TEAM CODE : “ PRAKRUTI”

JAGARLAMUDI CHANDRAMOULI COLLEGE OF LAW

1ST NATIONAL MOOT COURT COMPETITION – 2020

BEFORE THE HON’BLE SUPREME COURT OF INDIA

APPELATE JURISDICTION

SLP FILED UNDER ART. 136 OF INDIAN CONSTITUTION

APPEAL. No. xxx OF 2020

IN THE MATTER OF

THE STATE OF ANDHRA PRADESH……………………………....…….……….APPELLANT

Vs.

DEEPCHAND & ORS…………………..……………………….…………………RESPONDENT

MEMORIAL ON BEHALF OF RESPONDENT

1
 TABLE OF CONTENTS

LIST OF ABBREVIATIONS…………………………………………………….……………..…03

INDEX OF AUTHORITIES……………………………………………………………………... 05

STATEMENT OF JUSRISDICTION……………………………………………………………06

STATEMENT OF FACTS……………………………………………………………………..… 07

STATEMENT OF CHARGES & EVIDENCE…………….……………………………….…….08

ISSUES RAISED…………….………………………………………………………………..…….09

SUMMARY OF ARGUMENTS………………………………………………………………… .10

ARGUMENTS ADVANCED……………………………………………………………………. ..11

PRAYER…………….……………………………………………………………………………….25

2
 LIST OF ABBRIVATION

¶ Paragraph Number

& And

AIR All India Reporter

Anr. Another

Art Article

Constitution The Constitution of India, 1950

ed. Edition

e.g. exemplis gratia (Latin)

etc. Etcetera

Govt. Government

Hon’ble Honourable

i.e. id est(Latin)

No. Number

Ors. Others

p. Page Number

pp. Page Numbers

SC Supreme Court

Sec Section

SLP Special Leave Petition

S. No. Serial Number

U/A Under Articles

UOI Union Of India

vs. Versus

3
 INDEX OF AUTHORITIES
[A] AUTHORITIES CITIES
1. A.Rajendra Kumar v. Registrar, Supreme Court of India, (2005) 13 SCC 443.
2. Air India V. Nergesh Meerza ; 1981 Air 1829, 1982 Scr (1) 438
3. Ahuwalaia V. Union Of India; 1997 Air Scc (232)
4. Anuj Garg V. Hotel Association Of India ; Air 2008 Sc 663
5. K. Parthasarthi V. Government Of Andhra Pradesh; Air 2000 Ap 156
6. Bolin Chetia v. Jogadish Bhuyan, (2005)6 SCC 81: AIR 2005 SC 1872.
7. Dukhmochan Pandey v. State of Bihar, (1997) 8 SCC 405;
8. Govind V. State Of Madhya Pradesh; 1975 Air 1378, 1975 Scr (3) 946
9. Hemalatha Gargya v. CIT, (2003) 9 SCC 510: (2002) Supp (4) SCR 382;
10. Hoskot V. State Of Maharashtra; 1978 Air 1548
11. Hussainara Khatoon And Others V. Home Secretary State Of Bihar; 1979 Air 1369
12. Indra Sarma V. V.K.V.Sarma ; Air 2009 Of 2013
13. John Vallamatom V. Union Of India; Air 2003 Sc 2902
14. Justice K.S. Puttaswamy V Union Of India; Air 220 of 2015
15. Kharak Singh V. The State Of Up; Air 1963 Sc 1295
16. Kishore Samrite V. State Of U.P; 5(2013)Air 2 Scc 398
17. K.S. Puttaswamy & Anr. V. Union Of India & Ors; Air (2017) 10 Scc 1
18. K. Thimmappa V. Chairman, Central Board Of Directors; Air 2001 Sc 467
19. Kunhayammed v. State of Keraka, AIR 2000 SC 2587; (2000)6 SCC 359
20. Legal Services Authority V. Union Of India & Ors; Air (2014) 5 Scc 438
21. Maneka Gandhi V. Union Of India; 1978 Air 597
22. M.H. Hoskot V. State Of Maharashtra; 1978 Air 1548
23. Meena v. State of Maharashtra, (2000) 7 SCC 21 : 2000 Cr LJ 2273.
24. Narendra Kumar V. State Of Haryana Jt; (1994) 2 Sc 94, 1994 (4 Scc 460)
25. National Legal Services Authority V. Union Of India; Air 1998 Sc 2940
26. Narcotics Control Bureau v Dilip Prahlad Namade, (2004) 3 SCC 619: AIR 2004 SC 29
27. Nihal Singh v. State of Punjab, AIR 1965 SC 26;
28. Pawan Kumar V. State Of Haryana; (2003), 11 Scc 241;, Air 2003 Sc 2987
29. Prem Shankar Shukla V. Delhi Admn; 1980 Air 1535.
30. Rahim Beg v. State of Uttar Pradesh. AIR 1973 SC 343; Balak Ram v. State of U.P., AIR
31. R. Rajagopal V. State Of T.N; Air 1995 Sc 264
32. Reserve Bank of India v. Sharada Devi, (2005) 10 SCC 178.
33. Saurashtra Oil Mills Assn. v. State of Gujarat, (2002) 3 SCC 202 : AIR 2002 SC 1130
4
 34. Secreatary Ministr of I And B V. Cricket Association Bengal; Air (1995)2 Scc 161
35. State of Bihar V. Lal Krishna Advani; Air 2003 Sc 3357
36. State of Sikkim V. Surendra Prasad Sharma, Jt ; Air (1994) 3sc 372; (1994) 5scc 282s. S.
37. State of Uttar Pradesh v. Babul Nath, (1994)6 SCC 29 1994 SCC (Cri) 1585;
38. Spencer & Co v. Vishwadarshan Distributors(Pvt.) Ltd., (1995) I SCC 259;
39. Tirupati Balaji Developers (P) Ltd. v. State of Bihar, (2004) 5 SCC: AIR 2004 SC 2351
40. Umesh Kumar V. State Of Andhra Pradesh; Air (2013) 10 Scc 591
41. Union of India V. M.V. Valliappan; Air (1996) 6 Scc 259.
42. Union of India v. Era Educational Trust, (2000) 5 SCC 57 : AIR 2000 SC 1573.

[B] STATUTES
 Indian Evidence Act, 1872
 Indian Penal Code, 1860
 Explosive Substances Act, 1908
 The Constitution of India, 1950

[C] BOOKS
 M.MONIR. CJ, Law of Evidence 163, Universal Law Publishing Co.(16th.ed.,2013)
 Dr. Hari Singh Gour’s, Penal Law of India, Law Publisher’s (India) Pvt. Ltd., (ed. 11
vol.3)
 K.D Gaur, The Indian Penal Code, Universal Law Publishing Co., (2 ed.)
 Durga Das Basu, Shirter Consitution of India, LexisNexis Butterworths Wadhwa Nagpur,
(14th ed. 2009 Vol. 1)
 M.P Jain, India Constitution of Law, LexisNexis Butterworths Wadhwa Nagpur,( 6 th
ed.,2010, Vol. 1)
 Corwin, The Constitution And What It Means To-Day, 78 (1958)
 H.M. Seervai, Constitutional Law Of Arese:A Critical Commentary (4th Ed. 1991)
 Dr. Jain Pandey, Constitutional Law of Arese (Central Law 51st Ed. 2014)

[E] DATABASES AND WEBSITES

 LexisNexis [www.lexisnexis.com]
 Westlaw [www.westlaw.com]
 Manupatra [www.manupatra.com]
 SCC Online [www.scconline.co.in]
 Indian kanoon[www.indiakanoon.com]
5
 STATEMENT OF JUSRISDICTION

The Petitioner herein has approached this Hon’ble Apex Court of India under Article 136 of Indian
Constitution, 1950:

1. Petitioner in SLP U/Art. 136 of the Constitution of India, 1950.

Appeal NO. xxx OF 2020

Article 136 - 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 India.

This Memorandum sets forth the facts, laws and the corresponding arguments on which the claims
are based in the instant case. The Petitioner affirms that they shall accept any Judgment of this
Hon’ble Court as final and binding upon itself and shall execute it in its entirety and in good faith.

[Each of the parties to the pending dispute before this Hon’ble Court may be referred to individually
as either ‘Petitioner & ‘Respondent as the case may be. For the sake of convenience, they may be
collectively referred to as ‘the Petitioner & ‘the Respondent.]

6
 STATEMENT OF FACTS

 The Amaravati police have charged Deepchand, for the offences under Sections 4 and 5 of
the Explosive Substances Act, 1908 and his family members, for the offences under
Sections 120B, 143 and 144 IPC.

 Communal riots broke out in the city and continued unabated for 2 days. Deepchand
made phone calls to police informing to them that his shop was attacked and gutted by the
rioters and property worth nearly rupees ten lakh in total was looted.

 Police search party that was combing the area for weapons and rioters, entered into the
house and shop of the accused.

 They found six spears, a sword, three half litter containers of Sulphuric Acid and ten
petrol bombs.

 Police arrested the accused and charged them for the offences under the above stated
Sections.

 The Sessions Court at Amaravati convicted Deepchand with 10 years’ imprisonment each
for the offences under Sections 4 and 5 of Explosive Substances Act to run concurrently to
his family members each with six months’ imprisonment under Section 143 IPC and two
years’ imprisonment under Section 144 IPC to run concurrently.

 High Court of Andhra Pradesh has acquitted all the accused.

 The State preferred the appeal to Supreme Court. The appeal is posted for arguments.

At Present The Case Is Set For Hearing Before The Hon’ble Apex Court Of India.

7
 C
STATEMENT OF CHARGED & EVIDENCE

CHARGED
 Deepchand, aged 35 (Accused 1)

 Has been charged for the offences under Sections 4 and 5 of the Explosive Substances Act,
1908. And for the offences under Section 120B, 143 and 144 of Indian Penal Code

 Deepchand’s family members,

1) Wife age 32, (Accused 2)

2) Two brothers aged 30 and 25 years (Accused 3 & 4)
3) Mother aged 55 years, (Accused 5)

 Has been charged for the offences under Sections 120B, 143 and 144 of Indian Penal Code.

THE FOLLOWING MATTERS ARE IN EVIDENCE:

 That the shop was attacked twice, property worth rupees ten lakh was looted and the shop was
gutted;

 That the accused made phone calls to police but they have not responded;

 That property worth another rupees ten lakh was in the stock room;

 That the first younger brother of the accused was in an earlier case prosecuted for attacking
the other community in a communal riot and was acquitted on benefit of doubt;

 That isolated acts of rioting and looting continued till 25th July; and

 That fire resistant paint was applied and fire extinguishers were kept

8
 ISSUES RAISED

ISSUE 1

WHETHER THE SLP FILED BY THE STATE IS MAINTANABLE OR NOT?

ISSUE II

WHETHER THE OFFENCES ARE MADE OUT UNDER SECTION 4 & 5 OF EXPLOSIVE
SUBSTANCE ACT?

ISSUE III

WHETHER THE OFFENCES ARE MADE UNDER SECTION 120B, 144 & 143 OF IPC?

ISSUE IV

WHETHER THE HIGH COURT IS RIGHT IN ACQUITTING ALL THE ACCUSED?

9
 SUMMARY OF ARGUMENTS

ISSUE 1 WHETHER THE SLP FILED BY THE STATE IS MAINTANABLE OR NOT?

In the present case, the High Court has appreciated the fact that the Sessions court has erred in
conducting the trail in due diligence and fair manner. It is also evident from the fact that the
possession of the explosive substances was for the purposes of self protection which is permissible in
law. Hence the Hon'ble High Court is rightfully acquitted the accused. Therefore the SLP filed by the
Appellant is not maintainable as there is no patent irregularity or illegality in deciding the Criminal
Appeal by the Hon'ble High Court.

ISSUE II WHETHER THE OFFENCES ARE MADE OUT UNDER SECTION 4 & 5 OF
EXPLOSIVE SUBSTANCE ACT?
The Hon’ble High Court has rightfully appreciated the facts that the Appellants herein had taken their
fullest efforts in investigation of the offence but however subsequently, the trial conducted by the
Sessions Court that the accused are found guilty is erroneous in law. Hence the accused are not guilty
of charges under sections 4 & 5 of the Explosive Substance Act.

ISSUE III WHETHER THE OFFENCES ARE MADE UNDER SECTION 120B, 144 & 143
OF IPC?
It is evident from the fact that the accused relative is involved in the riots and relatives are very well
knowledge of the same but that doesn’t pave way to the conclusion that the accused are guilty u/s
120B, 143, 144 as there is absence of concurrent motive of the accused to involve in such riots.
Hence the above acts are sufficient to prove that the accused are not guilty of charges under sections
120B, 144 & 143 of Indian Penal Code, 1860.

ISSUE IV WHETHER THE HIGH COURT IS RIGHT IN ACQUITTING ALL THE

ACCUSED?
It is humbly submitted before this Hon‟ble Apex Court that the circumstantial evidence doesn't forms
a complete chain, link by link, to establish the criminal conspiracy and nor the necessity for
possession of explosive substances would reveal that offence is made out as discussed in 2 nd and 3rd
issue. Hence it is proven beyond a reasonable doubt that the offence was indeed not committed by the
accused in the case at hand. Thus the accused person is falls within the shield of take private defense.
Therefore the High Court right in acquitting all the accused.

10
 ARGUMENTS ADVANCED

ISSUE 1: WHETHER THE SLP FILED BY THE STATE IS MAINTANABLE OR NOT?

In the present case, the High Court has appreciated the fact that the Sessions court has erred in
conducting the trail in due diligence and fair manner. It is also evident from the fact that the
possession of the explosive substances was for the purposes of self protection which is permissible in
law. Hence the Hon'ble High Court is rightfully acquitted the accused. Therefore the SLP filed by the
Appellant is not maintainable as there is no patent irregularity or illegality in deciding the Criminal
Appeal by the Hon'ble High Court.

The Supreme Court has observed in Pritam Singh v. The State.1 That the power under Art. 136- “Is to
be exercised sparingly and in exceptional cases only, and as far as possible, a more or less uniform
standard should be adopted in granting special leave in the wide range of matters which can come up
before it under this Article. By virtue of this Article, we can grant special leave in civil cases, in
criminal cases, in income-tax cases, in cases which come up before different kinds of tribunals and in
a variety of cases, “The Court has emphasized: "The only uniform standard which in our opinion can
be laid down in the circumstances is that Court should grant special leave to appeal in those cases
where special circumstances are shown to exist."In conclusion, the Court has said: “Generally
speaking, this Court will not grant special leave, unless it is shown that exceptional and special
circumstances exist, that substantial and grave injustice has been done that the case in question
presents features of sufficient gravity to warrant a review of the decision appealed against."
Ordinarily, the parties are directed to approach the High Court for recall, stay or modification of the
interim order.2 At times, the Supreme Court has, while dismissing such petition requested the High
Court to dispose of the matter preferably within a time frame. Use of imperative words such as
"directed" and fixing a time frame within which the High Court "shall" dispose of a matter have, on
occasion, led to a confrontation between the High Court and the Supreme Court.3Where, for example,
it appears prima facie that the order in question cannot be justified by any judicial standard; the ends
of justice and the need to maintain judicial discipline require the Supreme Court to intervene. 4

[1.1] Effect Of Dismissal Of Special Leave Petition

When a special leave petition is dismissed in limine by the Supreme Court, when the Court merely
1
AIR 1950 SC 169 :1950 SCR 453
2
Reserve Bank of India v. Sharada Devi, (2005) 10 SCC 178.
3
Spencer & Co v. Vishwadarshan Distributors(Pvt.) Ltd., (1995) I SCC 259;Tirupati Balaji Developers (P) Ltd. v. State of
Bihar, (2004) 5 SCC: AIR 2004 SC 2351
4
Union of India v. Era Educational Trust, (2000) 5 SCC 57 : AIR 2000 SC 1573.
11
says "dismissed" without giving any reasons, all that the Court decided in such a situation is that it
was not a fit case where special leave to appeal should have been granted under Art. 136; it would
only mean that the court was not inclined to exercise its discretion in granting leave to file the appeal. 5
The Supreme Court says nothing about the merits of the case, or the correctness or otherwise of the
order from which leave to appeal is sought. The requirement for appellate courts to give reasons when
summarily dismissing an appeal, does not apply to the Supreme Court as it is the final court. 6

[1.2] Courts Discretion

It is a well established principle that even though the Court may grant special leave to appeal, the
discretionary power vesting in the Court at that stage continues to remain with the Court even at the
time of hearing the appeal on merits. This principle is applicable to all kinds of appeals admitted by
special leave under Art. 136, irrespective of the nature of the subject matter.7

[1.3] Dismissal Of Appeal

After the Supreme Court grants leave to appeal, the Court hears the appeal on merits. After hearing the
arguments of the parties, the Court gave its decision. The Court may dismiss the appeal with or
without giving reasons for the same, or the Court may pass an order of reversal, modification or
merely affirmation of the decision of the lower court or tribunal. In any such situation, the decision
appealed against gets merged with the decision of the Apex Court. This means that after the Supreme
Court, the original decision appealed against cannot be challenged through a writ petition under
Art.226 in a High Court. Nor can the lower court or tribunal review its decision against which the
Supreme Court has disposed of the appeal.8

[1.4] Special Leave In Criminal Matters

If the trial is vitiated by some illegality or irregularity of procedure, if it "shocks the conscience of the
court”, or if "by disregard to the forms of legal process or some violation of the principles of natural
justice or otherwise” substantial and grave injustice has been done, or there is no evidence to support
the findings of fact, or the conclusions of the High Court are manifestly perverse, are based on
surmises and conjectures unsupportable by evidence, the Supreme Court may go behind the findings
of fact arrived at by the courts below.9 The Court does not interfere with concurrent findings "unless

5
Saurashtra Oil Mills Assn. v. State of Gujarat, (2002) 3 SCC 202 : AIR 2002 SC 1130. Hemalatha Gargya v. CIT, (2003)
9 SCC 510: (2002) Supp (4) SCR 382; Narcotics Control Bureau v Dilip Prahlad Namade, (2004) 3 SCC 619: AIR 2004
SC 2950.
6
Bolin Chetia v. Jogadish Bhuyan, (2005)6 SCC 81: AIR 2005 SC 1872. See also A. Rajendra Kumar v. Registrar,
Supreme Court of India, (2005) 13 SCC 443.
7
See, Pritam Singh v. The State, AIR 1950 SC 169 1950 SCR 453; M/s. Bengal Chemical & Pharmaceutical Works Ltd.
v. Their Workmen, AIR 1959 SC 633: 1959 Supp (2) SCR 136.
8
Kunhayammed v. State of Keraka, AIR 2000 SC 2587; (2000)6 SCC 359
9
Nihal Singh v. State of Punjab, AIR 1965 SC 26; Rahim Beg v. State of Uttar Pradesh. AIR 1973 SC 343; Balak Ram v.
State of U.P., AIR 1974 SC 2165; State of Uttar Pradesh v. Babul Nath, (1994)6 SCC 29 1994 SCC (Cri) 1585;
12
the findings are vitiated by errors of law, or the conclusion reached by the courts below are so patently
opposed to well- established principles as to an miscarriage of justice," or where the interest of justice
so requires.10 In Mathura Prashad v. State of Madhya Pradesh,11 the Supreme Court interfered with
concurrent findings of fact of the courts below on the ground that the findings “suffer from the vice of
perversity". The Supreme Court does not interfere with the sentence passed by the lower courts unless
there is an illegality in it, or it is harsh or unjust in the facts and circumstances of the case, or it is
unduly lenient, or it involves any question of principle, or where the High Court does not exercise its
discretion judicially on the question of sentence.12 Although the Court will not ordinarily make an
order placing the appellant in a more disadvantageous position had the appeal not been preferred 13 in
criminal appeal by an accused against the sentence imposed by the High Court, the sentence was in
fact enhanced.14The Supreme Court does not interfere with the High Court's finding of acquittal unless
that finding is clearly unreasonable, or unsatisfactory, or perverse, or manifestly illegal, or grossly
unjust, or is vitiated by some glaring infirmity in the appraisal of evidence,15 or the High Court
completely misdirected itself in reversing the order of conviction by the trial court, or it results in
gross miscarriage of justice. The fact that another view could also have been taken of the evidence on
record would not justify interference with the judgment of acquittal.16 And though in criminal matters
ordinarily the Court does not interfere with concurrent findings of fact but can in an appropriate case it
may do so for the ends of justice.17

Dukhmochan Pandey v. State of Bihar, (1997) 8 SCC 405; Meena v. State of Maharashtra, (2000) 7 SCC 21 : 2000 Cr LJ
2273.
10
Budhsen v. State of Uttar Pradesh, AIR 1970 SC 1321; State of U.P. v. Sheo Ram, AIR 1974 SC 2267; Dulichand v.
Delhi Administration, AIR 1975 SC 1960; Rafiq v. State of Uttar Pradesh, AIR 1981 SC 559; Indira Kaur v. Sheo Lal
Kapoor, AIR 1988 SC 1074; Balak Ram v. State of Uttar Pradesh, AIR 1974 SC 2165; Lala Ram v. State of Uttar Pradesh,
AIR 1990 SC 1185; Nain Singh v. State of Uttar Pradesh, (1991) 2 SCC 432; Ranbir Yadav v. State of Bihar, AIR 1995
SC 1219; Lal Mandi v. State of West Bengal, AIR 1995 SC 2265; Ram Sanjiwan Singh v. State of Bihar, (1996) 8 SCC
552; S. Gopal Reddy v. State of Andhra Pradesh, AIR 1996 SC 2184; Naidu Srihari v. State of Andhra Pradesh, AIR
1bowan Singh v. State S SC 1219; Lal Mandate of Uttar (1996) 10 SCC 393; State of Punjab v. Jugraj Singh, JT 2002 (2)
SC 147: (2002) 3 SCC 234; Sukhbir Singh v. State of Haryana, (2002) 3 SCC 327: AIR 2002 SC 1168.
11
AIR 1992 SC 49. Also see, State of Uttarpradesh v. Dan Singh, AIR 1997 SC 1654; Ramanbhai Naranbhai Patel v.
State of Gujarat, (2000) 6 SCC 359 : AIR 2000 SC 2587; Orsu Venkat Rao v. State of A.P., (2004) 13 SCC 243: AIR
2004 SC 4961.
12
State of Maharashtra v. M.H. George, AIR 1965 SC 722 : 1965 (1) SCR 123: Nathu Singh v State of Madhya Pradesh,
AIR 1973 SC 2783 : (1974) 3 SCC 584; Kodavandi v. State of Kerala. AIR 1973 SC 467: (1973) 3 SCC 469.
13
Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, (2004) 3 SCC 214, 244: AIR 2004 SC 1815.
14
Deo Narain Mandal v. State of UP, (2004) 7 SCC 257 : AIR 2004 SC 5150. See also Gir Prasad v State of UP., (2005) 13
SCC 372: (2006) 2 SCC (Cr) 250.
15
Deputy Chief Controller v. Kosalram, AIR 1971 SC 1283; State of Uttar Pradesh v. Sahai, AIR 1981 SC 1442 : (1982) 1
SCC 352; State of U.P. v. Hari Ram, AIR 1983 SC 1081:(1983) 4 SCC 453; Rajesh Kumar v. Dharamvir, (1997) 4 SCC
496 : 1997 CRLJ 2242: Sarbir v. Surat Singh AIR 1997 SC 1160; State of Uttar Pradesh v. Abdul, AIR 1997 SC 2512 :
(1997) 10 SCC 135. Anvaruddin v. Shakoor, AIR 1990 SC 1242 : (1990) 3 SCC 266; Gauri Shankar Sharma : State of
Uttar Pradesh, AIR 1990 SC 709 : 1990 Supp SCC 656: State of U.P. v. Banne, (2009) 4 SCC 271: (2009) 3 JT 552. For
Art. 39(b), see, Ch. XXXIV, infra.
16
State of Uttar Pradesh v. Ashok Kumar Srivastava, AIR 1992 SC 840: (1992) 2 SCC 86: State of Rajasthan v. Narayan,
AIR 1992 SC 2004 (1992) 3 SCC 615; State of Uttar Pradesh v. Anil Singh, AIR 1988 SC 1998; Appabhai v. State of
Gujarat, AIR 1988 SC 696

17
State of Uttar Pradesh v. Harihar Bux Singh, AIR 1974 SC 1890: (1975) 3 SCC 167; State of U.P. v. Jashoda Nandan
Singh, AIR 1974 SC 753; Mohan Lal Hargovind Dass v. Ram Narain, AIR 1980 SC 1743; State of Andhra Pradesh v. P.
13
ISSUE II: WHETHER THE OFFENCES ARE MADE OUT UNDER SECTION 4 & 5 OF
EXPLOSIVE SUBSTANCE ACT?

The Hon’ble High Court has rightfully appreciated the facts that the Appellants herein had taken their
fullest efforts in investigation of the offence but however subsequently, the trial conducted by the
Sessions Court that the accused are found guilty is erroneous in law. Hence the accused are not guilty
of charges under sections 4 & 5 of the Explosive Substance Act.

"Explosive substance" shall be deemed to include any materials for making any explosive substance;
also any apparatus, machine, implement or material used, or intended to be used, or adapted for
causing, or aiding in causing, any explosion in or with any explosive substance; also any part of any
such apparatus, machine or implement; In Gamdoor Singh v. State of Punjab18 the court observed that
the definition of the term ‗explosive substance’s not exhaustive. Any contravention by itself, or which
with the help of another would go to make explosives substance is covered by the definition. Thus a
hand- grenade not fitted with igniter set is an explosive substance. Section 4 If any person unlawfully
and maliciously:
(i) Does or conspires any act with intent to cause by an explosive substance which likely to endanger
life or to cause serious injury to property; or
(ii) Makes, possesses or controls any explosive substance with intent to endanger life, or cause serious
injury to property in India, etc.,

Such person shall be liable to be punished under this section whether any explosion take place and
whether any injury to person or property caused or not. Section 5 This section prescribe punishment
who makes or knowingly possess or control any explosive substances, under such circumstances as to
give rise to a reasonable suspicions that he does not makes it, possesses or control for a lawful object
unless proved contrary, such person shall be punished under this section.

[2.1] Punishment for Attempt to Cause Explosion, or for Making or Keeping Explosive With
Intent to Endanger Life or Property (Section 4)
Any person who attempt to cause explosion, or for making or keeping explosive with intent to
endanger life or property shall, be punished,--
(i) In the case of any explosive substance, with imprisonment for life, or with imprisonment of either

Anjaneyulu, AIR 1982 SC 1598; Mool Chand v. Jagdish Singh Bedi, (1993) (2) SCC 714 : 1993 SCC (Cri) 767; State of
Uttar Pradesh v. Dan Singh AIR 1997 SC 1654 : (1997) 3 SCC 747; State of Maharashtra v. Ashok Chotelal Shukla, AIR
1997 SC 3111; State of Punjab v Karnail Singh 2003 11 SCC 271 : AIR 2003 Sc 3609; Shri Gopal v Subhash, 13 SCC
174, 180: AIR 2004 SC 4900. SVL Murthy v. State represented by CBI, Hyderabad. (2009) 6 SCC 77.
18
1981 CrLJ 1912 (Punj)
14
description for a term which may extend to ten years, and shall also be liable to fine;
(ii) In the case of any special category explosive substance, with rigorous imprisonment for life, or
with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.

[2.2] Use Of Explosives And Fire Arms

In case of attack by use of explosives and fire arms, the appellant being a member of the conspiracy
in respect of the said attack procured materials for and being aware of the conspiracy in respect of the
said attack procured materials for and being aware of preparation of explosives meant to be used in the
said attack would be guilty under section 4 and not under section 3 of the Explosives Substance Act
1908- State (NCT of Delhi) v. Navjot Sandhu19. Punishment for Making or Possessing Explosives
Under Suspicious Circumstances (Section 5) Any person who makes or possessing explosives under
suspicious circumstances shall, be punished,--
(a) In the case of any explosive substance, with imprisonment for a term which may extend to ten
years, and shall also be liable to fine;
(b) In the case of any special category explosive substance, with rigorous imprisonment for life, or
with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.

[2.3] Possession Of Explosives

For offence under Section 5 of the Act, the fact that the appellant was found in the possession of
the explosive substance could not be sufficient to prove the act within the purview of Section 5. Initial
burden to prove the fact of possession and the existence of circumstances which give rise to
reasonable suspicion that such explosive substance possessed by the accused was not for a lawful
object lay. Both the possession and the circumstances have to been proved by the appellant. 20
For charge under section 5, the prosecution is to prove:
(1) That the substance in question is an explosive substance;
(2) That the accused makes or knowingly has in his possession or under his control any explosive
substance; and
(3) That he does so under such circumstances as to give rise to a reasonable suspicion that he was not
doing so far a lawful object.

The burden to prove those ingredients is on the prosecution. On prosecution discharging the burden, it
lies upon the defense to prove he was making or possessing the explosive substance for lawful object-
Mohammad Usman V. State Of Maharastra21. The decision reported in Rajani Kanta Mandal v. State
of Bihar relied on by the learned Counsel for the petitioners has no application to the facts of this case.

19
(2005)11 SCC600
20
Laxman Prasad Vs. State of Rajasthan RLW2009(2)Raj990
21
AIR 1981 SC 1602.
15
It was held in that case that to substantiate a charge under section 5 of the explosive substances act, it
is not sufficient to prove merely that the accused was in conscious possession of
an explosive substance and that the appellant has to prove further that incriminating objects were
recovered from the possession of the accused in the circumstances giving rise to a reasonable
suspicion that he had taken them in his possession not for a lawful object.
The National Security Act, 1980 Section 13 This section permits detention of persons suspected of
being a threat to `public order', or `security of the State', etc., for up to one year without trial simply on
the orders of an executive authority.

16
ISSUE III: WHETHER THE OFFENCES ARE MADE UNDER SECTION 120B, 144 & 143
OF IPC?

It is evident from the fact that the accused relative is involved in the riots and relatives are very well
knowledge of the same but that doesn’t pave way to the conclusion that the accused are guilty u/s 120B,
143, 144 as there is absence of concurrent motive of the accused to involve in such riots. Hence the
above acts are sufficient to prove that the accused are not guilty of charges under sections 120B, 144 &
143 of Indian Penal Code, 1860.

[3.1] Criminal Conspiracy

Offence of criminal conspiracy is committed when two or more persons agree to do or cause to be
done an illegal act or a legal act by illegal means.22 The basic ingredients of the offence of criminal
conspiracy are:
(i) An agreement between two or more persons;
(ii) The agreement must relate to doing or causing to be done either
(a) an illegal act; or (b) an act which is not illegal in itself but is done by illegal means.

It is, therefore, plain that meeting of minds of two or more persons for doing or causing to be done an
illegal act or an act by illegal means is sine qua non of criminal conspiracy. Section 120-B of IPC
provides for punishment for an offence of criminal conspiracy. Condition precedent for holding the
accused persons to be guilty of a charge of criminal conspiracy must, therefore, be considered on the
anvil of the fact which must be established by the prosecution viz. meeting of minds of two or more
persons for doing or causing to be done an illegal act or an act by illegal means.23

[3.1.1] Agreement as a necessary element of Criminal Conspiracy

Provided that no agreement except an agreement to commit an offence shall amount to a criminal
conspiracy unless some act besides the agreement is done by one or more parties to such agreement in
pursuance thereof.24 A mere suspicion, devoid of any direct or circumstantial evidence, establishing
prior meeting of minds, cannot be a ground for conviction for the offence of criminal conspiracy. 25 It
is however essential that the offence of conspiracy requires some kind of physical manifestation of
agreement. The express however need not be proved. Nor actual meeting of two persons is necessary.
Nor is it necessary to prove the actual words of communication.

22
State of Tamil Nadu v. Nalini [AIR 1999 SC 2640]
23
Mir Nagvi Askari vs. Central Bureau Of Investigation
24
Yogesh Alias Sachin Jagdish Joshi v. State Of Maharashtra
25
(1995) 1 SCC 142.
17
The evidence as to transmission of thoughts or sharing the unlawful design may be sufficient. The
relative acts or conduct of the parties must be conscientious and clear, to mark their concurrence as to
what should be done. However, the concurrence cannot be inferred by a group of irrelevant facts,
artfully arranged, so as to give an appearance of coherence. The innocuous, innocent and inadvertent
events and incidents should not enter the judicial verdict.26 Innocuous, innocent or inadvertent acts and
events should not enter the judicial verdict. The court must be cautious not to infer agreement from a
group of irrelevant facts carefully arranged so as to give an assurance of coherence.27

Since more often than not conspiracy would be proved on circumstantial evidence, four fundamental
requirements as laid down:
 that the circumstances from which the conclusion is drawn be fully established;
 that all the facts should be consistent with the hypothesis;
 that the circumstances should be of a conclusive nature and tendency;
 that the circumstances should, by a moral certainty, actually exclude every hypothesis but the
one proposed to be proved.”28

The manner and circumstances in which the offences have been committed and the accused persons
took part are relevant. For the said purpose, it is necessary to prove that the propounded had expressly
agreed to it or caused it to be done, and it may also be proved by adduction of circumstantial evidence
and/or by necessary implication.29“The gist of the offence of conspiracy then lies, not in doing the act,
or affecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in
inciting others to do them, but in the forming of the scheme or agreement between the parties.
Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se enough.” 30

[3.2] Unlawful Assembly

An assembly of five or more persons becomes as unlawful assembly if the common object of the
persons composing that assembly is one or more of those mentioned in Section 141 IPC. If the
common object of the assembly is not one of those five enumerated in Section 141 IPC it cannot be
designated as unlawful.31 In other words, an assembly of five or more persons actuated by, and
entertaining one or more of the common objects specified by the five clauses of Section 141, is an
unlawful assembly.32 "What has to be proved against a person who is alleged to be a member of an
unlawful assembly is that he was one of the persons constituting the assembly and he entertained

26
AIR 1988 SC 1883; 2001 CrLJ 978 (SC).
27
People v. Lauria 251, California APP 2 (d) 471
28
Queen Empress v. Hoshhak, 1941 Allahabad ALJR 416
29
Mohammad Usman Mohammad Hussain Maniyar v. State of Maharashtra, (1981) 2 SCC 443
30
Kehar Singh v. State (Delhi Administration), (1988) 3 SCC 609
31
State of Bihar v Nathu Pandey and Others
32
Anil Rai v State of Bihar
18
along with the other members of the assembly the common object as defined by Section 141 IPC.”

[3.2.1] Private Defense does not constitute under Unlawful Assembly

The assembly could not be designated as an unlawful assembly if its object was to defend property by
the use of force within the limits prescribed by law. The exercise of the right of private defense
whether of person or property is not covered by any of the objects enumerated in Section 141 IPC.
The right of private defense is a right recognized in Section 96 IPC. Thus, the exercise of the right of
private defense is not an offence defined anywhere in the Penal Code.

Right of Private Defense a State is under duty to protect life, limb and property of its people. At the
same time, a State cannot extend its help to all and in all cases. Therefore, every person has a right to
defend his `own' body and the body of `other' person against any offence affects the human body, and
his `own' property and the property of `other' person movable or immovable. This right is based on the
principle that it is the primary duty of a person to help him. Crimes committed during communal
violence are: murder, grievous hurt, kidnapping, abduction, rape, looting, arson, etc. Against these
crimes the right of private defence is absolutely necessary. It has be established that when a person
were under such grave apprehension about the safety of their life and property that retaliation to the
extent done was absolutely necessary. Right of private defense has been rightly discarded. 33

It is humbly submitted that in the case of Sonelal v. State,34 The Apex Court held that right of private
defense begins when there is a reasonable apprehension about injury to human body. However, mere
intimidation will not constitute a valid ground for exercise of the right of private defense. To attract
the principle of private defense valid circumstances leading to imminent danger and valid
apprehension of bodily harm or impending threat to life is needed. The right to private defense is
available only to one who is suddenly confronted with the necessity of averting an impending danger
not of self creation35. The right to protect one’s own person and property against the unlawful
aggressions of others is a right inherent in man. The right of private defense need not necessarily be
exercised for the defense of one's own person; it can be exercised for the defense of the person of
another. So long as an assembly of persons is acting in exercise of the right of private defense it
cannot be an unlawful assembly.36 An assembly though lawful to begin with many in the course of
events become unlawful. So long as the accused persons were acting in exercise of right of private
defense, their object was not unlawful and so there was no unlawful assembly but once they exceeded
the right, the assembly ceased to be lawful and became an unlawful assembly.

33
Raj pal vs state of harayana ,(2006)9 SCC 678;
34
AIR 1981 SC 1379.
35
Darshan singh vs. State of Punjab, (2010)2 SCC 333
36
Kashiram & others v state of MP
19
An assembly of persons, whatever is their number, acting in the exercise of the right of private
defense whether of person or property, cannot be said to commit an offence.37 In State of Bihar v.
Nathu (supra), it could not be ascertained as which member of the assembly while exercising the right
of private defense exceeded it and inflicted the fatal wounds to the deceased. That none of the accused
could be convicted with the aid of section 34 or 149 IPC. People who were in the exercise of lawful
rights cannot be held to have been members of an unlawful assembly, nor can-that assembly become
unlawful by reason of their repelling the attack made upon them neither by persons who had no right
to obstruct them, nor by reason of their exceeding the lawful use of the right they.38

[3.2.3] Common Object- necessary element of Unlawful Assembly

If an offence is committed by any member of an unlawful assembly in prosecution of the common
object of that assembly, or such as the members of that assembly knew to be likely to be committed in
prosecution of that object, every person who, at the time of the committing of that offence, is a
member of the same assembly, is guilty of that offence. The above provision makes it clear that before
convicting accused with the aid of Section 149 IPC, the Court must give clear finding regarding nature
of common object and that the object was unlawful.

In the absence of such finding as also any overt act on the part of the accused persons, mere fact that
they were armed would not be sufficient to prove common object. Mere presence in an unlawful
assembly cannot render a person liable unless there was a common object and he was actuated by that
common object and that object is one of those set out in Section 141 IPC.

37
State of Bihar v. Nathu ((1969) 2 SCC 207 AIR 1970 SC 27),
38
Kunja Bhuniya And Another… v. King Emperor….
20
ISSUE IV: WHETHER THE HIGH COURT IS RIGHT IN ACQUITTING ALL THE
ACCUSED?

It is humbly submitted before this Hon‟ble Apex Court that the circumstantial evidence doesn't forms
a complete chain, link by link, to establish the criminal conspiracy and nor the necessity for possession
of explosive substances would reveal that offence is made out as discussed in 2nd and 3rd issue. Hence
it is proven beyond a reasonable doubt that the offence was indeed not committed by the accused in
the case at hand. Thus the accused person is falls within the shield of take private defense. Therefore
the High Court right in acquitting all the accused

[4.1] Accused Was Acting In Private Defense:

It is humbly submitted before the Hon’ble court that there is a valid invoke of private defense under
sections 96 and 102 of Indian penal code.1860.

[4.1.1] Circumstances Made Out Under Section 96

According to the section 96 of Indian Penal Code, “Nothing is an offence which is done in the
exercise of private defense.” Private defense has been used by the defense. Right to private defense is
a valuable right and it has been recognized in all civilized and democratic societies within certain
reasonable limits. The basic principle underlying the doctrine of private defense is when an individual
or his property is faced with a danger and immediate aid from the state machinery is not readily
available, that individual is entitled to protect himself and his property39.

The defense humbly submits that the circumstances under section 102, of Indian penal code. Section
102 of Indian Penal Code states that the right of private defense of the body commences as soon as a
reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence
though the offence may not have been committed; and it continues as long as such apprehension of
danger to the body continues40. Private defense was warranted and reasonable force was used in the
instant matter as there is continuous apprehension of danger and no halt till the end till 25 th July.
According to section 97 of Indian penal code states that every person has right of private defense in to
fold:
a) Right of private defense to body.
b) Right of private defense to property(movable or immovable).
The right of self defense of property commences the moment when there is a reasonable apprehension
of danger of the property or person, it is not necessary that the harm should take place as a mere
apprehension shall justify under section 102 of Indian Penal Code.
39
Dharam singh vs. State of Haryana AIR 2007 SC 397;2006 AIR SCW 6298
40
Sekhar vs stateAIR 2002 SC 3667
21
Here in the instant case, the accused possessed the explosives in good faith for the purpose of repelling
unlawful aggressions, the legislature clearly intended to arouse and encourage the manly spirit of self
defense amongst the citizens, when faced with grave danger41.

The right of private defense as defined by law, must be fostered in the citizens of every free country
and it is perfectly clear that if a man is attacked he need not run away and he would be perfectly
justified in the eye of law if he holds his ground and delivers a counter attack to his assailants
provided always, that the injury which he inflicts in self defense is not out of proportion to the injury
with which he was threatened.42 In the instant case it is clear that the accused had faced the imminent
danger and rightfully exercise the right of private defense as a last option. Bentham stated “It is a
noble movement of the heart, that indignation which kindles at the sight of the feeble injured by the
strong .It is noble movement which makes us forget our danger at the first cry of distress…it concerns
the public safety that every honest man should consider himself as the natural protector of every
other”.

Right to private defense of person and property is recognized in all free, civilized, democratic societies
within certain reasonable limits. Those limits are dictated by two considerations:
 That the same right is claimed by all other members of the society.
 That it is the state which generally undertakes the responsibility for the maintenance of law
and order.

[4.2] Plea Of Private Defense:

In the instant case it is valid that the accused approached the court by the plea of private defense. It is
not necessary for the accused to plead in so many words that he acted in self defense. If the
circumstances show that the right of private defense legitimately exercised, it is opened to the court to
consider such plea43. It is humbly submitted before the court that in the case of Kasam Abdulla hafiz v.
State of Maharashtra.44 It is of course true that in law a plea of right of private defense would be
available to the accused even though the plea has not been taken by the accused. But the materials on
record shall justify It is of course true that in law a plea of right of private defense would be available
to the accused such consideration .But since it is apprehension of the accused, which could be material
to sustain a plea of right of private defense, when the accused himself chose to be examined as a
witness and has not uttered a word about such apprehension, it would be difficult to sustain the plea.

41
Dharshan singh vs state of Punjab. AIR 2010 SC 1212.
42
Mahndi v. state (1929) 31 PLR 621;
43
V. Subaramani and ANR Vs. State of TN, (2005) 10 SCC 358: AIR 2005 SC 1983
44
Kasam Abdulla hafiz v. State of Maharashtra AIR 1998SC 1451
22
In the case of Bahadur Singh v. State of Punjab45, It has been held in number of cases that the accused
can even rely on the circumstances and admissions made by the witnesses, in support of his plea
without even setting up a specific plea. In the instant case the prosecution failed to explain the chain of
circumstantial events which raised the benefit of doubt for the accused before the court. Even if an
accused does not plead self defense, it is open to the court to consider such plea if the same arises
from the material of record. The burden of establishing that plea is on the accused and, that burden can
be discharged by showing preponderance of probabilities in favor of that plea, on the basis of material
of record. 46

[4.3] Failure Of Public Authorities:

It is humbly submitted before this Hon’ble Court, In the case of Jai Dev v. State of Punjab47 it is
stated that it is impractical for the state to protect every individuals body and property. So the law
entitles him to secure his victory and to quell the imminent threat by using necessary force. In the
instant case it is clearly stated that the accused made phone calls to the police but they did not
responded to it. This gave the accused to exercise the right of private defense to protect and secure
their own property.

It is humbly submitted that before the Hon’ble court that an act of self defense cannot be weighted in
golden scales48 as a person whose property is in immediate peril of harm cannot be expected. The law
of private defense itself states that there is no right of private defense available unless the situation
was so urgent that there was no time to have recourse to be protection of public authorities. The
urgency of the situation must naturally depend upon certain facts and circumstances. These
circumstances may include: The offences caused by the accused shall be of nature which
automatically creates the reasonable apprehension of threat and danger in mind of a person for which
he shall take the protection of public authorities.

In case of Darshan Singh Vs State Of Punjab49 guidelines regarding right of private defense was
stated:
 Self –help is the basic rule of law.
 When there is an imminent threat or danger to the life of a person the right of private defence
can be exercised.
 Reasonable apprehension of threat can also give rise to the right of private defence.

45
Bahadur Singh v. State of Punjab, AIR 1993 SC 70.
46
State of uttarpradesh v.lakshmi, (1998)4 scc 336
47
Jai dev v. State Of Punjab. AIR 2010, SC 1212.
48
Nelson R.A INDIAN PENAL CODE
49
CRIMINAL APPEAL NO. 1057 of 2002

23
 Proportionate force must be used by the person while exercising the right of private defence.
The accused is not required to prove the presence of private defense beyond the reasonable doubt.
Immediate danger to person or property that it is not immediately protected would be lost by the time
the protection from public servants is obtained. In the instant case it is evident that the life and
property of accused are at grave danger therefore he can’t simple wait for the protection from public
authorities when there is a clear apprehension of looting of property and therefore having a stock of 10
lakh rupees intensifies the depth of need of private defense. Reasonable apprehension of danger to
person or property arises out of committed , attempted or threatened crime. The act was going to
affect person and property and justifies the particular injury inflicted.

In the case of Ram Rattan V. State Of Uttar Pradesh, it is stated that where the alleged harm is
already done, again their remedy is to take recourse to law and not take law into their hands 50, but in
the instant case, the clear cut evidence itself certifies that the Accused made phone calls to the police
and that there is no response from the police. From the evidence stated it is apparently clear that there
is failure of public authorities in exercise of their duty in the way of not responding to the calls and
thus this give the last option for accused to protect him from imminent danger and shows his
innocence and no intension of commission of crime. Thus it is clear that the failure of public
authorities can’t be compared with the intention of accused.

50
Ram Rattan v. State of Uttar Pradesh AIR 1977 SC 619, (1977) Cr LJ 619.
24
 PRAYER

Wherefore, in light of the facts stated, issues raised, arguments advanced, and authorities cited, the
council for the Respondent humbly prays before this Hon’ble Court that it may be pleased to declare
that:

 The SLP filed by the Appellant is not maintainable.

 The accused are not guilty of charges under sections 4 & 5 of the Explosive Substance Act.
 The accused are not guilty of charges under sections 120B, 144 & 143 of Indian Penal Code,
1860

AND/OR

AND to pass any such appropriate order or orders that this Hon’ble Court may deem fit and proper in
the Circumstances of the Case and in the Interests of Justice.

And for this act of kindness, the Counsel for the Respondent shall be duty bound forever pray.

Place:

Date:

-Sd/-
(Counsel for the Respondent)

25