Special Leave Petition - Appellant - Moot Court Memorial

A.U.M.P.
NATIONAL MOOT COURT COMPETITION 2018
TEAM CODE: AMCC 13
IN THE HON’BLE SUPREME COURT OF REPUBLIC OF INDUS

SPECIAL LEAVE PETITION . NO. __ /_____
ON SUBMISSION TO THE HON’BLE SUPREME COURT OF REPUBLIC OF INDUS UNDER ART. 136 OF THE
CONSTITUTION OF INDUS
IN THE MATTER OF
MASAB KHAN ……………PETITIONER
VS.
STATE OF TROMBAY …………RESPONDENT
WRITTEN SUBMISSIONS FILED ON BEHALF OF RESPONDENTS
Counsel Appearing on Behalf of Petitioner /
A MEMORIAL ON BEHALF OF PETITIONER Page | I

A.U.M.P. NATIONAL MOOT COURT COMPETITION 2018
TABLE OF CONTENTS
ABBREVIATIONS .............................................................................................................................II
INDEX OF AUTHORITIES................................................................................................................III
STATEMENT OF JURISDICTION....................................................................................................VII
STATEMENT OF FACTS...............................................................................................................VIII
STATEMENT OF PLEADINGS..........................................................................................................XI
ARGUMENTS ADVANCED...........................................................................................................1-18
1. THE COURTS IN INDUS DO NOT HAVE JURISDICTION TO TRY PANJIKSISTAN NATIONAL
APPREHENDED FROM ITS TERRITORY.…………………………………………...……. 1-5
1.1 THE PANJIKSISTAN OCCUPIED PAMMU AND PASHMIR IS A TERRITORY OF

PANJIKSISTAN..............................................................................................................1-3
1.2 WRONGFUL ABDUCTION REQUIRES DIVESTMENT OF JURISDICTION..............................3-4
1.3 THE SPECIAL LEAVE PETITION FILED UNDER ART. 136 OF THE INDUS CONSTITUTION IS
MAINTAINABLE ……………………………………………………,…………… ….4-5
2. THE ARREST & DETENTION BY THE INDUS ARMY WAS ILLEGAL AND IT WILL VITIATE
SUBSEQUENT PROCEEDINGS.……………………………………………………….….5-10
2.1 ARREST MADE BY THE ARMY IS ILLEGAL…………………………………….………5-7

2.2 THE DETENTION MADE BY THE ARMY IS ILLEGAL…………………………..………8-10
3. THE CHARGE SHEET WAS NOT FILED WITHIN THE STATUTORY PERIOD OF 90 DAYS AND
HE IS ENTITLED TO BE ENLARGED ON BAIL ………………………………………….10-12
4. THE PETITIONER IS DEPRIVED OF HIS RIGHTS AND CONSIDERING THE CIRCUMSTANCES

HE WILL NOT GET FAIR TRIAL IN THE COURTS OF INDUS ………………………...…12-18
4.1 THERE WAS ADVERSE PUBLICITY IN THE MEDIA WHICH WILL CAUSE PREJUDICE HIS FAIR
TRIAL………………………………………………………………...……………12-13
4.2 COUNSEL FROM INDUS WILL SERIOUSLY PREJUDICE THE PETITIONER IN PREPARATION
OF HIS DEFENCE…………………………………………………………..……….14-16
4.3 THE PETITIONER WAS NOT GIVEN CONSULAR ACCESS, WHICH IS IN CONTRAVENTION OF
THE VIENNA CONVENTION ON CONSULAR RELATION, 1963………….…………..16-18
PRAYER..........................................................................................................................................19
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ABBREVIATIONS
S.NO ABBREVIATIONS FULL FORMS
1. Anr Another
2. Art. Article
3. Bom Bombay
4. Bom (Cr) Bombay Cases Reporter (Criminal)
5. BOMLR Bombay Law Review
6. MUM Mumbai
7. S./ § Section
8. CrLJ Criminal Law Journal
9. CrPC Criminal Procedure Code
10. DEL/DE Delhi
11. GUJ Gujarat
12. HC High Court
13. RAJ Rajasthan
14. CrPC Code of Criminal Procedure
15. IPC Indus Penal Code
16. UAPA Unlawful Activities Prevention Act
17. Mad Edition
18. Ed. Notes of Cases
19. MH Maharashtra
20. Ors Others
21. Ori/OCR Orissa
22. ROI Republic of Indus
23. POPP Pajkistan Occupied Pammu & Pashmir
24. SC Supreme Court
25. SCC Supreme Court Cases
26. SCR Supreme Court Reports
27. UOI Union Of India
28. v. Versus
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INDEX OF AUTHORITIES
LIST OF CASES CITED
S.No Name of the case & Citation Pg.No
1. Aslam Babalal Desai v. State of Maharashtra, AIR 1993 SC 1. 11
2. Bachan Singh v. State of Punjab, (1980) 2 SCC 684. 2
3. Bennett v. Horseferry Road Magistrates' Court, (1993) 3 All E.R. 138. 3
4. Chandi Prasad v. Bihar, AIR 1961 SC 1708. 5
5. Chorzow Factory case, (1927) PCIJ Series A, No 9 at p 21. 3
6. Stocke v. Germany (1991) 95 ILR 327. 3
7. Collr. Of Cus. v. Narayani Trading Concern (Pvt.) ltd., 1997 (89) ELT 668 17
Cal.
8. Connelly v. Director of Public Prosecutions, (1964) A.C. 1254. 3
9. Corfu Channel case, (1949) ICJ Rep 4. 3, 5
10. David Patrick Ward and Another v. Union of India and Others, (1992) 4
SCC 154. 16
11. Delia Saldias de Lopez v. Uruguay, CCPR/C/13/D/52/1979. 6
12. Francis Coralie Mullin v. Administrator, Union Territory of Delhi & Ors., 2
(1981) 1 SCC 608.
13. Greco-Bulgarian Communities, Advisory Opinion, 1930 P.C.I.J. (ser. B) 2
No. 17 (July 31).
14. Hussainara Khatoon v. Home Secretary, State of Bihar, AIR 1979 SC 11
1360.
15. I.R. Coelho (dead) By LRs. v. State of T.N., (2007) 2 SCC. 18
16. In re: P.C. Sen, AIR 1966 Cal 411. 13
17. Jadhav case India V. Pakistan 17
18. Jensen & Jenks (2010) 1 Harv NSJ 171. 3
19. Joginder Kumar v. State of U.P. and Ors, AIR 1994 SC 1349. 7
20. Lakhan Singh v. Balbir Singh, AIR 1953 All. 342 12
21. Lotus case, (1927) PCIJ Series A, No 10. 5
22. Maneka Gandhi v. Union of India, 1978 SCR (2) 621. 13
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23. Manohari v. State of Rajasthan, 1983 Cri LJ 1231 9

24. National Legal Services Authority v. Union of India, (2014) 5 SCC 438. 2
25. Paritam Singh v. Punjab, AIR 1950 SC 169. 4
26. Parry, (2005) 6 Melb JIL 516. 3
27. Rakesh Kumar Paul v. State of Assam, MANU/SCOR/28952/2017. 10
28. Ram Awadh v. State of U.P, 1999 Cri.L.J. 4083. 15
29. Ramdev Food Products Private v. State Of Gujarat, AIR 2015 SC 1742. 7
30. Ranchod Mathur Wasawa v. State of Gujarat, AIR 1974 SC 1143. 15
31. Ranjitsing Brahm Jeetsing Sharma v. State of Maharashtra, (2005) 5 SCC 12
294.
32. Regina v. Horseferry Road Magistrates’ Court, Ex Parte Bennett, [1993] 3 3
WLR 90.
33. Rudul Sah v. State of Bihar, 1983 Indlaw SC 231. 12
34. Sadat Case, (2005) 37 WRJIL 309. 3
35. Sahara v. S.E.B.I, Civil Appeal No. 9813 OF 2011. 13
36. State of Punjab v. Baldev Singh, AIR 1999 SC 2378. 18
37. State v. Ebrahim, 21 I.L.M. 888; 3
38. Suresh Jain v. State of Maharashtra, (2013) 3 SCC 77. 11
39. T.N.Godavarman Thirumulpad v. Union of India, (2012) 4 SCC 362. 17
40. The Chairman of Railway Board and Ors. v. Chandrima Das, AIR 2000 SC 8
988.
41. United States v. Toscanino, 500 F.2d 267 (1974). 3
42. United States v. Verdugo-Urquidez, 939 F.2d 1341 (1990) 3
43. Unni Krishanan v. State of Andhra Pradesh, AIR 1993 SC 2178. 18
44. Vellore Citizens Welfare Forum v. Union of India and Others, AIR 1996 2
SC 2715.
45. Vishaka & Ors. v. State of Rajasthan & Ors., (1997) 6 SCC 241 2
46. Zahira Habibullah Sheikh & Anr. v State of Gujrat, (2004) 4 SCC 158. 13
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CONSTITUTIONS
1. The Constitution of Indus, 1950.
2. The Constitution of Pammu and Pashmir, 1956.
3. The Constitution of India, 1950.
STATUTES
1. Armed Forces (Jammu and Kashmir) Special Powers Act, 1990, No. 21, Acts of Jammu &
Kashmir
2. Code of Criminal Procedure, 1973, No.2, Acts of Parliament, 1972 (India), § 167(2) a.
3. Passport (Entry into Indus) Act, 1920, No. 34, Act of Parliament, 1920 (India).
4. Prevention of Damage to Public Property Act, 1984, No. 3, Act of Parliament, 1984 (India).
5. Railways Act, 1989, No. 24, Act of Parliament, 1989 (India).
6. The Advocates Act, 1961, No. 25, Acts of Parliament, 1961 (India).
7. The Arms Act, 1959, No. 54, Act of Parliament, 1959 (India).
8. The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860 (India).
9. Unlawful Activities (Prevention) Act, 1967, No.37, Acts of Parliament, 1967 (India).
LAW COMMISSION REPORTS

1. Law Commission Report 177.
INTERNATIONAL AUTHORITIES
1. United Nations Charter.
2. Vienna Convention on the Law of Treaties
3. International Covenant on Civil and Political Rights.
4. Universal Declaration of Human Rights, 1948.
5. European Convention on Human Rights, 1953.
6. American Convention of Human Rights, 1969.
7. Vienna Convention on Consular Relations,1963.
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BOOKS REFERRED
1. Glanville Williams, Textbook of Criminal Law, (2nd Edition, 1999).
2. K.D. Gaur, A Textbook on the Indian Penal Code, (4th Edition, 2012.)
3. K.D. Gaur, Criminal Law: Cases and materials, (6th Edition, 2009).
4. Asim Pandya, Law of Bail: Practice and Procedure, (1st Edition, 2013).
5. Ratanlal & Dhirajlal’s, The Indian Penal Code, (35th Edition, 2017)
6. Ratanlal and Dhirajlal, The Law of Evidence, (24th Edition, 2011)
7. Sarkar S. C. & Prabhas C. Sarkar, Law Of Criminal Procedure, (8th Edition, 2004).
8. Sarkar SC, Code of Criminal Procedure Vol.1 & 2, (10th Edition, 2012).
9. Corpus Juris Secundum, Volume 8.
ARTICLES REFERRED
1. Gaibulloev, Khusrav, and Todd Sandler. “Determinants of the Demise of Terrorist
Organizations.” Southern Economic Journal, vol. 79, no. 4, 2013, pp. 774–792. JSTOR, JSTOR.
2. Abrahms, Max. “What Terrorists Really Want: Terrorist Motives and Counterterrorism
Strategy.” International Security, vol. 32, no. 4, 2008, pp. 78–105.
3. Malvina Halberstam, Terrorism, 9 Geo. Mason U. L. Rev. 12 (1986) .
4. Sundaresh Menon, International Terrorism and Human Rights, 4 AsianJIL 1 (2014).
5. Amos N. Guiora, Where Are Terrorists to Be Tried: A Comparative Analysis of Rights
Granted to Suspected Terrorists, 56 Cath. U. L. Rev. 805 (2007).
6. John Quigley, Government Vigilantes as Large: The Danger to Human Rights from
Kidnapping of Suspected Terrorists, 10 Hum. Rts. Q. 193 (1988).
7. Brian S. Carter-Stieglitz, Trying Terrorists, 34 Wm. Mitchell L. Rev. 5123 (2008).
ONLINE RESOURCES
1. HeinOnline, https://home.heinonline.org/ (last seen on August 25, 2018).
2. Lexis India, https://www.lexisnexis.com/in/legal/ (last seen on August 25, 2018).
3. Manupatra, http://www.manupatrafast.com (last seen on August 25, 2018).
4. SCC Online, http://www.scconline.com/ (last seen on August 25, 2018).
5. Westlaw India, http://www.westlawindia.com/ (last seen on August 25, 2018).
MEMORIAL ON BEHALF OF THE PETITIONER Page | VI

STATEMENT OF JURISDICTION
The petitioner herein is Mr. Masab Khan. Under Art. 136 of the Constitution of Indus,
1950, this Hon’ble Court has been vested, with the discretion, to 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 Indus. In this case, the petitioner has preferred an
appeal against the impugned orders of the Hon’ble High Court of Trombay.
The present memorandum sets forth the facts, contentions and arguments in the present case.
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STATEMENT OF FACTS
BACKGROUND
Indus, officially known as the Republic of Indus, is located in South Central Asia and
shares land borders with Panjiksistan to the West. Panjiksistan got separated from Indus in 1947
and since then relations between these two countries have been strained. In 1948, Panjiksistan
attacked Indus and occupied some part of the State of Pammu and Pashmir, which was an
integral part of Indus. Pakistan got defeated in its various misadventures towards Indus. It started
to establish launch pads to strike terror attacks in Indus and started harbouring and training
terrorists in the occupied territory of State of Pammu and Pashmir where they carry out terrorist
attacks and return to Panjiksistan in case they survive.
THE MASSACRE
On 23rd November 2015, twelve Lashkar-E-Khaiba terrorists trained by Panjiksistan

military and spy agency ISO (Inter-Services Operations) came to Trombay via sea and on 26th of
November attacked several important places killing more than 180 people including 20 police
officers and 4 commandos. 410 people were severely injured. In the counter-attack 5 out of 7
terrorists were killed and the remaining 2 escaped back to Panjiksistan. The terrorist attack was a
professional commando operation of Panjiksistan military. And also, after this incident, the state-
sponsored Panjiksistan trained terrorists started attacking Military installations and Units killing
soldiers.
THE SURGICAL STRIKE
On the ground of these increased attacks, the Indus government decided to destroy launch
pads and terrorist hideouts and training areas in Panjiksistan and Panjiksistan occupied Pammu
and Pashmir. So a surgical strike was carried out on 7th October 2016 in Panjiksistan occupied
Pammu and Pashmir and the launch pads and hideouts of the terrorists were destroyed. One
terrorist, Masab Khan, (hereinafter Petitioner) was apprehended by the Army in the surgical
strike who was in the custody of the Army for 30 days. During this period Army gathered vital
information as to who was the mastermind behind the attack and who provided training and
MEMORIAL ON BEHALF OF THE PETITIONER Page | VIII

financial support to them. The investigation also revealed that the apprehended terrorist was the
mastermind behind the attack on Indus on 26 November 2015. He also made a confessional
statement before the magistrate regarding this.
LOWER COURT PROCEEDINGS
After 30 days he was handed over to the Anti-Terrorism Squad (ATS) which is
specifically constituted to counter terrorism for further proceedings. The terrorist was into the
custody of ATS for 70 days. The accused moved to the Court of competent jurisdiction for grant
of bail u/s 167(2) of Cr.P.C which was rejected. After this, the magistrate committed the case to
Court of Session of Competent Jurisdiction where he was charged for various offences. All the
issues raised by him were rejected by the Court and he filed an appeal before the High Court of
Trombay challenging the dismissal of the contentions of the accused. This was dismissed by the
High Court.
SPECIAL LEAVE PETITION FILED BY PETITIONER IN SUPREME COURT
The petitioner has approached the Supreme Court of Indus through a Special Leave
Petition and has prayed for setting aside the judgment of Hon’ble High Court of Trombay and
that the Indus Courts do not have jurisdiction to try an individual apprehended from the
Panjiksistan territory and the actions taken by the Indus Army were illegal.
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STATEMENT OF ISSUES
I.
WHETHER THE COURTS IN INDUS HAVE JURISDICTION TO TRY PANJIKSISTAN NATIONAL

APPREHENDED FROM ITS TERRITORY?
II.
WHETHER THE ARREST & DETENTION BY THE INDUS ARMY WAS ILLEGAL WHICH WILL
VITIATE SUBSEQUENT PROCEEDINGS?
III.
WHETHER THE CHARGE SHEET WAS FILED WITHIN THE STATUTORY PERIOD OF 90 DAYS
AND HE IS ENTITLED TO BE ENLARGED ON BAIL ?
IV.
WHETHER THE PETITIONER IS DEPRIVED OF HIS RIGHTS AND CONSIDERING THE

CIRCUMSTANCES HE WILL NOT GET FAIR TRIAL IN THE COURTS OF INDUS?
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SUMMARY OF PLEADINGS
1. THE COURTS IN INDUS DO NOT HAVE JURISDICTION TO TRY PANJIKSISTAN NATIONAL

APPREHENDED FROM ITS TERRITORY.
The Courts of Indus do not have jurisdiction to try the Petitioner. This is so because the
Panjiksistan occupied Pammu and Pashmir is a territory of Panjiksistan. The act of apprehending
the Petitioner from the territory of Panjiksistan is in violation of International Law as Indus has
breached the territorial sovereignty of Panjiksistan and violated international law and the human
rights of the Petitioner. Such wrongful abduction requires divestment of jurisdiction. In case of
abducting individuals across international boundaries, abducting state has to release the
individual and refuse totally to exercise jurisdiction where individuals were brought before the
courts. And considering the circumstances of the case, there has been a gross injustice and
special leave petition will stand.
SUBSEQUENT PROCEEDINGS
The arrest and detention by the Indus Army are illegal as it was done violating the territorial
integrity of Panjiksistan and hence it will vitiate the subsequent proceedings. The surgical strike
performed by the Indus government with its military forces is in violation of the territorial
sovereignty of Panjiksistan and even if it is considered the Army was not given the power to
arrest and detain the Petitioner. And considering the divestment of jurisdiction, it is submitted
that the subsequent proceedings will be vitiated considering the illegality of arrest and detention
in the current situation.
3. THE CHARGE SHEET WAS NOT FILED WITHIN THE STATUTORY PERIOD OF 90 DAYS AND
HE IS ENTITLED TO BE ENLARGED ON BAIL .
The Petitioner was in the custody of the Army for 30 days from where he was handed over to
the Ant-Terrorism Squad (ATS) where he was in the custody for 70 days. Then he was produced
before the court where he applied for bail and after that, the matter was handed over to the crime
MEMORIAL ON BEHALF OF THE PETITIONER Page | XI

branch was further investigation. Then a petitioner applied for statutory bail as per the provisions
of Cr.P.C and UAPA.
4. THE PETITIONER IS DEPRIVED OF HIS RIGHTS AND CONSIDERING THE CIRCUMSTANCES

HE WILL NOT GET FAIR TRIAL IN THE COURTS OF INDUS
There was adverse publicity in the media which will cause prejudice his fair trial which will
influence the judges, lawyers and people of Indus and this will prejudice his fair trial. The Indus
counsel cannot represent the petitioner in his best interest and Indus has refused him to be
represented by a Panjiksistani counsel. The consular rights of the petitioner as per Vienna
Convention on Consular Rights, 1963 were deprived.
MEMORIAL ON BEHALF OF THE PETITIONER Page | XII

ARGUMENTS ADVANCED
1. THE COURTS IN INDUS DO NOT HAVE JURISDICTION TO TRY PANJIKSISTAN

NATIONAL APPREHENDED FROM ITS TERRITORY.
It is humbly submitted that the Courts in Indus do not have jurisdiction to try the
Petitioner. This is so because the Petitioner was a Panjiksistan national apprehended from
Pakistan occupied Pammu and Pashmir which is a territory of Indus and such act of
apprehending the Petitioner from the territory of Panjiksistan is a violation of International law
[1.1]. And such wrongful and illegal abduction requires divestment of jurisdiction. [1.2]. It is
further submitted the Special Leave Petition filed by the Petitioner is maintainable [1.3].
[1.1]. THE PANJIKSISTAN OCCUPIED PAMMU AND PASHMIR IS A TERRITORY OF PANJIKSISTAN.

1.1.1. Panjiksistan occupied some part of the State of Pammu and Pashmir in the year
1948. 1Since then PoPP has been a self-governing state under the control of Panjiksistan. It has
its own interim constitution.2 Section 7 of the interim constitution states about freedom of
association and 7(2) states that “No person or political party in Azad Jammu and Kashmir shall
be permitted to propagate against, or take part in activities prejudicial or detrimental to, the
ideology of the State’s accession to Pakistan.” Except in the legal sense, Azad Kashmir has been
fully integrated into Pakistan.3
1.1.2. Perception is a mode of acquiring territory. If a state exercises control and
establishes occupation over a particular territory for a long time and thus exercises de facto
jurisdiction over it, then the territory concerned becomes a part of that state. 4 Title by
prescription (i.e., acquisitive prescription) is the result of the peaceable exercise of de facto
sovereignty for a very long period over a territory subject to the sovereignty of another, and this
may be as the consequence of immemorial exercise of such sovereignty (i.e., for such period of
1
AUMP National Moot Court Competition, Moot Proposition, 2.
2
Sngadajk.Gok.Pk, (Aug. 25, 2018, 2:31 PM), http://sngadajk.gok.pk/uploadfiles/downloads/Constitution-Act-
1974.pdf.
3
Snedden Christopher, Kashmir-The Untold Story. 93, (2013); Second, Azad Kashmiris had always wanted to be
part of Pakistan nation.
4
Dr. S. K. Kapoor, Internation Law and Human Rights, 11th e.d, 2000.
MEMORIAL ON BEHALF OF THE PETITIONER Page | 1

time as in effect to extinguish memories of exercise of sovereignty by a predecessor) or as a

result of lengthy adverse possession only.5
1.1.3 A state may acquire some territory by prescription only when some conditions are
fulfilled. They are: (i) the possession must be peaceful (ii) the possession must be continuous (iii)
the possession must be for a long period of time. 6 In the current case, the possession of the PoPP
by Panjiksistan is peaceful and there are no protests of rebellion from the residents of the area.
The possession is continuous. The Panjiksistan occupied it in the year 1948 and the possession is
under it till now without any interruptions. The possession is going on from 1948 which makes it
70 long years. Therefore the third condition also satisfies.
1.1.4 The prominence of International law has been given in the Constitution of India
itself. Article 51 of the Indian Constitution talks about the promotion of international peace and
security. It states that the state shall endeavour to promote international peace and security; (b)
maintain just and honourable relations between nations; (c) foster respect for international law
and treaty obligations in the dealings of organised peoples with one another, and encourage
settlement of international disputes by arbitration. 7 In Greco-Bulgarian Communities case 8 it was
held that unless there is a conflict between International law and Municipal law, the municipal
law cannot prevail over International law. Even several Indian Judgments, when observed make
it clear that in the absence of any specific prohibition in municipal law, international law forms
part of Indian law and consequently must be read into or as part of our fundamental rights. 9 Once
these principles are accepted as part of the Customary International Law there would be no
difficulty in accepting them as part of the domestic law. 10
1.1.5 Therefore the de facto territory of PoPP becomes de jure possession as a perception
principle. Hence it is clear and apparent that PoPP is a territory of Panjiksistan and the Petitioner
5
Dr. S.K Kapoor, International Law and Human Rights, 7th E.d. 2017.
6
Id.
7
INDUS, Const. art. 51.
8
Greco-Bulgarian Communities, Advisory Opinion, 1930 P.C.I.J. (ser. B) No. 17 (July 31).
9
Bachan Singh v. State of Punjab, (1980) 2 SCC 684; Francis Coralie Mullin v. Administrator, Union Territory of
Delhi & Ors., (1981) 1 SCC 608; Vishaka & Ors. v. State of Rajasthan & Ors., (1997) 6 SCC 241 and National
Legal Services Authority v. Union of India, (2014) 5 SCC 438.
10
Vellore Citizens Welfare Forum v. Union of India and Others, AIR 1996 SC 2715.

has been apprehended from the territory of Panjiksistan. If there is no extradition of any kind –
informal or otherwise – but the suspect is simply seized by the agents of the receiving state in
absence of any legal process, then there is clearly a breach of international law. 11
Therefore the act of apprehending the Petitioner from the territory of Panjiksistan is in
violation of International Law as Indus has breached the territorial sovereignty and violated the
human rights of the Petitioner.12
[1.2.]. WRONGFUL ABDUCTION REQUIRES DIVESTMENT OF JURISDICTION
1.2.1 It has been established that abduction of a person from the territory of another State
is a violation of international law and hence an internationally wrongful act. 13 The first
obligation of a State responsible for the internationally wrongful act is to cease the wrongful act,
if it is continuing; and to offer appropriate assurances and guarantees of non-repetition. 14 After
that, the abducting State must make appropriate "reparation" to the offended State. 15 Reparation
may take the form of restitution, compensation and satisfaction, either singly or in combination. 16
The prosecution of accused in violation of international extradition treaties and fair trial
guarantees, particularly by means of transnational abduction, constitutes an abuse of power. 17 As
a result court adhering to this rationale have refused to exercise jurisdiction until proper
procedures are followed.18 The principle of Male captus bene detentus has been rejected by
various Courts.19
11
Opinion of the Inter-American Jurisdiction Committee on International Legality of SCOTUS case, 91-712 (1993)
CLF 119; Stocke v. Germany (1991) 95 ILR 327; Parry, (2005) 6 Melb JIL 516; Sadat Case, (2005) 37 WRJIL 309;
Jensen & Jenks (2010) 1 Harv NSJ 171.
12
Refer Issue 2.
13
Responsibility of States for Internationally Wrongful Acts 2001. art. 1.
14
Responsibility of States for Internationally Wrongful Acts 2001. art. 30.
15
Chorzow Factory case, (1927) PCIJ Series A, No 9 at p 21; Corfu Channel case, (1949) ICJ Rep 4.
16
Responsibility of States for Internationally Wrongful Acts 2001. art. 31, and also arts. 35 to 37,
17
Efthymios Papastavridis and Ilias Bantekas , International Law Concentrate, 2nd ed.
18
Regina v. Horseferry Road Magistrates’ Court, Ex Parte Bennett, [1993] 3 WLR 90.
19
State v. Ebrahim, 21 I.L.M. 888; United States v. Toscanino, 500 F.2d 267 (1974); United States v. Verdugo-
Urquidez, 939 F.2d 1341 (1990); Connelly v. Director of Public Prosecutions,(1964) A.C. 1254 ; Bennett v.
Horseferry Road Magistrates' Court, (1993) 3 All E.R. 138 .

1.2.2 Since an abducting State has a duty to return illegally abducted individuals to their
country of refuge or residence, courts of the abducting State must refrain from exercising
jurisdiction on the merits. Professor Daniel O'Connell20 maintains that, although in certain cases
courts of the abducting State have “asserted jurisdiction over a person irregularly seized in
foreign territory, the seizing State is in breach of international law in exercising its jurisdiction ...
and there is ground for asserting that, as a corollary, it owes a duty to the aggrieved State to
return the offender thereto”.21 Further, “in cases involving kidnapping of individuals across
international boundaries, the general state practice is either to release the individual ... or to
refuse totally to exercise jurisdiction where individuals were brought before the courts”. 22
1.2.3 It is a long-established legal principle that an illegal act does not give rise to any
right. Ex injuria jus non oritur. Since the act of abduction itself is illegal and invalid under
international law, the abducting State does not have a right to subject the abducted individual to
its laws and proceedings following such illegal abduction.
Therefore it is submitted that the Court in Indus did not have jurisdiction to try
Panjiksistan national apprehended from its territory.
[1.3]. THE SPECIAL LEAVE PETITION FILED UNDER ART. 136 OF THE INDUS CONSTITUTION IS
MAINTAINABLE
1.3.1 This Special Leave Petition is filed under article 136 of the constitution of Indus
against the final order of High Court of Trombay for dismissing the valid contentions of the
petitioner and also since the matter was not decided on merits.
1.3.2 It is submitted that the Special Leave Petition should be granted in when there are
special circumstances causing gross injustice to the party. The counsel relies on the ratio of
Paritam Singh v. Punjab23. While delivering the majority judgment Justice Fazl Ali, opined that the
20
I.A. Shearer, 'O'Connell, Daniel Patrick (1924–1979)', Australian Dictionary of Biography, National Centre of
Biography, Australian National University, (Aug. 26, 2018, 10.30 AM )http://adb.anu.edu.au/biography/oconnell-
daniel-patrick-11280/text20127, published first in hardcopy 2000,. Daniel Patrick O'Connell, RD, QC, FRHistS (7
July 1924 – 8 June 1979), known as D. P. O'Connell, was a barrister and academic, specializing in international law.
From 1972 to his death in 1979, he was Chichele Professor of Public International Law at the University of Oxford.
21
O' Connell, DP, International Law, 833 (2nd e.d. 1970)
22
Id.
23
Paritam Singh v. Punjab, AIR 1950 SC 169.

Court should grant special leave to appeal only in those cases where special circumstances
existed24. Justice S.K. Das opined that “It seems that article 136 may be involved only when (a)
Substantial or grave injustice has been done, or (b) Exceptional or special circumstances exist in
the case.” 25
1.3.3. In this case, the ATS has failed to submit charge sheet within the prescribed
statutory period will automatically give the right to the accused to release on default bail. Since
the same has not been provided by the lower courts and high court, aggrieved by the same,
petitioner is approaching this Hon’ble court under Article 136 of Indian Constitution. Hence by
observing this as the special circumstance and by considering that high court order is contrary to
the established principles of law, The accused has right to invoke his jurisdiction before this
court by virtue of Article 136 of Indus Constitution and this court also can admit the petition.
SUBSEQUENT PROCEEDINGS
The arrest and detention by the Indus Army are illegal as it was done violating the territorial
integrity of Panjiksistan [2.1] and hence it will vitiate the subsequent proceedings [2.2].
[2.1] ARREST MADE BY THE ARMY IS ILLEGAL
2.1.1 The concept of the territorial sovereignty of States is a long-standing and well-
established rule of customary international law reaffirmed by Article 2(4) of the Charter of the
United Nations.26 In The Lotus case27, the World Court declared that "the first and foremost
restriction imposed by international law upon a State is that - failing the existence of a
permissive rule to the contrary - it may not exercise its power in any form in the territory of
another State". The International Court of Justice, in the Corfu Channel case28, ruled that a
British minesweeping operation done within the Albanian territorial waters without its approval
24
Id.
25
Chandi Prasad v. Bihar, AIR 1961 SC 1708.
26
UN Charter, art. 12.
27
Lotus case, (1927) PCIJ Series A, No 10.
28
United Kingdom v. Albania, 15 XII 49

was a violation of Albanian sovereignty. Since in the current case the act of apprehending the
Petitioner who was a Panjiksistan national and was in the territory of Panjiksistan involved use
military power by Indus in the territory of Panjiksistan and infringes the territorial sovereignty of
it, there is no doubt that it is a clear violation of international law.
2.1.2 The forcible abduction carried out by Indus is a violation of international human
rights law. None of the international human rights declaration or conventions has yet stated this
proposition expressly. However, the Universal Declaration of Human Rights states that no one
shall be subjected to arbitrary arrest, detention or exile29. The International Covenant on Civil
and Political Rights 1966, solemnly provides in Article 9(1) that Everyone has the right to liberty
and security of person. No one shall be subjected to arbitrary arrest or detention. 30 The Human
Rights Committee did hold in Lopez’s case31 that abduction of an Uruguayan refugee from
Argentina by Uruguayan security and intelligence forces constituted a violation of Article 9 of
the Covenant. It followed, the Committee held, that the State was under an obligation to provide
effective remedies, including immediate release and permission to leave the country. 32
2.1.3 In addition to this the Army cannot arrest anyone without being empowered to do
so. If it is the Unlawful Activities Prevention Act, the officer of the Designated Authority
empowered to arrest should do so by the general or special order of the Central Government or
the State Government.33 And any officer arresting a person shall, as soon as may be, inform him
of the grounds for such arrest. 34 Every person arrested and article seized shall be forwarded
without unnecessary delay to the officer-in-charge of the nearest police station. 35 Here all these
conditions were not satisfied.
29
Universal Declaration of Human Rights, 1948. art. 9.
30
International Covenant on Civil and Political Rights, 1966. art. 9(1) & art. 9(4) [right to challenge lawfulness of
detention before a court].
31
Delia Saldias de Lopez v. Uruguay, CCPR/C/13/D/52/1979.
32
Views of Human Right Committee on Complaint of Lopez, 29 July 1981, 36 UN GAOR Supp (No 40) 176-84,
UN Doc A/36/40 (1981).
33
Unlawful Activities (Prevention) Act, 1967, No.37, Acts of Parliament, 1967 (India), § 43A.
34
Unlawful Activities (Prevention) Act, 1967, No.37, Acts of Parliament, 1967 (India), § 43B(1).
35
Unlawful Activities (Prevention) Act, 1967, No.37, Acts of Parliament, 1967 (India), § 43B(2).

2.1.3 Under the Armed Forces (Jammu And Kashmir) Special Powers Act, 1990, any
person arrested and taken into custody by the armed forces shall be made over to the officer-in-
charge of the nearest police station with the least possible delay, together with a report of the
circumstances occasioning the arrest. 36 Even this provision has not been followed by the Army in
the current case.
2.1.4 In the current case the Petitioner was arrested by the Army during the surgical
strikes without any reasonable suspicion. As per section 41(1)(a) of Cr.P.C 37 – “Any police
officer may without an order from a Magistrate and without a warrant, arrest any person- (a)
who has been concerned in any cognizable offence, or against whom a reasonable complaint has
been made, or credible information has been received, or a reasonable suspicion exists, of his
having been so concerned.” Even the law commission report of 177 has condemned this
arbitrariness given to police in arresting a person on reasonable suspicion. 38 The only reason for
arresting the petitioner, in this case, is to get the operational intelligence and also to prove to the
world that Panjiksistan was sponsoring terrorism from the soil under its control. However, there
wasn’t any “reasonable suspicion” against the petitioner.
2.1.5 It is submitted that merely on suspicion of complicity in an offence a person is not

liable to be arrested and constitutional rights of the person have to be protected. 39 It was also held
in Joginder Kumar v. State of U.P. and Ors40 that “No arrest can be made because it is lawful
for the Police Officer to do so”. Arrest and detention in police lock-up of a person can cause
incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a
routine manner on a mere allegation of commission of an offence made against a person.
Denying a person of his liberty is a serious matter. 41
Hence, based on the above observations we can say that the Arrest made by the army is
invalid, unlawful and unconstitutional.
36
Armed Forces (Jammu and Kashmir) Special Powers Act, 1990, No. 21, Acts of Jammu & Kashmir, 1990, § 4.
37
Code of Criminal Procedure, 1973, No.2, Acts of Parliament, 1972 (India), § 41(1)(a).
38
Law Commission Report 177.
39
Ramdev Food Products Private v. State Of Gujarat, AIR 2015 SC 1742.
40
Joginder Kumar v. State of U.P. and Ors, AIR 1994 SC 1349.
41
Id.

[2.2]. THE DETENTION MADE BY THE ARMY IS ILLEGAL
2.2.1 Section 8(b)(ii) of the Jammu and Kashmir Public Safety Act, 1978 states that the
Government may make an order to detain a person residing in the area of the state under the
occupation of Pakistan. In the current case, there was no order made by the Government to detain
the Petitioner.
2.2.2 It is submitted that Right to Liberty, Security and freedom from arbitrary detention
is an essential right to the accused. Article 3 of Universal Declaration of Human Rights 42 says
that everyone has the right to life, liberty and security of person. Article 9 states that no one shall
be subjected to arbitrary arrest, detention or exile.43 The UDHR along with ICCPR44 echoes the
fundamental rights to liberty, security and protection against arbitrary detention. By virtue of this
fundamental right, the state is placed under an obligation to protect and preserve the liberty and
the security of the citizens against arbitrary arrest and detention. In order for the detention to be
lawful and not arbitrary, it must be consistent with the substantive rules of national and
international laws as well as the principles and guidelines preserving fundamental rights.
2.2.3 It is submitted that the right to liberty and right against arbitrary detention is found in UN
Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment, particularly
in principle nos. 9, 12, 13 and 36 (2) and in rule 3 of United Nations Standard Minimum Rule for Non-
custodial measures45
2.2.4 Article 22 of the Indus Constitution is applicable to the Petitioner as well. 46

According to 22(1), no person who is arrested shall be detained in custody without being
informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to
consult, and to be defended by, a legal practitioner of his choice. 47 And according to article
42
43
44
International Covenant on Civil and Political Rights, 1966. art. 9.
45
UN General Assembly, Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment : resolution / adopted by the General Assembly, 9 December 1988, A/RES/43/173
46
The Chairman of Railway Board and Ors. v. Chandrima Das, AIR 2000 SC 988.
47
India, Const. art. 22 cl. (1).

22(2), every person arrested and detained in custody should be produced before the nearest
magistrate within the period of 24hrs of such arrest.48
2.2.5 In the current case the Petitioner was not informed of the grounds for his arrest and
also he wasn’t provided with a legal practitioner and was denied the right to consult. Also, he
wasn’t produced before the nearest magistrate within the period of 24 hours of his arrest. An
illegality once committed in the granting of remand will continue and that any subsequent order
of remand, though validly granted, will not wash out the said illegality with the result that
notwithstanding the existence of a valid order of remand at the time of deciding the application
for bail, the accused will be entitled to be released on bail on the basis of the earlier illegality. 49
2.2.6 There has been several incidents and cases where it has been proved how
inhumanly the Army treats the detenu in this nation. For instance, considering the death of
Undertrial prisoner Burman Moran in the custody of Army Personnel 50, Burman died, prima
facie, on account of torture subjected by the personnel of the 6 th Jat Regiment, 99 APO, Rupai.
In another instance, considering the loss of eyesight of a civilian due to beating by CRPF
Personnel51, One Chetan lost his eyesight and a few of the journalists too got injured due to
beating by a CRPF personnel belonging to 45 Batallion who was in an inebriated state. And in
another instance a person Tahir Hussain Peer lost his life due Tin of the negligence of the army
personnel, as admitted by the army itself.52
2.2.7 Therefore it is humbly submitted such harsh and violent treatment is being given by
the Indus Army. And based on this it can also be said that the confessional statement has been
forcefully taken under fear. The magistrate has also not cautioned as per the procedure he has to
follow while taking the confession.53
48
India, Const. art. 22 cl. (2).
49
Manohari v. State of Rajasthan, 1983 Cri LJ 1231
50
NHRC Case No. 158/3/2002-2003-CD.
51
NHRC Case No. 1555/19/8/07-08-PF.
52
NHRC Case No. 95/9/2003-2004-AF.
53
Code of Criminal Procedure, 1973, No.2, Acts of Parliament, 1972 (India), § 164; See also, Lokeman Shah And
Anr v. State Of West Bengal, 2001 C.Cr. LR (SC) 301.

Hence it is humbly submitted that the detention by the Army is illegal, unlawful and
Unconstitutional. And keeping in mind that he was abducted from the territory of the
Panjiksistan breaching the international law and the territorial sovereignty of Panjiksistan will
vitiate subsequent proceedings and the Courts in Indus have to divest the jurisdiction and the
country of Indus should return the accused to his own nation.
3. THE CHARGE SHEET WAS NOT FILED WITHIN THE STATUTORY PERIOD OF 90 DAYS AND HE IS
ENTITLED TO BE ENLARGED ON BAIL.
3.1 The custody with the Army is without authority of law. The petitioner submits that he
was in unlawful custody/illegal detention.54 The Petitioner was in the custody of the Army for 30
days from where he was handed over to the Ant-Terrorism Squad (ATS) where he was in the
custody for 70 days. After that, he was produced before the Court where he applied for bail. 55
Then this investigation of the full case was carried out in Indus. After First Information Report,
the matter was handed to crime branch for investigation even after the 70 days of him being in
the custody of the ATS.56 Later since the statutory period of 90 days of the arrest got completed
and no charge sheet was filed before the court of competent jurisdiction, the accused moved the
Court of competent jurisdiction for grant of bail under Sub-Section 2 of Sec 167 of Criminal
Procedure Code.57
3.2 According to Section 167(2) in The Code of Criminal Procedure, 1973 r.w Section
43d(2) of Unlawful Activities Prevention Act, 1967 the charge sheet shall be filled within
90days58. If the charge sheet has not been filled within the period of 90days it gives the right to
the petitioner to be enlarged on bail.59 The Petitioner can avail his liberty by filing an
application stating that the statutory period for filing the charge sheet has expired and the same
54
Refer issue 2.
55
56
57
Id.
58
Code of Criminal Procedure, 1973, No.2, Acts of Parliament, 1972 (India), § 167.
59
Rakesh Kumar Paul v. State of Assam, MANU/SCOR/28952/2017.

has not yet been filed.60
3.3 The accused being illegally abducted was not provided with a counsel of his choice
and also his consular rights were taken away. He has been subjected to torture and mental
trauma and in that course, the confessional statement was taken.
3.4 Therefore the Petitioner was in the custody of Army for 30 days, the custody of ATS
for 70 days and further custody of the number of days leading to expiry of the statutory period as
given under 167(2) of Cr.P.C. Since the charge sheet has not been filed within the statutory time
the Petitioner has to be granted bail. The lower Courts have erred in rejecting the bail to the
Petitioner since this right to be enlarged on bail when the statutory period expires is an
indefeasible right61
3.5 In Hussainara Khatoon v. Home Secretary, State of Bihar62, the Supreme Court
ordered the release of under trial prisoners whose period of incarceration had exceeded the
maximum period of imprisonment for their offences pointing towards the failure of Magistrates
to respect section 167 (2) Cr.P.C. r.w 43D(2) of UAPA which mandates for the release of the
undertrial prisoners on the expiry of 60- 90 days respectively. Justice Bhagwati on the issue of
the right of speedy trial observed that the under-trial prisoners languish in jail because they
were downtrodden and poor, and not because they are guilty. 63
3.6 The object of this provision manifests the legislative anxiety that once a person’s
liberty has been interfered with, the arrest made without a warrant or a court order, the
investigation must be conducted with utmost urgency. 64 Persons who are detained for
committing an offence and undergoing investigation are statutorily eligible for bail under Section
167(2) of Code after ninety days where the investigation relates to an offence punishable with
death, imprisonment for life or imprisonment for not less than ten years; and sixty days where
60
Id.
61
Suresh Jain v. State of Maharashtra, (2013) 3 SCC 77.
62
Hussainara Khatoon v. Home Secretary, State of Bihar, AIR 1979 SC 1360.
63
Id.
64
Aslam Babalal Desai v. State of Maharashtra, AIR 1993 SC 1.

the investigation is relating to any other offence, if the investigating authorities failed to
complete their investigation and file a charge-sheet within this period.65
Since the Petitioner has not been released on bail when it is required he has to be
compensated as well. Respect for the rights of individuals is the true bastion of democracy.
66
Therefore, the State must repair the damage done by its officers to the petitioner's rights. 67
4. THE PETITIONER IS DEPRIVED OF HIS RIGHTS AND CONSIDERING THE CIRCUMSTANCES HE

WILL NOT GET FAIR TRIAL IN THE COURTS OF INDUS
The petitioner has been deprived of his rights and considering the circumstances such as the
adverse publicity in the media [4.1]. the fact that he wasn’t provided with a counsel of his choice
and a counsel from Pankjisistan [4.2]. and that he was deprived of his consular rights [4.3].leads
to the conclusion that he will not get a fair trial in Indus.
[4.1] THERE WAS ADVERSE PUBLICITY IN THE MEDIA WHICH WILL CAUSE PREJUDICE HIS FAIR
TRIAL
4.1.1 It is submitted that sustained campaign of adverse publicity affects the rights of the
Petitioner as the judge; prosecutor and witnesses may get influenced. Also, emotional hostility
against the accused is generated by such actions. All this has affected the petitioner’s
presumption of innocence.68 Even the Supreme Court of India has recognized the presumption of
innocence as a human right in Ranjitsing Brahm Jeetsing Sharma v. State of Maharashtra 69
4.1.2 When the existence of that fact is in dispute in pending case and its existence is yet
to be determined, it is likely to prejudice a fair trial of the case when the assertion assumes the
shape of an opinion of persons unconnected with the case. 70 In this case, the media which is not
related to the case is forming and spreading false propaganda related to the Petitioner.
65
Id.
66
Rudul Sah v. State of Bihar, 1983 Indlaw SC 231.
67
Id.
68
International Covenant on Civil and Political Rights, 1966. art. 14(2); Universal Declaration of Human Rights,
1948. art. 10.
69
Ranjitsing Brahm Jeetsing Sharma v. State of Maharashtra, (2005) 5 SCC 294.
70
Lakhan Singh v. Balbir Singh, AIR 1953 All. 342 at p.343

4.1.3 In the Maneka Gandhi v Union of India71 the Supreme Court has held that an
accused or an undertrial prisoner has the Fundamental right to free and fair trial under Article 21
of the Constitution. In Zahira Habibullah Sheikh & Anr. v State of Gujrat 72 the Hon’ble Supreme
Court opined that fair trial is a trial in which any form of bias or prejudice for or against the
accused, the witnesses or the cause which is being tried is absent. This view was reiterated in Re
P.C Sen73 in which it was recognized that the real danger of prejudicial comment made in any
media of mass communication is that it might create an impression on the Judge’s mind or even
on the minds of the witnesses for the litigants. The infirmity of the judicial system lies in the fact
that judges too are human beings and undue influence of irresponsible comments or criticisms
may derogate the rational process of fair adjudication.74
4.1.4 It has been observed that “underlying our Constitutional system there are a number
of important values, all of which help to guarantee our liberties, but in ways which sometimes
conflict. Under our Constitution, probably, no values are absolute. All important values,
therefore, must be qualified and balanced against, other important, and often competing,
values… Consequently, free speech, in appropriate cases, has got to correlate with fair trial. It
also follows that inappropriate case one right, says freedom of expression, may have to yield to
the other right like the right to a fair trial.”75
Therefore adverse publicity in the media will seriously hinder the Petitioner’s rights and
his fundamental right to free and fair trial will be vitiated as people will form opinions about him
when his case is under trial, which might adversely affect the rights and interest of the petitioner.
This will have an impact not only on the Court but also the Counsel from Indus who is being
appointed by the state.
71
Maneka Gandhi v. Union of India, 1978 SCR (2) 621.
72
Zahira Habibullah Sheikh & Anr. v State of Gujrat, (2004) 4 SCC 158.
73
In re: P.C. Sen, AIR 1966 Cal 411.
74
Id.
75
Sahara v. S.E.B.I, Civil Appeal No. 9813 OF 2011.

[4.2] COUNSEL FROM INDUS WILL SERIOUSLY PREJUDICE THE PETITIONER IN PREPARATION OF
HIS DEFENCE
4.2.1 Article 3(b) of International Covenant on Civil And Political Rights says that In the
determination of any criminal charge against a person, he shall be entitled to communicate with
counsel of his own choosing76. Article 6(3) of European Convention on Human Rights states that
whoever is arrested everyone charged with a criminal offence has the right to defend himself in
person or through legal assistance of his own choosing.77 Article 9(29)(d) of the American
Convention on Human Rights gives the same right. 78 Similarly, Article 7(1)(c) of the African
Charter On Human And Peoples Rights provides: “Every individual shall have the right to have
his cause heard. This comprises: (c) the right to defence, including the right to be defended by
counsel of his choice”.79
4.2.2 Not only internationally, the right to free legal aid and the right to be defended by
one’s own counsel has been recognized by the Indus constitution and various legislations of
Indus also Right to free legal aid is an essential ingredient of due process that is implicit in the
guarantee of Article 21 of the Constitution.80 Art. 22(1) of the Constitution of India guarantees a
fundamental right that no persons shall be denied the right to consult and to be defended by, a
legal practitioner of his choice.81 In addition to this Artice 39-A of the Indus Constitution states
that
“39A. Equal justice and free legal aid The State shall secure that the operation of the
legal system promotes justice, on a basis of equal opportunity, and shall, in particular,
provide free legal aid, by suitable legislation or schemes or in any other way, to ensure
that opportunities for securing justice are not denied to any citizen by reason of economic
or other disabilities.”
76
International Covenant on Civil and Political Rights, 1966. art. 3 , Cl. b.
77
European Convention on Human Rights, 1953. art. 6 , Cl. 3
78
American Convention of Human Rights, 1969. art. 9 , Cl. 29(d)
79
Rachel Murrey, Decisions by the African Commission on individual Communications under the African Charter
on Human and Peoples’ Rights, 46 INT’L & COMP. L.Q 412, 429 (1997).
80
Indian Const. art. 21.
81
Indian Const.art. 22, cl. 1.

4.2.3. It is humbly submitted that Section 304, Cr.P.C. provides that wherein a trial
before the Court of Session, the Petitioner is not represented by a pleader, and where it appears
to the Court that the Petitioner has not sufficient means to engage a pleader, the Court shall
assign a pleader for his defence at the expense of the State. 82 In furtherance of this Article, the
Legal Services Authorities Act of 1987 has been enacted by the parliament.
4.2.4 When the law enjoins appointing a counsel to defend a Petitioner, it means an
effective counsel, a counsel in real sense who can safeguard the interest of the Petitioner in best
possible manner which is permissible under law. 83
4.2.5 It is humbly submitted that the Supreme Court has stated that particular attention
should be paid to appoint competent advocates, equal to handling the complex cases-not
patronizing gestures to raw entrants to the Bar. Sufficient time and complete, papers should also
be made available, so that the advocate chosen may serve the cause of justice with all the help at
his command.84
4.2.6 From the above authorities it can be said that the law in the Country wants those
who can represent the accused in his best interest has to represent him. But the position in the
country regarding the Petitioner is in such a way that all the false rumours and allegations against
him have been promoted by the adverse publicity and propaganda of the media. It has already
been stated how such media publicity would affect not only the common people but also the
judges of law. And if adverse media has such power and influence over people and also well-
trained judges it would be improper to say that it would not have any effect on the advocates in
the country. The advocate from the country of Indus will have been influenced by such adverse
publicity and also because of the fact that he is a citizen of Indus he will show a sense of
abhorrence towards the Petitioner.
82
Code of Criminal Procedure, 1973, No.2, Acts of Parliament, 1972 (India), § 304.
83
Ram Awadh v. State of U.P, 1999 Cri.L.J. 4083.
84
Ranchod Mathur Wasawa v. State of Gujarat, AIR 1974 SC 1143.

4.2.7 Section 32 of The Advocates Act invests discretionary power on Courts to permit
appearances in particular cases.85 According to that section the Court can permit any person, not
enrolled as an advocate under the Advocates Act, to appear before it in any particular case. 86
4.2.8 As seen in all the instances in this issues and previous issues, it can be observed that
there has been already a gross violation of his rights going on. He has been abducted illegally
from the territory of Panjiksistan and is being tried for the offences for which there is no proof of
him committing it. And for such a trial he cannot be defended by an Indus counsel. A counsel
from Panjiksistan has to be provided taking into consideration the extraordinary and exceptional
situation the Petitioner has been put into where his human rights are being violated and the
adverse media propaganda has created a fallacious image in the minds of the citizens of Indus.
So in the best interest of the Petitioner, a counsel from Panjiksistan has to be appointed to
him to help him prepare his defence.
[4.3] THE PETITIONER WAS NOT GIVEN CONSULAR ACCESS , WHICH IS IN CONTRAVENTION OF
THE VIENNA CONVENTION ON CONSULAR RELATION, 1963
4.3.1 Vienna Convention on Consular Relations, 1963 gives right to the petitioner to have
the freedom with respect to communication with and access to consular officers of Panjiksistan 87.
The consular officers of Panjiksistan have the right to visit the petitioner who has been detained
in the prisons of Indus and is custody or arrest, to converse and correspond with him and to
88
arrange for his legal representation. Article 73 of the Vienna Convention recognizes that
agreements between parties may supplement and amplify its provisions89. There are situations
where the Apex Court has given the Consular rights to a foreign accused. 90
85
The Advocates Act, 1961, No.25, Acts of Parliament, 1961(Indus), § 32.
86
Id.
87
Vienna Convention on Consular Relations, 1963. art. 36, Cl. b.
88
Vienna Convention on Consular Relations, 1963. art. 36, Cl. c.
89
Vienna Convention on Consular Relations, 1963. art. 73.
90
David Patrick Ward and Another v. Union of India and Others, (1992) 4 SCC 154.

4.3.2 It is humbly submitted that the Vienna Convention on Consular Relations was
ratified by India on 28th November 1977.91 Ratification means that the ratifying state agrees to be
committed to the terms of the treaty at inter-State level. It emphasizes, therefore, the State’s
consent be bound, as opposed to merely signing the treaty. 92 And also the treaties not contrary to
municipal law are deemed to be incorporated in the municipal law. 93 Nowhere in the
Conventions has it been expressly stated that the persons suspected of espionage or terrorism will
be excluded from its scope.94
4.3.3 It is submitted that as according to Article 26 and 27 of the VCLT, “Every treaty in
force is binding upon the parties to it and must be performed by them in good faith” 95. Under
this, it is a legal and fundamental duty of two or more states who have entered into a treaty to
abide by Pacta Sunt Servanda96. But, in the contrary Republic of Indus never followed the rules
mentioned Vienna convention on consular rights respectively.
4.3.4 In Jadhav case it was mentioned that “it appears that the rights invoked by India in
the present case on the basis of Article 36, paragraph 1, of the Vienna Convention are
plausible.” It was clear that the consular rights are not to be deprived. Regarding consular rights,
there were many authorities which restrain from depriving consular rights. 97
91
Treaties.un.org. (2018). UNTC . [26 Aug. 2018, 10:50AM]
https://treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg_no=iii 6&chapter=3&lang=en.
92
LLIas Bantekas & Efthymios Papastavridis,Concrete International Law, 35, 2nd e.d.
93
T.N.Godavarman Thirumulpad v. Union of India, (2012) 4 SCC 362.
94
International court of justice reports of judgments, advisory opinions and orders jadhav case (India V. Pakistan)
request for the indication of provisional measures order of 18 may 2017, [25 Aug. 2018, 11:50AM] https://www.icj-
cij.org/files/case-related/168/168-20170518-ord-01-00-en.pdf
95
Vienna Convention on the Law of Treaties, 1969. art’s. 26 & 27.
96
Mr. Narendra Kadoliya, A Paradigm Shift In The Role Of Domestic Courts In Implementing International Treaty
Provisions: An Indian Perspective, Manupatrafast.com. (2018). Manupatra Articles . [25 Aug. 2018, 11:50AM]
http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=29c6ccdf-f94e-42e5-
8bdd64f58d2a962c&txtsearch=Subject:%20Miscellaneous; Also see Dr. S. K. Kapoor, Internation Law and Human
Rights, 11th e.d. 2000; Also see case of Collr. Of Cus. v. Narayani Trading Concern (Pvt.) ltd., 1997 (89) ELT 668
Cal.
97
supra 88.

4.3.5 Therefore it can be said that the Vienna Convention on Consular Relations, 1963 is
binding and its provisions should be adhered to by the Indus and since it has not been done it is
submitted the act of denying the consular access is in contravention of Vienna Convention on
Consular Relations.
Therefore it is humbly submitted that the Petitioner is deprived of his Fundamental rights.
Art 21 is the heart of the fundamental rights.98 The fundamental rights are the heart and soul of
the Constitution. They occupy a unique place in the lives of civilized societies and are
transcendental, inalienable, and primordial.99 It is submitted that the conducting a fair trial for
those who are accused of criminal offenses is the cornerstone of democracy and is beneficial for
both the accused as well as the society. A conviction resulting from an unfair trial is contrary to
our concept of justice.100
98
Unni Krishanan v. State of Andhra Pradesh, AIR 1993 SC 2178.
99
I.R. Coelho (dead) By LRs. v. State of T.N., (2007) 2 SCC.
100
State of Punjab v. Baldev Singh, AIR 1999 SC 2378.

PRAYER
It is, therefore, most humbly prayed before this Hon’ble Apex Court to kindly allow SLP filed by
petitioner and may be pleased to adjudge and declare that:
1. The Courts of Indus do not have jurisdiction to try the petitioner.

2. The arrest and detention by the Indus Army is illegal and the petitioner needs to be
compensated.
3. The petitioner should be enlarged on bail as the statutory period has been met.
4. The actions of the respondents are Invalid & Unjustifiable under the law which are causing
prejudice and hardship to the petitioner.
5. The judgment of the High Court of Trombay is liable to be set aside.
And/or pass such other order in light of justice, equity and good Conscience which this Hon’ble
court may feel fit and proper in the circumstances of the case.
And for this act of kindness, the Petitioner duty bound shall forever pray.
All of which most humbly prayed.

S/d-
Counsels for Petitioner/-
1.
2.

Special Leave Petition - Appellant - Moot Court Memorial

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Special Leave Petition - Appellant - Moot Court Memorial

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A.U.M.P.

NATIONAL MOOT COURT COMPETITION 2018

TEAM CODE: AMCC 13

IN THE HON’BLE SUPREME COURT OF REPUBLIC OF INDUS

MASAB KHAN ……………PETITIONER

WRITTEN SUBMISSIONS FILED ON BEHALF OF RESPONDENTS

Counsel Appearing on Behalf of Petitioner /

A MEMORIAL ON BEHALF OF PETITIONER Page | I

1.1 THE PANJIKSISTAN OCCUPIED PAMMU AND PASHMIR IS A TERRITORY OF

2.1 ARREST MADE BY THE ARMY IS ILLEGAL…………………………………….………5-7

4. THE PETITIONER IS DEPRIVED OF HIS RIGHTS AND CONSIDERING THE CIRCUMSTANCES

MEMORIAL ON BEHALF OF THE PETITIONER Page | I

MEMORIAL ON BEHALF OF THE PETITIONER Page | II

MEMORIAL ON BEHALF OF THE PETITIONER Page | III

23. Manohari v. State of Rajasthan, 1983 Cri LJ 1231 9

MEMORIAL ON BEHALF OF THE PETITIONER Page | IV

LAW COMMISSION REPORTS

MEMORIAL ON BEHALF OF THE PETITIONER Page | V

MEMORIAL ON BEHALF OF THE PETITIONER Page | VI

MEMORIAL ON BEHALF OF THE PETITIONER Page | VII

On 23rd November 2015, twelve Lashkar-E-Khaiba terrorists trained by Panjiksistan

THE SURGICAL STRIKE

MEMORIAL ON BEHALF OF THE PETITIONER Page | VIII

LOWER COURT PROCEEDINGS

SPECIAL LEAVE PETITION FILED BY PETITIONER IN SUPREME COURT

MEMORIAL ON BEHALF OF THE PETITIONER Page | IX

WHETHER THE COURTS IN INDUS HAVE JURISDICTION TO TRY PANJIKSISTAN NATIONAL

WHETHER THE PETITIONER IS DEPRIVED OF HIS RIGHTS AND CONSIDERING THE

MEMORIAL ON BEHALF OF THE PETITIONER Page | X

1. THE COURTS IN INDUS DO NOT HAVE JURISDICTION TO TRY PANJIKSISTAN NATIONAL

MEMORIAL ON BEHALF OF THE PETITIONER Page | XI

4. THE PETITIONER IS DEPRIVED OF HIS RIGHTS AND CONSIDERING THE CIRCUMSTANCES

MEMORIAL ON BEHALF OF THE PETITIONER Page | XII

1. THE COURTS IN INDUS DO NOT HAVE JURISDICTION TO TRY PANJIKSISTAN

[1.1]. THE PANJIKSISTAN OCCUPIED PAMMU AND PASHMIR IS A TERRITORY OF PANJIKSISTAN.

MEMORIAL ON BEHALF OF THE PETITIONER Page | 1

time as in effect to extinguish memories of exercise of sovereignty by a predecessor) or as a

MEMORIAL ON BEHALF OF THE PETITIONER Page | 2

MEMORIAL ON BEHALF OF THE PETITIONER Page | 3

MEMORIAL ON BEHALF OF THE PETITIONER Page | 4

[2.1] ARREST MADE BY THE ARMY IS ILLEGAL

MEMORIAL ON BEHALF OF THE PETITIONER Page | 5

MEMORIAL ON BEHALF OF THE PETITIONER Page | 6

2.1.5 It is submitted that merely on suspicion of complicity in an offence a person is not

MEMORIAL ON BEHALF OF THE PETITIONER Page | 7

[2.2]. THE DETENTION MADE BY THE ARMY IS ILLEGAL

2.2.4 Article 22 of the Indus Constitution is applicable to the Petitioner as well. 46

MEMORIAL ON BEHALF OF THE PETITIONER Page | 8

MEMORIAL ON BEHALF OF THE PETITIONER Page | 9

MEMORIAL ON BEHALF OF THE PETITIONER Page | 10

has not yet been filed.60

MEMORIAL ON BEHALF OF THE PETITIONER Page | 11

4. THE PETITIONER IS DEPRIVED OF HIS RIGHTS AND CONSIDERING THE CIRCUMSTANCES HE

MEMORIAL ON BEHALF OF THE PETITIONER Page | 12

MEMORIAL ON BEHALF OF THE PETITIONER Page | 13

MEMORIAL ON BEHALF OF THE PETITIONER Page | 14

MEMORIAL ON BEHALF OF THE PETITIONER Page | 15

THE VIENNA CONVENTION ON CONSULAR RELATION, 1963

MEMORIAL ON BEHALF OF THE PETITIONER Page | 16

MEMORIAL ON BEHALF OF THE PETITIONER Page | 17

MEMORIAL ON BEHALF OF THE PETITIONER Page | 18

1. The Courts of Indus do not have jurisdiction to try the petitioner.

All of which most humbly prayed.