296A

INDUCTION AND RANKING MOOT COURT COMPETITION, SPRING 2021

JINDAL GLOBAL LAW SCHOOL

Before the Honorable Supreme Court of India

THE LEGAL REPRESENTATIVES OF MR. SANDIPAN ROY AND ORS.

PETITIONERS

V.

YESLA LIMITED AND STATE OF LAGRIMA

RESPONDENTS

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 MEMORIAL FOR PETITIONER
TABLE OF CONTENTS

STATEMENT OF RELEVANT FACTS……………………………………………………III

STATEMENT OF JURISDICTION………………………………………………………….V

QUESTIONS PRESENTED……………………………………………………………........VI

SUMMARY OF ARGUMENTS……………………………………………………………VII

ARGUMENTS ADVANCED……………………………………………………………....…1

I) MDBA, 2020 and KDCO, 2020 are unconstitutional on the ground of subject-
matter competence its provisions are repugnant to the existing laws of the country ...1

1. Tortious liability may be adjudicated on under Article 226.…….................…1

2. Compensation is a relief under Article 226 ………………………….……...2
3. Remedies under Article 226 are available against private parties………...…3

II) Both MDBA, 2020 and KDCO, 2020 are void for being repugnant with an act
of parliament (i.e., NDPS act, 1985) and subsequently for not receiving the president
assent, according to the Article 254……………………………………….………....4

1. Yesla owes a duty of care to the Petitioners ……………….......…………....4

2. Yesla breached its duty of care ……………………….…………………….5
3. There is a causal link between Yesla’s actions, and the damages suffered by
the Petitioners…………………………………………..…………………...6

III) The Governor of Karnataka was not constitutionally competent to promulgate

and re-promulgate KDCO, 2020.…………………………………………………….7
1. The knowledge was not complete ………...………………..….……….……7
2. There was no voluntary assumption of danger ….…………………...…...….8
PRAYER…………………………………….…………………………………….………...11

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 STATEMENT OF RELEVANT FACTS

I.

“Poison Ivy” is a psychedelic/psychotropic drug taken amongst the youth predominantly in

the states of Maharashtra and Karnataka. The drug is made from a mixture of “Bicardium”
and “Miracule”. The latter is grown and cultivated in the regions of South and South-East
Asia along with South America. However, Plantations have also been established in parts of
southern Maharashtra and Karnataka. There have been over 400 cases of substance abuse
involving Poison Ivy. It has been noted that the same has led to dementia, hallucinations and
could also lead to psychotic disorders and damage the heart and kidneys.

II.

On 20th March 2020 the defendant Hank, was admitted with a severe case of hallucinations
and dementia, owing to Poison Ivy. On 3rd July, 2020 100 kilograms of the drug was
confiscated by the Mumbai Police in a raid conducted owing to rising numbers of Poison Ivy
cases. The police arrested Mr. Dang, who owned the property, along with two truck drivers
who were transporting the substance from the port.

III.

On 17th November 2020 the Maharashtra government passed the Maharashtra Drugs (Poison
Ivy) Ban Act, 2020 [Herein after referred to as MDBA, 2020] in accordance with List II of
the Seventh Schedule. Owing to the Covid-19 outbreak, the Karnataka state legislature failed
to meet for their winter session. Thereafter, on 1st December 2020 the governor of Karnataka
in accordance with Article 213 of the Constitution, promulgated the Karnataka Drug Control
(Poison Ivy) Ordinance, 2020 [Herein after referred to as KDCO, 2020.].

IV.

A special winter session was held from 15th January 2021 to 19th February 2021, wherein
due to backlog and walkouts the KDCO, 2020 was not brought up. Thereafter, subject to
increasing number of cases involving Poison Ivy, the Act was re-promulgated by the
governor.

V.

The defendants were charged under the MDBA, 2020, Narcotic Drugs and Psychotropic
Substances Act, 1985 [Herein after referred to as NDPSA, 985] and Indian Penal Code, 1860
[Herein after referred to as IPC, 1860] before the Mumbai City Civil and Session Court. The

3
defendants [present petitioners] and ors, thereafter have filed this petition before the Supreme
Court.

4
 STATEMENT OF JURISDICTION

5
Legal representatives of Mr. Sandipan Roy and the other victims of the accident petitioned

the High Court of Lagrima under Article 226 of the Constitution of Lagrima, impleading

Yesla Limited and the State of Lagrima as Respondents.

QUESTIONS PRESENTED

The questions presented, in the honorable High Court, are as follow:

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 I) Whether the MDBA, 2020 and KDCO, 2020 are unconstitutional on the

grounds of subject-matter incompetence and whether its provisions are repugnant to the

existing laws of the country?

II) Whether Section 5 of both, MDBA, 2020 & KDCO, 2020 and Sections 6 of

MDBA, 2020 violate basic fundamental rights guaranteed under the Constitution?

III) Whether the Governor of Karnataka was constitutionally competent to

promulgate and re-promulgate KDCO, 2020?

SUMMARY OF ARGUMENTS

1. MDBA, 2020 and KDCO, 2020 are unconstitutional on the ground of subject-matter

competence its provisions are repugnant to the existing laws of the country.

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2. Both MDBA, 2020 and KDCO, 2020 are void for being repugnant with an act of

parliament (i.e., NDPS act, 1985) and subsequently for not receiving the president

assent, according to the Article 254.

3. The Governor of Karnataka was not constitutionally competent to promulgate and

re-promulgate KDCO, 2020.

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 ARGUMENTS ADVANCED

I. MDBA, 2020 and KDCO (PUT FULL FORM OF THE ACT), 2020 are

unconstitutional on the ground of subject-matter competence its provisions are

repugnant to the existing laws of the country.

Power to make any laws with respect to “Drugs” is provided under Entry 19, List III of

the Seventh Schedule of the Constitution of India.1 List III is a concurrent list which

empowers both the Union and a State to formulate laws falling under its domain. Under Entry

19 of list III, the Parliament has enacted NDPS Act, 1985 2, which makes it an exhaustive

domain of the center to enact laws in relation to any Narcotic or Psychotropic substances

other than few specified exceptions provided in the Seventh schedule and NDPS act3 itself.

The application of the doctrine of Pith and Substance makes it clear that MDBA, 2020

and KDCO, 2020 fall under List III i.e., concurrent list. Doctrine of Pith and Substance states

that “Where the question arises of determining whether a particular law relates to a

particular subject mentioned in one list or another, the court looks to the substance of the

matter.”4 In the present case, the matter pertains to the usage of the drug, which clearly

comes under Entry 19 of List III.

1) Maharashtra and Karnataka do not have subject-matter competence to enact

MDBA and KDCO under List II.

As, it has already been substantiated that pith and substance of MDBA and KDCO, falls

under List III. Merely the fact, that they are incidentally encroaching the other list, does not

make it invalid.5 In fact, in the present case, there is not even an incidental encroachment

under Entry 1, List II. Public order is what the French call “Order publique” and is something

1
Entry 19
2
3

4
Prafulla Kumar Mukherjee v. The Bank of Commerce Ltd, Khulna, AIR 1947 PC 60.
5
Prafulla Kumar Mukherjee v. The Bank of Commerce Ltd, Khulna, AIR 1947 PC 60.

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more than maintenance of law and order. The test to be applied in determining whether the

act affects law and order, or public order is: ‘Does it lead to disturbance of the current life of

the community so as to amount to disturbance of the public order or does it affect merely an

individual leaving the tranquility of society undisturbed’.6

In the present case, the administration of the drugs was an individual choice, and

community at large is not affected to an extent for it to come under “public order”. The

distinction between “law and order” and “public order” is one of the degrees and the extent of

the reach of the act in question upon society. Law and order comprehend disorders of less

gravity than those affecting “public order”, just as “public order” comprehends disorder of

less gravity than those affecting “security of State”.

2) Both MDBA, 2020 and KDCO, 2020 are void for being repugnant with an act of

parliament (i.e., NDPS act, 1985) and subsequently for not receiving the president

assent, according to the Article 254.

In Deep Chand v. State of Uttar Pradesh,7 the court averred that the repugnancy between two

enactments can be identified with the help of the following three tests:

a) Whether there is a direct conflict between the two conflicting provisions (Yes-

Section 7 MDBA and KDCO is in direct conflict in with Section 22(c) of the NDPS

Act, 1985);

b) Whether the Parliament intended to lay down an exhaustive enactment on the

subject-matter and to replace the law made by the State legislature (Yes- NDPS,

1985 is in exhaustive enactment); and

6
Kanu Biswas v State of W.B, AIR 1972 SC 1656 [LNIND 1972 SC 282].
7
1959 AIR 648, 1959 SCR Supl.

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 c) Whether the law made by the Parliament and that made by the State legislature

occupies the same field (Yes- NDPS, act 1985, and on the other hand, MDBA and

KDCO, occupies the same field under Entry 19, List III).8

If through application of this test, it is established that the state laws and the laws

enacted by the parliament are repugnant, then it is imperative to obtain the president assent

for a state law to prevail. In the upcoming section of this Memo, it will be observed that all

the conditions of the aforementioned test are met, therefore rendering the provisions of

MDBA and KDCO repugnant to the NDPS Act, 1985.

i) States do not have power under NDPS Act, 1985 to declare a substance

psychotropic.

Section 3 of the NDPS Act empowers only the central government to add or omit from the

list of psychotropic substances.9 A clear inference that the parliament intends to bar any state

from adding or omitting a psychotropic substance can be obtained by deciphering it.

Wherever the field is covered by the parliament law in terms of List I and List III, the law

made by the state Legislature would, to the extent of repugnancy would be void. The direct

conflict is not necessarily, where the field is occupied by the center, subject to the exceptions

stated in article 254, the state law should be void.1011

ii) Minimum term of imprisonment of 20 years provided under section 7 of

MDBA and KDCO is in direct contravention with NDPS Act.

Section 22(c) of NDPS act, provides for minimum punishment of 10 years for

possession of Psychotropic substance, involving commercial quantity. On the contrary,

8
1959 AIR 648, 1959 SCR Supl
9
Section 3 NDPS Act
10
Maa Vaishno Devi Mahila Mahavidyalaya v. State of Uttar Pradesh, (2013) 2 SCC 617 (652).
11
Section 22 of ndps

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 section 7 of MDBA and KDCO provides for minimum 20 years, which is in direct

contravention with Section 22(c).12 Hence section 7 is repugnant to the corresponding section

22(c) of the NDPS Act, 1985. The repugnancy between two statues would arise where exist a

conflict between the two provisions of law made by the Parliament and the law made by the

state Legislature are inconsistent.13 The court dealt with the similar situation in Zaverbhai

Amaidas v. the state of Bombay,14 where the central act provided for 3 years punishment for

an offence, while 7 years imprisonment was given in the state act for the same

punishment ,the Supreme Court held that both the laws occupied the same field and cannot be

split up; Hence, the State laws were held to be void and the Central law prevailed as per the

doctrine of repugnancy.

iii) President assent under Article 254 was not obtained.

When there is an inconsistency between the Union and the state laws, without the president

assent, law made by the parliament prevails.15 The state Law may become repugnant if there

is a conflict between the two provisions and the law made by the Parliament and state occupy

the same field and subsequent legislations made by the state which has not received the

president assent, the parliament law will prevail and state law to that extent will be void. 16 In

the present case, the laws were repugnant and president assent was not obtained. Hence,

MDBA and KDCO are void.

II. Section 5 of both, MDBA, 2020 & KDCO, 2020 and Sections 6 of MDBA, 2020

violate basic fundamental rights guaranteed under the Constitution?

1) Section 6 of MDBA, 2020 violates Article 20(1) of the Indian Constitution.

12
memorial
13
K.T. Plantation Pvt. Ltd. v State of Karnataka, AIR 2011 SC 3430.
14
1954 AIR 752, 1955 SCR 799
15
Article 254
16
Yogendra Kumar Jaiswal v. State of Bihar, AIR 2016 SC 1474.

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 Section 617 mandates the operation of this law to have a retrospective effect for

violation of provisions on possession, sale, purchase, trade, import, export, use and

consumption of Poison Ivy. In the present case, Hank, Mr. Dang and the two truck drivers are

charged under MDBA retrospectively. Section 6 is in direct contravention with Article 20(1)

which reads as “No person shall be convicted of any offence except for violation of a law in

force at the time of the commission of the act charged as an offence, nor be subjected to a

penalty greater than that which might have been inflicted under the law in force at the time

of the commission of the offence.”18

Also, Article II (2) of the Universal Declaration of Human’s Rights (UDHR) reads-

“No one shall be held guilty of any penal offence on account of any act or omission which

did not constitute a penal offence, under national or international law, at the time when it

was committed. Nor shall a heavier penalty be imposed than the one that was applicable at

the time the criminal offence was committed.” 19 In the case of Rattan Lal v State of Punjab,20

the court laid down the rule of beneficial construction required that an ex-post facto law

could be applied only to reduce the punishment.

2) Section 7 of both MDBA, 2020 and KDCO, 2020 are violative of Article 14 of the

Indian Constitution.

Section 22(c) of NDPS Act, 1985 provides for a minimum punishment of 10 years for

a contravention in relation to psychotropic substances involving commercial quantity. 21 On

the contrary, Section 7 of both MDBA, 2020 and KDCO, 2020 provides for minimum

punishment for 20 years, which directly contravenes Article 14 of the Constitution 22 as being

arbitrary. There is no rational for why the state would prescribe higher punishment for Poison
17
18
Article 20(1)
19
Article 7(1) of the European Convention of Human Rights, 1950, reproduces this text.
20
1965 AIR 444, 1964 SCR (7) 676
21
20(c) of Ndps act.
22

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Ivy as compared to other Psychotropic and Narcotic substances mentioned under NDPS Act,

1985. Section 7 is entirely arbitrary and holds no reasonable justifications to be valid.

3) Section 5 of MDBA and KDCO violates Article 19(1)(g) and Article 47 of the

Indian Constitution.

According to Article 19(1)(g)23, All citizens shall have right- “to practice any

profession, or to carry on any occupation, trade or business”. A complete ban on Miracule is

depriving people of their rights granted to them in 19(1)(g). Article 19(6) allows reasonable

restriction on the operability of 19(1)(g). Prohibition of “Poison Ivy” is justified under 19(6)

because it has no benefit upon the society and is in fact detrimental. 24 However, Miracule is

just one component of the final product and has lots of threptic advantages. Miracule is an

essential element in many analgesic medicines and ayurvedic painkillers and any blanket ban

on its cultivation or production is unfair and unlawful.

In the case of State of Madras v V.G. Row25, the court observed that “The phrase

“reasonable restriction” connotes that the limitation imposed upon a person in enjoying a

right should not be arbitrary or of an excessive nature beyond what is required in the interest

of the public. Legislation which arbitrarily or excessively invade the right cannot be said to

contain the quality of reasonableness and unless it strikes a proper balance between the

freedom guaranteed under Article 19 (1)(g) and the social control permitted by clause (6) of

Article 19 must be held to be wanting in reasonableness.”26 The complete ban on Miracule

would devoid the people of India the medicinal benefits of Miracule, as well as lots of

farmers will end up losing their employment.

23
24

25
AIR 1952 SC 196.
26
AIR 1952 SC 196.

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 One of the tests of reasonableness is that the restriction should not be excessive which

is also known as the “proportionality test”.27 It implies that the restriction inflicted in the

exercise of a fundamental right should be proportionate to the particular object sought,

empowered by the limitation clause annexed to ensure that right. In the present case,

complete ban on Miracule is excessive, as it unjustly punishes the farmers and brings no

comparable gain for the potential good of the society. Additionally, the rational provided by

the relevant authority to justify the restriction must be relevant and sufficient under the

limitation clause.28 Arbitrariness being opposed to reasonableness is an anti-thesis to law, and

a precaution has to be taken to observe that if wide powers are conferred by statute on any

authority then these must be exercised in furtherance of public policy.29

i) Article 47

ii) In the facts of the current case, it is explicitly stated that the Miracle used to

manufacture Poison Ivy is being imported through the Arabian Sea and into

Maharashtra and later manufactured in facilities situated around the Maharashtra-

Karnataka border. We can easily assume that, if the Miracle being cultivated in India

were utilized to manufacture Poison Ivy, then the import of Miracle would not have

been necessary.

Hence, there is no rational for banning the cultivation of Miracule, as it has

nexus to the objective which is needed to be achieved. The principle of

reasonableness, which logically as well as philosophically, an essential element of

equality or non-arbitrariness.30 Banning the cultivation of Poison Ivy, by this logic

would not result in curbing down the manufacture of Poison Ivy.

27
 Om Kumar v UOI, AIR 2000 SC 3689.
28
Krishnan Kakkanath v State of Kerala, AIR 1997 SC 128 [LNIND 1996 SC 1688]
29
 Consumer Action Group v State of TN, AIR 2000 SC 3060 [LNIND 2000 SC 1130]
30
Menaka Gandhi

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III. The Governor of Karnataka was not constitutionally competent to promulgate and

re-promulgate KDCO, 2020.

1) State had no subject-matter competence for a governor to promulgate the

ordinance.

A governor has power to promulgate an ordinance under Article 213 31, only when the

Legislative Assembly of the state or where there is Legislative Council in a state are not in

session. However, Article 213(3) also says, that “If and so far as an Ordinance under this

article makes any provision which would not be valid if enacted in an Act of the Legislature

of the State assented to by the Governor, it shall be void.” 32 Legislative competence would be

one of the primary questions that court should be concerned with while deciding the validity

of the ordinance.

The scope of the Ordinance-making power of the Governor is co-extensive with the

legislative powers of the State Legislature, and it shall be confined to the subjects in Lists II

and III of Schedule VII. As, it has been already substantiated in the initial section of this

Memorial that the State of Karnataka does not have a subject-matter competence to enact

KDCO, 2020. Hence, the Governor is not constitutionally competent to promulgate KDCO,

2020.

2) President assent was not obtained under Article 213.

For the sake of argument, even if the honorable court deems KDCO, 2020 to be valid

legislation based on subject-matter competence, in that case also, the ordinance would be

void in accordance with Article 213(3) proviso which states- “for the purposes of the

provisions of this Constitution relating to the effect of an Act of the Legislature of a State

which is repugnant to an Act of Parliament or an existing law with respect to a matter

enumerated in the Concurrent List, an Ordinance promulgated under this article in

31
32

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pursuance of instructions from the President shall be deemed to be an Act of the Legislature

of the State which has been reserved for the consideration of the President and assented to by

him.”33

The application of the doctrine of the “pith and the substance” in the beginning of the

memorial makes it clear, that KDCO, 2020 falls in the Entry 19, List III of the Seventh

Schedule. List III is the concurrent list and hence if the act of legislation by the state which is

KDCO, 2020 is repugnant to the act of legislation which is NDPS Act, 1985, the act of

parliament will prevail when the president has not given his assent, according to the

aforementioned provision. The president has not given his assent, in the present case,

therefore, rendering KDCO, 2020 void.

3) Repromulgation is a fraud on the constitution.

The facts of the present case clearly state that the Karnataka state Legislature during the

budget session, failed to deliberate/vote on KDCO, 2020. According to Article 213(2)(a), the

bill would cease to operate at the expiration of six weeks from the reassembly of the

legislature. The application of the aforementioned Article renders KDCO, 2020 cease to

operate. On February 24th, 2021, the Governor of Karnataka repromulgated the KDCO. In

D.C Wadhwa v State of Bihar,34 the Supreme court held “Where the Executive has taken over

the role of Legislature in making laws for years together and issues successive Ordinances

by re-promulgating it, the same amounts to fraud on Constitution. The Supreme

Court  deprecated the practice and held that such a practice was clearly contrary to the

Constitutional scheme and was improper and invalid. It was held that such a stratagem

would be repugnant to constitutional scheme, as it would enable the executive to transgress

its constitutional limitation in the matter of law-making in an emergent situation and to

covertly and indirectly arrogate to itself and usurp the law-making function of the

33

34
1987 AIR 579.

9
Legislature. That would be subverting the democratic process which lies at the core of the

constitutional scheme. It was held that the power to promulgate an Ordinance is essentially a

power to be used to meet an extraordinary situation and it cannot be allowed to be

“prevented to serve political ends””.35

In Krishna Kumar Singh v State of Bihar, 36 a seven-judge bench of the Supreme Court

reiterated that the promulgation of ordinances is a fraud on the constitution and a subversion

of democratic legislative process, as laid down in the judgment of the constitution Bench in

D.C. Wadhwa v State of Bihar. Hence, the Governor of Karnataka is not competent to

Repromulgate KDCO, 2020.

PRAYER

For the foregoing reasons the Petitioners respectfully request this Honorable Court to adjudge

and declare the following:

I. The present petition is maintainable.

II. Yesla should pay damages for the accident.

III. By causing the user to click on a prompt informing them of increased chances of

Accidents, Yesla did not absolve itself of its liability.

IV. The Mad Max mode of the NUCar is banned.

35
1987 AIR 579.
36
(2017) 3 SCC 1

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All of which is respectfully submitted, Counsel on

behalf of the Mr. Sandipan Roy and Others.

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