

SPECIAL LEAVE PETITION (CRL.) NO. ____/2017

(UNDER ARTICLE 136 OF THE CONSTITUTION OF EUPHORIA)

DR. SAMEER & MARSIS RESEARCH ORGANISATION APPELLANT

VERSUS

UNION OF EUPHORIA RESPONDENT

MEMORIAL ON BEHALF OF THE APPELLANT

MEMORIAL ON BEHALF OF THE APPELLANT


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TABLE OF CONTENTS

TABLE OF CONTENTS...........................................................................................................2

LIST OF ABBREVIATIONS....................................................................................................3

INDEX OF AUTHORITIES

BOOKS AND GUIDELINES REFERRED.....................................................................4


STATUTES INVOLVED.................................................................................................5
LEGAL DATABASES.....................................................................................................5
TABLE OF CASES.........................................................................................................6

STATEMENT OF JURISDICTION..........................................................................................8

STATEMENT OF FACTS.........................................................................................................9

STATEMENT OF ISSUES......................................................................................................11

SUMMARY OF ARGUMENTS.............................................................................................12

ARGUMENTS ADVANCED
I. WHETHER THE HIGH COURT WAS ERRONEOUS IN UPHOLDING THE
CONVICTION OF DR. SAMEER? 14
II. WHETHER THE CONDUCT OF MRO WAS IN ACCORDANCE TO THE FOREIGN
CONTRIBUTION (REGULATIONS) ACT, 2010? 22
III. WHETHER THE FUNDAMENTAL RIGHTS OF MRO AND ITS TV CHANNEL AS
STATED WERE VIOLATED? 24

PRAYER..................................................................................................................................28

MEMORIAL ON BEHALF OF THE APPELLANT


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LIST OF ABBREVIATIONS

ABBREVIATION DEFINITION

Para

& And

AIR All India Reporter

Art. Article

FCRA Foreign Contribution Regulation Act

MRO Marsis Research Organisation

Honble Honorable

i.e. That is

Ltd. Limited

Ors. Others

u/s Under section

p. Page

A1 Accused 1

Pvt. Private

r/w Read with

SC Supreme Court

SCC Supreme Court Cases

Sec. Section

EPC Euphorian Penal Code

vs. Versus

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INDEX OF AUTHORITIES

BOOKS AND GUIDELINES REFERRED:

S. No. DESCRIPTION

Basu, D.D., Commentary on the Constitution of India, (Vol. 3) Lexis Nexis


1.
Butterworths Wadhwa Nagpur, 8th Edition 2011.
Jain, M.P., Indian Constitutional Law, (6th Ed, LexisNexis Butterworth Wadhwa,
2.
2010).
Singh, M.P., V.N. Shuklas Constitution of India, Eastern Book Company
3.
Lucknow, 12th Edition 2013.

4. Ratanlal & Dheerajlal, The Law of Evidence, Lexis Nexis, 25th Edition 2013

5. Pandey, J.N., Constitutional Law of India, Allahabad: Central Law Agency


(2001).

6. M.P. Jain and S.N. Jain, Principles of Administrative Law, Nagpur: Wadhwa and
Company (1999).

7. Helsbury Law of India, Volume 5(1), Criminal Law I, Lexis Nexis Butterworth

8. Helsbury Law of India, Volume 15, Evidence, Lexis Nexis Butterworth

9. Lal, Batuk, The Law of Evidence, Vol. 1 & 2, 6th Edition Reprint 2013, Orient
Publishing Company

10. Ratanlal & Dheerajlal, The Indian Penal Code, 34th Edition, Lexis Nexis

11. Smith & Horgan, Criminal Law, 13th Edition, Oxford University Press

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12. Mishra, S.N., The Indian Penal Code, 18th Edition, Central Law Publication

13. Baker, D.J., Textbook of Criminal Law, 3rd Edition, Sweet & Maxwell

STATUTE INVOLVED:

S. No. STATUTE/LEGISLATION

1. THE CONSTITUTION OF INDIA, 1950.

2. THE EXPLOSIVE SUBSTANCE ACT, 1908

3. THE UNLAWFUL ACTIVITIES (PREVENTION) ACT, 1967

4. THE FOREIGN CONTRIBUTION (REGULATION) ACT, 2010

5. THE CABLE TELEVISION NETWORKS (REGUATION) ACT, 1995

6. THE PASSPORTS ACT, 1967

7. THE INDIAN PENAL CODE, 1872

8. THE EVIDENCE ACT, 1872

LEGAL DATABASES:

S. No. LEGAL DATABASES

1. AIRWEBWORLD

2. CLAONLINE

3. JSTOR

4. MANUPATRA

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5. SCC ONLINE

6. WESTLAW

TABLE OF CASES:

S. CITATION OF THE PAGE No.


NAME OF THE CASE CITIED
No. CASE
Mousam Singha Roy and others v. State of
1. West Bengal 2003 (12) SCC 377 14

Sharad Birdhichand Sarda v. State of 14


2. 1984(4) SCC 116
Maharashtra

2015 SCC Online SC 15


3. Rajiv Singh v. State of Bihar
1336

4. Pakala Narayan Suram v. Emperor AIR 1939 PC 47 16

5. Husaniya v. Emperor AIR 1936 Lah 380 16

Usman Mohammad Hussain ... v. State Of 17


6. 1981 AIR 1062
Maharashtra

7. Jawahar Lal v. State of Madhya Pradesh AIR 2001 SC 2209 18

8. Mujeeb v. State of Kerala 2000 SCC (Cr.) 78 18

9. Saju v. State of Kerala AIR 2001 SC 175 19

Om Prakash etc. v. The State of Haryana & 19


10. 1979 Crl. L.J. SC 857
Another

11. P.K.Narayanan v. State of Kerala 1994(3) SC 850 19

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12. Lal Singh v. State of Gujrat AIR 2001 SC 746 19

13. Kashmira Singh v. State of U.P AIR 1952 SC 159 20

14. Habeeb Mohammad v. State of Hyderabad AIR 1954 SC 510 21

15. Data Xiva v. State AIR 1967 (Goa) 4 21

16. Shreya Singhal v. Union of India AIR 2015 SC 1523 24

17. Hamdard Dawakhana v. Union of India AIR 1960 SC 554 25

18. Rev. Stanislaus v. State of Madhya Pradesh AIR 1977 SC 908 26

19. Maneka Gandhi v. Union of India 1978 AIR 597 28

20. Romesh Thapar v. State of Madras AIR 1950 SC 124 25

Sakal Papers (P) Ltd., And others v. Union 25


21. 1962 AIR 305
of India, 1962 AIR 305

22. Chaplinsky v. New Hampshire (1942) 315 US 568 26

23. Arver v. US (1918) 245 US 366 27

24. Murdock v. Pennsylvania (1943) 319 US 105 27

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STATEMENT OF JURISDICTION

THE PRESENT CASE HAS BEEN FILED IN THE HONBLE SUPREME COURT OF
EUPHORIA UNDER ARTICLE 136 OF THE CONSTITUTION OF EUPHORIA, 1950.

It states: Special leave to appeal by the Supreme Court


(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of Euphoria

(2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the
Armed Forces

The present appeal had been filed by the appellant against the judgement of Honble High
Court.

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STATEMENT OF FACTS

1. Euphoria is the second largest country in terms of population located in the South
Asia with 14% of Marsi community. The laws of Euphoria are in pari-materia with
that of India.
2. Dr. Sameer belonging to minority Marsi community was a practicing doctor but he
left his practice and dedicated his life to the cause of preaching and propagation of
Marsi religion after getting highly inspired from African Marsi preacher. To do the
same, he established an organization called MRO in Heptanesia, the capital of
Euphoria. The main objective of this was to propagate the Marsi religion. The
organization also study the texts of other religions of the world and draw the
similarities and distinction between them. The MRO also launched its own TV
channel for the same purpose.
3. Dr. Sameer used to invite scholars of other religion to debate with him on his TV
channel. He generally outplays his opponents which resulted into his extreme
popularity. Referring to the book of the Marsis he used to say, Whoever kills a
person, it is as though he has killed all mankind. And whoever saves a life, it is as
though he has saved all mankind. By listening to him around 1 million people from
other religions converted to Marsi religion which made preachers of other religion to
envy him. The CDs and videos were being sold and then a charitable trust called
Marsis Research Organization Trust from its earning. The donation received by trust
were used in running schools and hospitals.
4. There was a terrorist attack in Kangala, a neighboring country, by a group of six
gunmen in a mall. After investigation it was found that one of the assailant shared
some videos of Dr. Sameers speeches on his facebook wall and said that he was
influenced by his teachings. As soon as the news surfaced, several countries of the
world including Euphoria banned MRO and his teaching TV channel. His passport
was also impounded.

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5. Meanwhile, a bomb blast took place at the entrance gate of the Central Railway
Station in Heptanesia. A terror outfit called Euphorian Revolutionaries claimed the
responsibility of blast by an email which on investigation was found to be sent from a
cyber caf located near MRO headquarter. A mobile phone with a sim card registered
in the name of Dr. Sameer was also found from blast site.
6. The investigation team conducted the raids at the MRO headquarter and recovered
RDX, detonators and other explosive substance. Some document their found revealed
that MRO has been receiving donations from various countries including Mankistan
which is believed to be sponsoring terrorism in Euphoria and some were in violation
of FCRA. Against Dr. Sameer for outraging the religious feelings by his lectures and
the working of MRO.
7. Dr. Sameer believed to be the mastermind of the attacks was arrested with two other
members of MRO, Nayyar and Tipu and the investigation was handed to NIA. Dr.
Sameer confessed his involvement in the bomb blast before the investigating agency
and was produced before Special NIA Court. The court on hearing arguments from
both sides and examining the evidence found all three accused guilty under sections
121, 121A, 120B r/w 302, 307, 325, 326 of EPC, sections 3, 4(a) (b) and 6 of
Explosive Substance Act and sentenced them to death.
8. An appeal went to High Court against the order. The Honble Court upheld the
conviction and death sentence to Dr. Sameer (A1), commuted death sentence of
Nayyar (A2) to life imprisonment while acquitted Tipu (A3) of all charges due to
insufficient evidences. The court observed that, although A1 was not directly
involved in the attack but he stood behind the plan from starting till end, and was the
architect without whom the plan could have never seen the daylight.

Against the said judgement of the High Court an appeal has been filed by Dr. Sameer before
this Honble Apex Court of Euphoria. Further, a writ petition was also filed by MRO against
the ban placed upon it and its TV channel by the Government of Euphoria contending that it
is the violation of Freedom of Speech & Expression, Personal Liberty, Freedom of Religion,
Freedom to Form Association guaranteed under the Euphorian Constitution.

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STATEMENT OF ISSUES

ISSUE 1: WHETHER THE HIGH COURT WAS ERRONEOUS IN

UPHOLDING THE CONVICTION OF DR. SAMEER?

ISSUE 2: WHETHER THE CONDUCT OF MRO WAS IN

ACCORDANCE TO THE FOREIGN CONTRIBUTION

(REGULATIONS) ACT, 2010?

ISSUE 3: WHETHER THE FUNDAMENTAL RIGHTS OF MRO

AND ITS TV CHANNEL AS STATED WERE VIOLATED?

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SUMMARY OF ARGUMENTS

1. WHETHER THE HIGH COURT WAS ERRONEOUS IN


UPHOLDING THE CONVICTION OF DR. SAMEER?

It is most humbly submitted before this Honble Court that the High Court was
erroneous in upholding the conviction of Dr. Sameer. Also in the present case the
circumstantial evidences are too vague creating very strong reasonable doubt in favor
of the accused. It is also submitted that there were no links between the Euphorian
Revolutionaries and Dr. Sameer and hence showing absence of any criminal
conspiracy or motive in which case the appellant shall only be answerable to the
explosives recovered from his premises and not for any terror act.

Henceforth, the counsel would like to humbly submits before the Honble Court that
the High Court was completely erroneous in upholding the conviction of the accused
(A1).

2. WHETHER THE CONDUCT OF MRO WAS IN ACCORDANCE


TO THE FOREIGN CONTRIBUTION (REGULATIONS) ACT,
2010?

Marsis Research Organisation was from its initial stage has just one main aim and
objective which is propagation of Marsi religion and the teachings of Holy Prophet.
The trust which was established by the sale of DVDs and CDs has founded schools
and hospitals. The money which was received by the trust was used for the same
purpose. The objective to spread a message of peace and humanity. There was no link
with any terrorist organization too. Everything was done in accordance to the laws
established by the Constitution of Euphoria and FCRA, 2010.

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Henceforth, the counsel humbly submits before the Honble Court that there was no
violation of any section of FCRA and its conduct was done under the laws mentioned.

3. WHETHER THE FUNDAMENTAL RIGHTS OF MRO AND ITS


TV CHANNEL AS STATED WERE VIOLATED?

The Fundamental Rights of MRO and its TV channel which are said to be violated are
Right freedom of Speech and Expression, persona liberty, freedom to form
association, freedom of religion. The restrictions imposed by the government as
arbitrary and does not stand on the ground of reasonableness. The propagation of
ones religion is granted under the Constitution of Euphoria and the grounds on which
restriction are imposed are immature.
Henceforth, the counsel would like to humbly submits before the Honble Court that
there is violation of fundamental rights as mentioned.

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ARGUMENTS ADVANCED

1. The High Court was erroneous in upholding the conviction of


Dr. Sameer.

The counsel, in the issue at hand, would carefully like to submit that in the present case at
hand the prosecution had completely failed to bring forth any substantial piece of evidences
and also the trial court and the High Court completely failed to appreciate the evidences
which were produced before it. In addition to that the High Court upheld the death penalty of
the appellant whereas acquitted one accused and lowered the punishment of another. The
impunged conviction was entirely based upon the ambiguous circumstantial evidences and
mere recovery of some explosive substances in the absence of evidences depicting any
conspiracy between the appellant and terrorist organisation and presence of motive on the
part of accused. And it has been said by the Hon'ble Supreme Court itself in the case titled
Mousam Singha Roy and others v. State of West Bengal1, held that: "It is also a settled
principle of criminal jurisprudence that the more serious the offence, the stricter the degree
of proof, since a higher degree of assurance is required to convict the accused." And under
these circumstances of unambiguity over the evidences the appellant was awarded he highest
degree of punishment which is the death penalty. It is strongly submitted that the trial court as
well as the High Court clearly failed to realise that in a case where the life and liberty of a
person is at stake there it would be highly unjust and detrimental to convict the accused with
death penalty in such a casual manner. This is clearly enshrined in the case of Sharad
Birdhichand Sarda v. State of Maharashtra 2 where it was held by this Hon'ble Supreme
Court that: "We can fully understand that though the case superficially viewed bears an ugly
look so as to prima facie shock the conscience of any court yet suspicion, however great it
may be, cannot take the place of legal proof. A moral conviction however strong or genuine

1
2003 (12) SCC 377
2
1984(4) SCC 116

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cannot amount to a legal conviction supportable in law. It must be recalled that the well
established rule of criminal justice is that "fouler the crime higher the proof". In the instant
case, the life and liberty of a subject was at stake. As the accused was given a capital
sentence, a very careful, cautious and meticulous approach was necessary to be made."

1.1. Circumstantial evidences are too vague.

The counsel humbly submits that basing a conviction merely on presumptions and
circumstantial evidences which clearly produces a reasonable doubt in relation to the
involvement of the accused with the terror plot would be grossly erroneous and would
substantially defeat the purpose of justice. While deciding upon the issue that whether an
accused can be convicted only on the basis of suspicion and circumstantial evidence without
any direct proof given by the prosecution, the Supreme Court in the case of Rajiv Singh vs.
State of Bihar3 it was held that it would be unjustified to convict an accused only on the
basis of suspicion and circumstantial evidence until and unless that evidences are
corroborative with direct proof given by the prosecution.

1.1.1. Whether the recovery of accuseds mobile phone suggestive of any


involvement of the accused in the alleged terror plot. It is submitted by the
counsel that the presence of accused's mobile phone at the site of blast was
just a mere co-incidence and the same has been explained earlier. The
appellant lost his mobile phone on the day he returned from Dukai near the
railway station and in support of his contention the railway ticket was
produced before the trial court. Always it has nowhere been proved that the
mobile phone was used in the said terror plot in any way. It was just present
there as the appellant had lost it somewhere in that vicinity. This strongly
rebut the argument that the appellant or his mobile phone was somewhere
involved in the bomb blast. Also if seen from a general parlance then any
reasonable man would never leave his cell phone duly registered on his name
at the crime scene and even if he does then it would have been recovered by

3
2015 SCC Online SC 1336

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him before triggering the blast. This clearly indicates that the appellant had no
idea with respect to the explosion that was going to happen at the railway
station later.

1.1.2. Email sent from the vicinity of accuseds office building is no evidence against
the accused. It is submitted that the findings that the email sent by the
perpetrators of the terrorist attacks from a cyber caf which was near the MRO
HQ building was a very baseless and amateur contention given by the
prosecution as it has no correlation with the accused or his organization. Any
person could have sent that email from the cyber caf and no evidences were
provided by the prosecution in support of its contention. The same has been
expressly provided u\s 88A of the Indian Evidence Act which reads as The
Court may presume that an electronic message, forwarded by the originator
through an electronic mail server to the addressee to whom the message
purports to be addressed corresponds with the message as fed into his
computer for transmission; but the court shall not make any presumption as to
the person by whom such message was sent.

1.1.3. Confession made before the investigating agency (NIA). It is expressly


provided under Section 25 of the Euphoria Evidence Act as No confession
made to a police officer, shall be proved as against a person accused of any
offence. Also it is a settled legal principle which has been time and again
reiterated by various courts4. Now the officials of the NIA who were
investigating the said case were working in the capacity of Police Officers as
is mentioned under Section 3(2) of NIA Act which says that, Subject to any
orders which the Central Government may make in this behalf, officers of the
Agency shall have throughout India in relation to the investigation of
Scheduled Offences and arrest of persons concerned in such offences, all the

4
Pakala Narayan Suram v Emperor, AIR 1939 PC 47; Husaniya v Emperor, AIR 1936 Lah 380

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powers, duties, privileges and liabilities which police officers have in


connection with the investigation of offences committed therein.

1.1.4. Whether the recovery of RDX and Detonators from the premises sufficient to convict
the accused for Heptenasia bombings. The counsel would like to submit on this
point that it would be very detrimental to the ends of justice to base a conviction
for alleged involvement in the terrorist act by relying substantially on the mere
recovery of RDX and detonators from the premises of a building owned by the
accused. Since the accused has a very vast array of operations where by his
networks and offices extending even abroad therefore it is not humanly possible
for him to keep an active supervision over all his premises. And even though he
may be held liable for the illegal substance recovered but then convicting the
accused for the offences which were neither plotted, committed, contemplated, or
executed by him in any way would be a serious miscarriage of justice and the trial
court and the high courts were highly erroneous while convicting the accused
under EPC and UAPA and sentencing him to death. It is strongly submitted that
there was no constructive possession of any explosives and A-1 was not having
any knowledge about it. As it was said in the case of Usman Mohammad
Hussain ... vs State Of Maharashtra5, the following observation has been made:
"In order to bring home the offence under section 5 of
the Explosive Substances Act, the prosecution has to prove: (i) that
the substance in question is explosive substance; (ii) that the accused makes or
knowingly has in his possession or under his control any explosive substance;
and (iii) that he does so under such circumstances as to give rise to a reasonable
suspicion that he is not doing so for a lawful object." Also, mere possession of
any explosive material is in no way indicative of the accused's involvement in the
terrorist act. And also the prosecution has completely failed to prove the same by
the means of any direct and conclusive evidences and is just relying upon some
circumstantial evidences which are very vague and clearly put on record to falsely

5
1981 AIR 1062, 1981 SCR (3) 68

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implicate the accused. Similar views were held in the case of State v. Salman
Khurshid Kori, 2011 that "Besides non-proof and determination of mental intent
of each accused to commit offences u/s 121/ 121A/ 122 IPC &
18 Unlawful Activities Act, again cannot hold group view that mere possession
of Explosive substances was intended to commit terrorist act or belongingness to
the accused persons of a terrorist group, organization." Also it must be kept in
mind that due to the increasing popularity of the appellant and his religion due to
his bona fide preaching many people from other religion were envying him and
wishing ill-will to him. And hence it is very much likely that in order to defame
and degrade his image and that of his faith and teaching, such persons may have
staged a conspiracy which resulted in the recovery of explosives from the
premises of MRO and the charges framed against the appellant.

1.2. Whether there were any links between the accused and the terrorist
organization Euphoria revolutionaries.

1.2.1. On the issue of criminal conspiracy, it is strongly submitted that the facts and
materials on record by no stretch of imagination indicate that there could be
any conscious culpability. In the case of Jawahar Lal v. State of Madhya
Pradesh6, it was held that in a case of circumstantial evidence, the chains of
circumstances must be firmly established and must have the tendency to
unerringly point out to the guilt of the accused. And also in the case of
Mujeeb v. State of Kerala 7, where any links in the chain is missing, the guilt
of the accused will not be established.. Although motive is not essential to be
brought on record for establishing the commission of an offence, but in a case
of conspiracy, motive is very material for the reason that it provides basis to
the accused persons for entering into a conspiracy. It is argued that in the
present case, the prosecution has no material to show any motive of the
appellant behind conducting the bomb blasts. And in the absence of any

6
AIR 2001 SC 2209
7
2000 SCC (Cr.) 78

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motive of the appellant and also absence of any material indicating


commonness of purpose with that of the terrorist organisation, there could be
no justification for any allegation of conspiracy. This was reiterated by the
Supreme Court in the case of Jawahar Lal v. State of Madhya Pradesh,
where the charge of conspiracy is not conclusively proved against the accused
they are entitled to acquittal from charges of criminal conspiracy and other
offences. Also there has been no proof in relation of any kind of contacts or
relationship between the appellant or his organization, i.e., MRO with the
terrorist group which planned and executed the bomb blasts. The existence of
a criminal conspiracy cannot be inferred on the basis of suspicions, surmises
or conjectures8 And where the evidence of witness and the confession of the
accused does not establish conspiracy, the fact that some explosive materials
were found with them will not sufficient to establish conspiracy to commit
terrorist offences9.

1.3. Whether the charges against the accused must only be framed under the
Explosives Substances Act.

1.3.1. In the light of the submissions kept before this court by the counsel, it is
clearly evident that the prosecution relies its contentions only upon the basis of
evidences which are purely circumstantial and creates a reasonable doubt with
respect to the charges framed against the accused u/s 21, 121A, 120B r/w 302,
307, 325, 326 of IPC and u/s 17, 18, 39, 40 of UAP Act. As it was held in the
case of State vs Salman Khurshid Kori etc. on 15 December, 2011 "1. Mere
possession of explosive substances cannot amount to cause threat the unity,
integrity, security or sovereignty of India or to strike terror in the people or
any section of the people in India...... 2. the conviction merely on the
indicative, to my view will lead miscarriage of justice as possession

8
Vijyan Vs. State of Kerala, Saju Vs. State of Kerala, AIR 2001 SC 175, Om Prakash etc. Vs. The State of
Haryana & Another, 1979 Crl. L.J. SC 857 and P.K.Narayanan Vs. State of Kerala, Crimes 1994(3) SC 850
9
Lal Singh vs State of Gujrat, AIR 2001 SC 746

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of explosive substances per se has been made punishable under section 5


of Explosive Substance Act. Besides, non-proof and determination of mental
intent of each accused to commit offences u/s 121/ 121A/ 122 IPC &
18 Unlawful Activities Act, again cannot hold group view that mere possession
of Explosive substances was intended to commit terrorist act or belongingness
to the accused persons of a terrorist group, organization." And hence the
counsel strongly submits that the accused must be tried only under the ESA.

1.4. Whether there exists any reasonable doubt in the favor of accused A1.

1.4.1. Here it is very humbly submitted that in absence of substantive evidences it


cannot be proved the accused had any links with the terrorist organisation
Euphoria Revolutionary and the conviction by trial court which was upheld by
the High Court was more based upon the pre-concieved notion of National
Security against the accused and less on the material evidences and proofs.
And thus it clearly create more than just reasonable doubt which shall be given
to the accused under all circumstances as it was held in the case of Kashmira
Singh v. State of U.P.10,, where it was observed : "The murder was a
particularly cruel and revolting one and for that reason it will be necessary to
examine the evidence with more than ordinary care lest the shocking nature of
the crime induce an instinctive reaction against a dispassionate judicial
scrutiny of the facts and law. In a case of this nature, the Court will move
cautiously in view of the grave nature of the offence. For the reasons
aforementioned, we are of the opinion that appellant is entitled to benefit of
doubt. The appeal is allowed. He is directed to be set at liberty unless wanted
in any other case."

1.4.2. Also in the present case at hand the appellant, in his preaching, always used to
spread the message of peace and harmony. Also he, through his trust, operates

10
AIR 1952 SC 159

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various charitable schools and hospitals which again indicate that he has a
reputed and unquestionable character. And hence the contention of the
appellant is being supported by Section 53 of the Indian Evidence Act which
includes good character of the accused person as a relevant factor in criminal
proceedings. The same was reiterated by the Supreme Court in the case of
Habeeb Mohammad v. State of Hyderabad11 that, in criminal proceedings,
a man`s character is often a matter of importance in explaining his conduct
and in judging his innocence or criminality. Now as it is clear from the above
submissions that the prosecution clearly failed to establish the criminal
conspiracy through the evidences n record thus creating a reasonable doubt
and hence in a situation where there is a reasonable doubt then good character
of the accused person shall be taken into account in his favor. Same was said
by the court in the case of Data Xiva v. State12 that, the evidence of good
character is important in weighing the evidence in doubtful cases.

Therefore, in the light of above arguments advanced the counsel would like to humbly submit
before the Honble Court that the High Court was erroneous in upholding the conviction of
the accused.

11
AIR 1954 SC 510
12
AIR 1967 (Goa) 4

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2. THE CONDUCT OF MRO WAS IN ACCORDANCE TO FOREIGN


CONTRIBUTION (REGULATIONS) ACT, 2010.

2.1 Foreign Contribution (Regulation) Act, 2010 is an act to consolidate the law to
regulate the acceptance and utilization of foreign contribution or foreign
hospitality by certain individuals or associations or companies and to prohibit
acceptance and utilization of foreign contribution or foreign hospitality for any
activities detrimental to the national interest and for matters connected therewith
or incidental thereto.
2.2 MRO is an association as defined in Sec. 2(1)(a) and Dr. Sameer as a person
defined in Sec. 2(1)(m) of FCRA, 2010 is also an association. Dr. Sameer has
founded an organization to propagate the teachings of Marsi Religion and from
the earnings of his mode of propagation he established a Marsis Research
Organisation Trust and donations from them were to be used in running schools
and hospitals13. It does not violate Sec. 8(1)(a) of FCRA which states that:
Every person, who is registered and granted a certificate or given prior
permission under this Act and receives any foreign contribution- (a) shall utilize
such contribution for the purposes for which the contribution has been
received: Provided that any foreign contribution or any income arising out of it
shall not be used for speculative business: Provided further that the Central
Government shall, by rules, specify the activities or business which shall be
construed as speculative business for the purpose of this section. The donations
were strictly used for schools and hospitals and was not used for any other
purpose.
2.3 The main aim was to propagate the Marsi religion and there was no malice
intention behind such propagation. MRO is not indulged in religion conversion
activity too. MRO only preach communal harmony and remove misconceptions
about Marsi. If an organization is receiving donation from the neighboring country

13
Moot Problem, Pg. 1 4

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which is believed to be terrorist sponsored does not mean it is actually


sponsoring terrorism in Euphoria.

Therefore, the council humbly submits before the Honble Court that there is no violation of
FCRA, 2010.

MEMORIAL ON BEHALF OF THE APPELLANT


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2nd SIR SYED NATIONAL MOOT COURT COMPETETION, 2016-17

3. THE FUNDAMENTAL RIGHTS OF MRO AND TV CHANNEL


WERE VIOLATED.

3.1 THE RIGHT TO FREEDOM OF SPEECH AND EXPRESSION IS


VIOLATED

Article 19 (1) (a) of the Constitution of Euphoria which deals with Protection of
certain rights regarding freedom of speech states All citizens shall have right to
freedom of speech and expression. Under Art. 19(2), reasonable restriction can
be imposed on the exercise of this right for certain purposes. It states Nothing in
sub-clause (a) of clause (1) shall affect the operation of any existing law, or
prevent the State from making any law, in so far as such law imposes reasonable
restrictions on the exercise of the right conferred by the said sub-clause in the
interest of [the sovereignty and integrity of Euphoria,] the security of State,
friendly relations with Foreign States, public order, decency, or morality or in
relation to contempt of court, defamation or incitement to offence. In one of the
most famous case Shreya Singhal vs. Union of India14, it was held by the
Honble Apex Court that "The constitutional guarantees of free speech and free
press do not permit a State to forbid or proscribe advocacy of the use of force or
of law violation except where such advocacy is directed to inciting or producing
imminent lawless action and is likely to incite or produce such action."

3.1.1 Any limitation on the exercise of the right under Art. 19(1)(a) not falling
within the corners of Art. 19(2) cannot be valid. The freedom of speech

14
AIR 2015 SC 1523

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2nd SIR SYED NATIONAL MOOT COURT COMPETETION, 2016-17

under Art. 19(1)(a) includes the right to express ones view and opinions at
any issue through any medium, e.g., by words of mouth, writing, printing,
picture, film, movie, etc. It thus includes the freedom of communication
and the right to propagate or publish opinion.

3.1.2 Dr. Sameer left his medical practice to propagate his Marsi religion
following the path of peace and prosperity. His TV channel and
organization all were aiming to propagate the teachings of Marsi religion.
His popularity amongst peoples of several community including non-Marsi
is the proof of his benevolence nature. The debate organized on his TV
channel was to spread message of peace as he quoted from his Holy Book:
Whoever kills a person, it is as though he has killed all mankind. And
whoever saves a life, it is as though he has saved all mankind. The
donations received by the trust were used in running schools and hospitals
which states lack of any malice intention.

3.1.3 Honble Apex Court in one of the case 15 held that the freedom of speech
and expression includes freedom of propagation of ideas and that this
freedom is ensured by the freedom of circulation. And further, in one more
case16 it was afterward held that for the purpose of propagating his ideas,
every citizen has right to publish them, to disseminate them and to
circulate them. The propagation of ideas of Marsi religion is a form of
advertisement but is not a commercial activity as pointed out in the case of
Hamdard Dawakhana v. Union of India17 . In this case it was held that
advertisement being a commercial activity does not fall under freedom of
speech and expression. These guidelines do not seem fit in this case as the
objective of Dr. Sameer was to spread the idea of Marsism. So by banning
MRO and TV channel, right to freedom of speech and expression is
violated.

15
Romesh Thapar v. State of Madras, AIR 1950 SC 124
16
Sakal Papers (P) Ltd., And others v. Union of India, 1962 AIR 305, 1962 SCR (3) 842
17
AIR 1960 SC 554: (1960 Cri LJ 735)

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3.2 THE RIGHT TO FREEDOM TO FORM ASSOCIATION IS VIOLATED

3.2.1 Article 19 (1) (c) of the Constitution of Euphoria states: All the citizens
18
have the right to form associations or unions [or co-operative
societies]but under certain rules and regulations which are defined in
clause 4 of Art. 19. Article 19 (4) states Nothing in sub-clause (c) of the
said clause shall affect the operation of any existing law in so far as it
imposes, or prevent the State from making any law imposing, in the
interest of [the sovereignty and integrity of Euphoria or] public order or
morality, reasonable restrictions on the exercise of the right conferred by
the said sub-clause.
3.2.2 The state has power to impose restrictions on the above grounds listed. But
in this present case scenario, the ban imposed has no ground and validity
in the name of public order, morality, integrity of Euphoria, etc. The
organization was also not involved in any of inhuman activities. The
decision of the government was unreasonable and arbitrary. So by banning
the MRO and TV channel, right to freedom to form association was
violated.

3.3 THE RIGHT TO FREEDOM OF RELIGION IS VIOLATED

3.3.1 Article 25 of the Constitution of Euphoria deals with the Freedom of


conscience and free profession, practice and propagation of religion. It
further states Subject to public order, morality and health and to the
provisions of this Part, all persons are equally entitled to freedom of
conscience and the right freely to profess, practice and propagate
religion.

18
Ins. By the Constitution (Eighty-first Amendment) Act, 2000, sec. 2 (w.e.f. 9-6-2000)

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2nd SIR SYED NATIONAL MOOT COURT COMPETETION, 2016-17

3.3.2 Dr. Sameers main aim was to spread the teachings and ideas of Holy
Prophet and propagate Marsi religion. He and his organization was not
involved in any kind of ill means aiming to convert peoples religion by
any irregular activity. This was stated in one of the Supreme Court
judgement in Rev. Stanislaus v. State of Madhya Pradesh 19 [referring to
the word propagate in Art. 25(1)], what Art. 25(1) grants is not the right
to convert another person to ones own religion but to transmit or spread
ones religion by an exposition of its tenets. In this case Supreme Court
upheld the act prohibiting conversion of a person by force, fraud or
allurement. The Honble Court emphasized that the word propagate
means to transmit or spread ones religion by an exposition of tenets. So,
Dr. Sameer was doing his propagation in the ambit of the guidelines stated
by the Honble Court. In global context also, it was held by the Supreme
Court Of United States of America that if such propagation does not
transgress the limits imposed by the law for the preservation of public
order20, safety21 and morals, the state cannot wholly deny the right to
preach religion views or otherwise 22.

3.4 THE RIGHT TO PERSONAL LIBERTY IS VIOLATED

3.4.1 Article 21 deals with the Protection of Life and Personal Liberty. It states
that: No person shall be deprived or his life or personal liberty except
according to procedure established by law.

3.4.2 Dr. Sameer established organization to propagate the teachings of Holy


Prophet and make the world better place to live. But some unwilling
circumstances imposed restriction on Dr. Sameer which violates his right
to personal liberty. After there was news that one of the assailant has

19
AIR 1977 SC 908: (1977) 1 SCC 677
20
Chaplinsky v. New Hampshire, (1942) 315 US 568
21
Arver v. US, (1918) 245 US 366
22
Murdock v. Pennsylvania, (1943) 319 US 105

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2nd SIR SYED NATIONAL MOOT COURT COMPETETION, 2016-17

shared the speech of Dr. Sameer on his facebook wall then immediately
his passport was impounded. He was not given even one chance to be
heard. There is violation of the Principle of Natural Justice i.e. The
Audi Alteram Partem rule. In one of the famous case Maneka Gandhi
v. Union of India23, Honble Supreme Court held that Section 10(3)(c) of
the Passports Act confers vague and undefined power on the passport
authorities, it is violative of Article 14 of the Constitution since it doesnt
provide for an opportunity for the aggrieved party to be heard. It was also
held to violate of Article 21 since it does not affirm to the word
procedure as mentioned in the clause, and the present procedure
performed was the worst possible one.

23
1978 AIR 597

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2nd SIR SYED NATIONAL MOOT COURT COMPETETION, 2016-17

PRAYER

In light of the issues raised, arguments advanced, reasons given and authorities cited it is
most humbly and respectfully requested that this Hon'ble Court may be graciously pleased to:

I. Set aside and reverse the judgement of the Honble High Court and
acquit the appellant from all the charges.

II. Lift the ban imposed on MRO and its TV channel by quashing the
executive order of the Central Government affecting the said ban.

AND/OR

Pass any other Order, Direction, or Relief that it may deem fit in the Best Interests of Justice,
Fairness, Equity and Good Conscience.
For this Act of Kindness, the Appellant as in duty bound, shall forever pray.

The Appellant
...................................

(COUNSEL FOR THE APPELLANT)

PLACE: _____________.
DATE: ___/___/_______.

MEMORIAL ON BEHALF OF THE APPELLANT


PAGE NO. 29