TC - GG

SIR SYED & SURANA & SURANA ATIONAL CRIMINAL MOOT

COURT LAW COMPETITION 2018.

IN THE HON’BLE HIGH COURT OF JUDICATURE AT STARK

Criminal Appeal No. …/2018

IN THE MATTER OF:

Shaam Savea Angel ...………………………………………………………………..Appellant

v.

The State of Stark Pradesh ...………………………………………………………Respondent

Clubbed with

Writ Petition No. (C) …/2018

Ajeevan Medical Research Trust ……………………............................……………Petitioner

v.

Union of Winterfell ………………………………………………………………..Respondent

MOST RESPECTFULLY SUBMITTED TO THE HON’BLE HIGH COURT OF

JUDICATURE AT STARK

Written Submission on the behalf of Respondent

Drawn and Filed by the Counsel for the Respondent

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS ............................................................................................... IV

INDEX OF AUTHORITIES .................................................................................................. V

STATEMENT OF JURISDICTION ................................................................................ VIII

STATEMENT OF FACTS ................................................................................................... IX

ISSUES RAISED .................................................................................................................. XII

SUMMARY OF ARGUMENTS ....................................................................................... XIII

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

1. WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW,

THE SPECIAL COURT ERRED IN HOLDING THAT THE APPELLANTS LIABLE UNDER

§20(B)(II)(C) , §21(C), §23(C), §25 OF NDPS ACT, 1985 AND UNDER §121 OF W.P.C AND

UNDER § 20, § 39, § 40 OF THE UNLAWFUL ACTIVITIES PREVENTION ACT, 1967? ............ 1

1.1. CHARGES UNDER NDPS, ACT ATTRACTED ..................................................................... 2

1.2. CHARGE UNDER SECTION 121 OF W.P.C IS ATTRACTED ................................................. 5

1.3. NATURE OF WINTERFELL LIBERATORS AND SSA .............................................................. 6

2. WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW,

THE JUVENILE JUSTICE (CARE AND PROTECTION) ACT, 2015 AMENDING THE JUVENILE

JUSTICE (CARE AND PROTECTION) ACT, 2000 TO BE HELD CONSTITUTIONALLY VALID OR

NOT? ....................................................................................................................................... 8

2.1. THAT THE ACT WAS THE NEED OF THE HOUR .................................................................... 9

2.1.1. That the Act was passed to curb menace in the society ................................. 10

2.1.2. That a consultative process preceded the Act ................................................ 11

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2.2. THAT THE ACT IS CONSISTENT WITH ARTICLE 14 AND ARTICLE 21 .................................. 11

2.2.1. That the classification made is reasonable...................................................... 12

2.2.2. That the procedure established to try the child as an adult is appropriate. 13

2.2.2.1. Child friendly atmosphere along with Reformation and Rehabilitation ...... 13

3. WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW,

THE P.I.L. FILED BY N.G.O. AJEEVAN MEDICAL TRUST CHALLENGING THE

CONSTITUTIONAL VALIDITY OF THE NDPS ACT, 1985, IS MAINTAINABLE OR NOT? ........ 15

3.1. SEC. 35 AND 54 WHEN ATTRACTED ............................................................................... 15

3.2. NOT UNCONSTITUTIONAL WHEN FAIR HEARING AND RIGHT TO REBUT PROVIDED ........ 18

3.3. REQUIREMENT OF SEC. 35 OF NDPS ACT, 1985. .......................................................... 19

4. WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW,

THE P.I.L. FILED BY N.G.O. AJEEVAN MEDICAL TRUST CONTENDING THAT TRIAL OF

JUVENILES FOR HEINOUS CRIMES AS ADULTS WAS IN VIOLATION OF INTERNATIONAL

OBLIGATIONS OF WINTERFELL IN THE UNITED NATION CONVENTIONS ON THE RIGHTS

OF THE CHILD, BEIJING RULES ETC. IS MAINTAINABLE OR NOT ? ...................................... 20

4.1. JUDICIAL INTERPRETATION ON ENFORCEMENT OF INTERNATIONAL INSTRUMENTS .......... 21

4.2. THAT THE ACT IS CONSISTENT WITH INTERNATIONAL LAW .............................................. 22

4.3. THE ACT DOES NOT VIOLATE ARTICLE 40 OF UNCRC ................................................... 22

4.3. THAT THE ACT DOES NOT VIOLATE ANY OTHER ARTICLE OF UNCRC ............................. 23

4.4. THAT THE ACT IS SUPPORTED BY BEIJING RULES, 1985 ................................................. 23

4.5. THAT THE OTHER COUNTRIES ALSO HAVE SIMILAR LAWS ................................................. 24

4.6. THAT THE ACT IS A COMPREHENSIVE LEGISLATION ........................................................ 25

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4.7. INTERPRETATION IN THE LIGHT OF INTERNATIONAL TREATIES ........................................ 30

PRAYER ............................................................................................................................... XV

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LIST OF ABBREVIATIONS

S. No. ABBREVIATIONS FULL FORM

1. & And

2. AIR All India Reporter

3. Art Article

4. HC High Court

5. Hon‘ble Honourable

6. Ors Others

7. ¶ Paragraph

8. r/w Read with

9. SC Supreme Court

10. SCC Supreme Court Cases

11. SCJ Supreme Court Journal

12. SCR Supreme Court Reporter

13. Sec, § Section

14. v. Versus

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INDEX OF AUTHORITIES

CASES

Abdul Rashid Ibrahim Masruri v. State of Gujarat, 1 (2000) CCR 155(SC) 17

ADM Jabalpur v. Shiv Kant Shukla 30

Ankur Chawla v. CBI (MANU/DE/2923/2014) 7

Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 8

Ashutosh Gupta v. State of Rajassthan, AIR 2002 SC 1533 12

Balbir Singh v. State of Orissa, 1995 CrLJ 1762 (Ori). 5,15,18

DTC v. Mazdoor Congress, 1991 Supp (1) SCC 600 15

Dula Singh v. Emperor, AIR 1928 Lah 272 17

EKTA Shakti Foundation v. Govt. of NCT of Delhi, AIR 2006 SC 2609 10

Essa Anjum Abdul Razak Memon vs. State of Maharashtra, 2013 13 SCC 1 15

Gaurav Kumar v. State of Haryana, (2015) 4 SCALE 531 10

GVK Industries Ltd. v. ITO, (2011) 4 SCC 36. 29

Harjit Kaur v. State of Punjab, 2008 (2) E.F.R. 140 (P.&H.). 19

Jasbir Singh alias Jassa v. State of Hrayana, 2008 (3) R.C.R. (Cr.) 42 (P.&H.). 20

Jinabhai Kalabhai Rajput v. State of Gujarat, 1998 Drugs Cases 388 (DB). 16

Jolly Verghese v. Bank of Cochi, AIR 1980 SC 470 28

K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 29

Kalekhan v. State of M.P., 1990 CrLJ 1119 (MP). 16

Karaj singh v. State of Punjab, 2010 Cr.L.J.145(P.&H.) 19

Kerela State Electricity v. Sharat Chandra, AIR 2009 SC 191 9

Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 31

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M.G. Badappanavar v. State of Karnataka, AIR 2001 SC 260 13

M.P. Narayan Menon, In re, 1925 Mad 106 6

Madras City Wines Merchant‘s Association v. State of T.N., (1994) 5 SCC 509 9

Maganlal v. Emperor, AIR 1976 Nag 173 6

Matlub Khan v. State of Maharashtra, 1993 CrLJ 3624 (Bom.) 16

Megh Singh v. State of Punjab, 2003 Cr. L.J.4329(S.C.) 19

Naru Mazumdar v. State of West Bengal, (2007) 1 Cal. L.T. 89 (Cal.). 19

National Legal Services Authority v. Union of India and Others, (2014) 1 SCC 1 22

Radhakishan Parashar v. State, 1988(2) Crimes 298 4

Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar & Others, AIR 1958 SC 538. 12

Ram Phal Prem Singh v. State, 1997(1) E.F.R. 266 4

Re, Prabhulal, 1994 (1) Crimes 710 18

Revatram Ram Ratan Chand Thakur v. State of Goa, 1996 Drugs cases 155. 4

Saiyyad Mohd. Saiyad Umar v. State of Gujarat, 1995 (2) CrLR 1315 (SC). 17

Smt. Heena Kausav v. Competent Authority, AIR 2008 SC 247 12

Soodha Somana v. State, 1991 Cr. L.J.2185 16

Soorajmal v. State of M.P., 1992 CrLJ 3206 (MP). 18

State of Gujrat V. Abdul Raid Ibrahim Mansuri, 1991 Cr. L.R. 101 (Guj). 18

State of gujurat v. abdul rasid Ibrahim Mansuri, 1991 Cr. L. R. 101 16

State of Kerela v. Arun Valenchary, 2002 Cr LJ 2512 (Ker). 17

State of W.B. v. Kesoram Industries Ltd., (2004) 10 SCC 201 30

Subramanian Swamy v. Raju Thr. Member Juvenile Justice Board and Anr., 24

(2014) 8 SCC 390

Supdt. And Remeberancer of Legal Affairs v. Anil Kumar Bhunja, (1979) 4 SCC 17

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274

Tractor Export, Moscow vs M/S. Tarapore & Company & Anr, AIR 1971 SC 1 28

Vishaka v. State of Rajasthan (1997) 6 SCC 241 30

Vishakha v. State of Rajasthan, AIR 1997 SC 3011 10

Xavier v. Canara Bank Ltd, 1969 KLT 927 28

BOOKS

DEBJYOTI DE, GUIDE TO NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES, 5,16,17

2009 (2nd Ed.) pf 326

DR. SUBHASH C. KASHYAP, CONSTITUTIONAL LAW OF INDIA (Universal Law 12

Publishing Pvt. Ltd., New Delhi 2008).

H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA (4th ed. Universal Law 9

Publishing Co. Pvt. Ltd., New Delhi 2004).

OPPENHEIM'S INTERNATIONAL LAW [ Vol. 1, Peace 9th Edn., p. 125, 9 (Longman 29

Group, UK, 1992)

OTHER AUTHORITIES

Justice Raghavendra Kumar, The case for reduction of the age of 11

juvenility,Criminal Law Journal, August, 2015

Legislative Brief The Juvenile Justice (Care & Protection of Children) Bill, 2014 26

Towards a comprehensive Juvenile Justice law‖ The Hindu 14th July 2014 23

Two Hundred Sixty Fourth Report The Juvenile Justice (Care and Protection of 11

Children)

United Nation Convention on the Rights of the Child. India ratified UNCRC on 22

11 December, 1992

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STATEMENT OF JURISDICTION

The Respondent humbly submits to the jurisdiction of the Hon‘ble High Court of Stark

Pradesh invoked by the appellants against the Order of the Special Court under Section

101(5) of The Juvenile Justice (Care and Protection of Children) Act, 2015 and under Article

226 of the Constitution of India Act 1949 but reserves its right to revoke the same.

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STATEMENT OF FACTS

TIMELINE OF EVENTS

2.01.2016 Mr. Jendri Singh lodged an F.I.R. u/s 154 Cr.P.C. alleging illicit

activities of SSA with Republic of Meereen in the veil of spiritual

activities. It is pertinent to mention here that Republic of Meereen

has faced the allegations of sponsoring drug trade in Winterfell,

especially in Stark Pradesh as it borders republic of Meereen.

28.01.2016 The I.O. Mr. Jamie Sharma raided Manav cult properties and found

nothing incriminating.

9.02.2016, 11:25 P.M.  The I.O. Mr. Sharma seized 90 kilograms of cannabis in the

courtyard of NZT-CANCER unit referred to as UNIT-A. The

Panchanama was made by I.O. at 5:15, Mr. Peter Bailesh and Mr.

Ashok Solemon, Mr. Addharth Singh (local resident), Mr. Khal

Singh (local resident government employee) signed as witnesses in

the panchnama.

 Within two kilometres of Unit-A other two units (herein

mentioned as UNIT-B, UNIT-C) of NZT-CANCER were also

raided and total of 100 kilograms of cannabis from both the units

was seized.

26.02.2016 Mr. Birpal Singh lodged an F.I.R. u/s 154 of Cr.P.C. against SSA

for carrying out the racket of illegal drugs and raising funds for the

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terrorist and threatening the security and integrity of Winterfell.

03.03.2016 SSA was arrested by NIA near the border of Meereen and

Winterfell with 20 million Winterfellian dollars.

PROCEEDINGS

Charges framed against SSA were:

1. U/s. 20(b)(ii)(C) - Punishment for contravention in relation to cannabis plant and

cannabis.

2. U/s. 21(c) - Punishment for contravention in relation to manufactured drugs and

preparations.

3. U/s. 23(c) - Punishment for illegal import in to India, export from India or

transhipment of narcotic drugs and psychotropic substances.

4. U/s 25 - Punishment for allowing premises, etc., to be used for commission of an

offence of NDPS Act, 1985 and –

5. U/s 121 of W.P.C. - Waging, or attempting to wage war, or abetting waging of war,

against the Government of India.

6. U/s 20 – Punishment for being member of terrorist gang or organisation.

7. U/s 39 - Offence relating to support given to a terrorist organisation.

8. U/s 40 - Offence of raising fund for a terrorist organisation of Unlawful Activities

Prevention Act, 1967.

SSA was held guilty of all the charges framed before the special court. SSA as appellants has

approached to the Hon‘ble High Court of Stark Pradesh, challenging the validity of 2015

amendment to the Juvenile Justice Act, 2000.

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P.I.L. was filed by N.G.O Ajeevan Medical Research Trust challenging the constitutional

validity of N.D.P.S Act, 1985, precisely laying stress on elimination of presumption of

innocence in the impugned act.

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ISSUES RAISED

ISSUE I

Whether, on the facts and in the circumstances of the case and in law, the Special Court erred

in holding that the appellants liable under § 20(b)(ii)(C) , § 21(c), § 23(c), § 25 Of NDPS Act,

1985 and under § 121 of W.P.C and under § 20, § 39, § 40 of The Unlawful Activities

Prevention Act, 1967?

ISSUE II

Whether, on the facts and in the circumstances of the case and in law, the Juvenile Justice

(Care and Protection) Act, 2015 amending the Juvenile Justice (Care and Protection) Act,

2000 to be held constitutionally valid or not?

ISSUE III

Whether, on the facts and in the circumstances of the case and in law, the P.I.L. filed by

N.G.O. Ajeevan Medical Trust challenging the constitutional validity of the NDPS Act, 1985,

is maintainable or not?

ISSUE IV

Whether, on the facts and in the circumstances of the case and in law, the P.I.L. filed by

N.G.O. Ajeevan Medical Trust contending that trial of juveniles for heinous crimes as adults

was in violation of International obligations of Winterfell in the United Nation Conventions

on the Rights of the child, Beijing rules etc. is maintainable or not ?

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SUMMARY OF ARGUMENTS

1. Whether, on the facts and in the circumstances of the case and in law, the Special

Court erred in holding that the appellants liable under § 20(b)(ii)(C) , § 21(c), § 23(c), §

25 Of NDPS Act, 1985 and under § 121 of W.P.C and under § 20, § 39, § 40 of The

Unlawful Activities Prevention Act, 1967?

It is humbly contended that the Special Court was right in holding the appellants liable under

§ 20(b)(ii)(C) , § 21(c), § 23(c), § 25 Of NDPS Act, 1985 and under § 121 of W.P.C and

under § 20, § 39, § 40 of The Unlawful Activities Prevention Act, 1967. The offences are

meted out prima-facie due to existing circumstances as per the facts. Moreover, there lies the

presumption of existence of culpable mind u/s 35 of NDPS Act.

2. Whether, on the facts and in the circumstances of the case and in law, the

Juvenile Justice (Care and Protection) Act, 2015 amending the Juvenile Justice (Care

and Protection) Act, 2000 to be held constitutionally valid or not?

It is humbly contended before the Hon‘ble High Court of Stark Pradesh that there are no valid

grounds to challenge the constitutional validity of the act of 2015 amending the Juvenile

Justice (Care and Protection) Act, 2000. Furthermore, it is contended that the said amendment

is not inconsistent with the Constitution of India or any other law in force. Even if the

appellant/petitioner challenges the validity of the law currently in force and incriminating the

acts of the petitioner, the appellant/petitioner cannot escape the charges because the law does

not operate ex-post facto.

3. Whether, on the facts and in the circumstances of the case and in law, the P.I.L.

filed by N.G.O. Ajeevan Medical Trust challenging the constitutional validity of the

NDPS Act, 1985, is maintainable or not?

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It is humbly submitted before the Hon‘ble High Court that the P.I.L. be disposed-off at the

very first instance due to non-existence of any ground for challenging the NDPS Act,1985.

The presumption of the existence of culpable mental state u/s 35 of NDPS Act does not

violate or is not ultra-vires of any provision contained in Constitution of India. Therefore, the

petitioner holds no locus-standi to appear before this Hon‘ble Court.

4. Whether, on the facts and in the circumstances of the case and in law, the P.I.L.

filed by N.G.O. Ajeevan Medical Trust contending that trial of juveniles for heinous

crimes as adults was in violation of International obligations of Winterfell in the United

Nation Conventions on the Rights of the child, Beijing rules etc. is maintainable or not?

It is humbly submitted before this Hon‘ble Court that no violation of any international

obligation has been done. The aims and objectives of all the treaties are maintained and kept

in.

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ARGUMENTS ADVANCED

1. WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE

SPECIAL COURT ERRED IN HOLDING THAT THE APPELLANTS LIABLE UNDER

§20(B)(II)(C) , §21(C), §23(C), §25 OF NDPS ACT, 1985 AND UNDER §121 OF W.P.C

AND UNDER § 20, § 39, § 40 OF THE UNLAWFUL ACTIVITIES PREVENTION ACT, 1967?

On 9.02.2016 around 11:25 P.M. the research unit of NZT-CANCER, was raided in search of

contraband material by the I.O. Mr. Jamie Sharma, who seized 90kgs of Cannabis from a

truck in the courtyard of Unit-A. On the same night other two units were raided by the police,

where 50kgs of Cannabis from each unit were seized by the police. 1 The Panchanama for the

seizure at Unit A was made at 5:15 A.M. to which four people namely, Mr. Peter Bailesh,

Mr. Ashok Solemon, Mr. Addharth Singh, and Mr. Khal Singh signed as witnesses. It is

pertinent to mention that the research program for NZT- CANCER is entirely funded by

Manav cult which is headed by SSA, who is a renowned God woman and has at least 10

million followers all over the world out of which 8 million reside in Stark Pradesh.2

After the raids the police conduct search for arresting SSA, however she absconded and could

not be arrested on the same night.3 Video evidence featuring SSA interacting with the

members of Winterfell liberators was surfaced by credible media of the country and the

Special Court has taken the cognizance of Video evidence and acted upon the existing law.4

1
Para 9, Moot Proposition.
2
Para 2, Moot Proposition.
3
Para 12, Moot Proposition.
4
Para 13, Moot Proposition.

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On 3rd March 2016 SSA was arrested by NIA near border of Meereen and Winterfell with 20

million Winterfellian dollars.5

1.1. CHARGES UNDER NDPS, ACT ATTRACTED

According to the NDPS Act, 1985 sec 20(b)(ii)(C), which provides for the punishment with

regard to the contravention of the provisions of this act involving production, manufacture,

sale, possession, purchase, transport, import inter-state, export inter-state, or use of cannabis

and involving and seizure of commercial quantity be punished with rigorous imprisonment

for a term which shall not be less than 10 years which may extend to 20 yrs. and shall also be

liable to fine which shall not be less than 1 lac rupees but may extend to two lac rupees.

Provided the court may for reasons recorded in judgement impose a fine exceeding two lac

rupees.

As per sec. 21(c) of the said Act whoever in contravention of any provision of NDPS Act,

1985 or any rule or order made or condition of licence granted thereunder manufactures,

possesses, purchases, transports, imports inter-state, exports inter-state, or uses any

manufactured drugs or any preparation containing any manufacture drugs shall be punishable,

where the contravention involves commercial quantity, such person shall be punishable with

rigorous imprisonment for a term which shall not be less than 10yrs. but may extend to 20

yrs. and shall also be liable to fine not less than 1 lac rupees but may extend to 2 lac rupees

and the court may also for the reasons recorded in judgement impose a fine exceeding 2 lac

rupees.

As per sec. 23 (c) of the said act whoever in contravention of any provision of NDPS Act,

1985 or any rule or order made or condition of licence granted thereunder imports into India

5
Para 15, Moot Proposition.

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or exports from India or tranship any narcotic drugs or psychotropic substance shall be

punishable, where the contravention involves commercial quantity, such person shall be

punishable with rigorous imprisonment for a term which shall not be less than 10yrs. but may

extend to 20 yrs. and shall also be liable to fine not less than 1 lac rupees but may extend to 2

lac rupees and the court may also for the reasons recorded in judgement impose a fine

exceeding 2 lac rupees.

According to Sec. 25 of the said Act, whoever being the owner or occupier or having the

control or use of an house, room, enclosure, place, space, animal or conveyance knowingly

permits it to be used for the commission by any other person of an offence punishable under

provisions of this Act shall be punishable with punishment provided for that offence. It is

pertinent to mention the followership of SSA which makes her a person of mature and

reliable character which shall be taken into consideration as per sec. 14 of the Indian

Evidence Act, 1972 i.e. relevancy of facts showing existence of State of Mind, or of body or

of bodily feeling. Moreover, upon seizure of contraband SSA absconded and could not be

arrested, making her subsequent conduct to the offence suspicious of culpability, as per sec. 8

of the Indian Evidence Act, 1972, this shows she had knowledge of the consequences of her

acts, only therefore she absconded.

The above mentioned are the reasons taken into account by the JJ board for making an

assessment u/s. 15 of the Juvenile Justice (Care and protection) Act, 2015. Due to the heinous

nature of charges faced by SSA, she was decided to be tried as an adult by the board, thereby

making it a matter of Children‘s Special Court empowered in this behalf. The special court

has held the accused to be guilty of the Charges faced by her the reason for which is

mentioned hereunder.

There exists a presumption of existence of culpable mind in Sec. 35 of the NDPS Act, 1985

r/w Sec. 114 of the Indian Evidence Act, 1972, therefore the burden of proof was upon SSA

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to prove herself not guilty of the charges framed. No evidence was provided by the defence in

the special court, therefore the accused was held guilty based upon the circumstantial

evidence of the case as, per the investigation of Police.

In a landmark case law of Sustainability of conviction in which the appellant was found in

possession of 30 gms of Charas, a substance which falls under the definition of Cannabis u/s

2(iii)(a) of the act. The Appellant failed to produce any evidence to establish that he was in

lawful possession of the said substance and therefore, in view of the presumption u/s 54 of

NDPS Act, 1985, it is to be held that he has committed the offence under 20(b)(iii) of the

act.6 Similar view was taken in similar cases of Revatram7 and also in Ram Phal’s8 case.

It is clear from the facts that Flowers and resins of Hybrids, Sativa and Indica were seized

and produced before the Special Court.9 Thereby, establishing the clear nature of the offence

being meted out u/s 21 of NDPS, Act, 1985.

With regard to charge under sec 23 of NDPS, Act the basis upon which the charge rests is the

seizure of drugs was made in a truck which was alleged to be trafficked from Republic of

Meereen by a terrorist group, Winterfell Liberators, a declared terrorist organisation in

Winterfell.. It is also submitted that it is undisputed fact that she met with terrorist who

played important role in illicit trafficking of drugs. Where in furtherance of the act it is also

read in consonance of section 25 of the Act. Section 25 provides, inter-alia , that whoever

being the owner of conveyance knowingly permits it to be used for commission by any other

person of an offence under any provision of the Act, shall be punished with the sentence

6
Radhakishan Parashar v. State, 1988(2) Crimes 298.
7
Revatram Ram Ratan Chand Thakur v. State of Goa, 1996 Drugs cases 155.
8
Ram Phal Prem Singh v. State, 1997(1) E.F.R. 266.
9
Para 11, clarification

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mention therein.10 Similar presumption can be raised in case of confiscation of conveyance

etc. used in carrying any narcotic drug as provided u/s 60(3) of the Act. But in a case under

section 25 of the Act, it is for the prosecution to establish that the owner of the vehicle

knowingly permitted the vehicle to be used for commission of an offence under the Act. 11The

charge u/s 25 of the NDPS act was also upheld by the Special Court because the 90 kgs of

cannabis were found in NZT- CANCER research unit present in the shrine12 to which none

other than the members of Manav Cult had access. This makes the exclusive possession and

control of the site in the hands of SSA and establishing consciousness of possession of

cannabis thereby making her liable under all the above section mentioned herein.

1.2. CHARGE UNDER SECTION 121 OF W.P.C IS ATTRACTED

The accused has also been charged u/s 121 of W.P.C. for waging or attempting to wage war

against the government of Winterfell for which she is liable to be punished with death or

imprisonment of life and shall also be liable to fine. Moreover, charges u/s 20, i.e.

punishment for being a member of terrorist gang or organisation, making her liable to

imprisonment for life and also imposition of fine. Furthermore, u/s 39 offence relating to

support terrorist organisation which is punishable with imprisonment of term not exceeding

10 yrs. or with the fine or both and u/s 40 offence for raising fund for terrorist organisation

punishable term not exceeding 14yrs or both. Here, in the present case where it is explicitly

mentioned that Winterfell liberators is terrorist organisation seeking liberation of a territorial

part of Stark Pradesh. In a case it was held that even if the charge does not set out the

10
DEBJYOTI DE, GUIDE TO NARCOTICS DRUGS AND PSYCHOTROPIC SUBSTANCE , ACT. 2009 (2nd Ed.).
11
Balbir Singh v. State of Orissa, 1995 CrLJ 1762 (Ori).
12
Para 3, moot proposition

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speeches alleged to be seditious it would not vitiate the proceedings. 13 It is also pertinent to

mention here that Winterfell liberators made an official statement on the arrest of SSA that if

any harm is done to SSA, Winterfell will face it‘s wrath. 14 It is well established from these

facts SSA being a very influential person having 10 million followers threats to wage war by

terrorist organisation defined u/s 15 Unlawful Activities Prevention, Act. As to constitute an

offence under 121 of W.P.C. the following principle have been laid down:

a) No specific number of person is necessary,

b) The number concerned and the manner in which they are equipped or armed is not

material,

c) The true criterion is quo animo did the gathering assemble.

d) The object of the gathering must be to attain by force and violence an object a

general public nature thereby striking directly against the King‘s Authority.

e) There is no distinction between the principle and accessory and all who take part

in the unlawful act incur the same guilt.15

1.3. NATURE OF WINTERFELL LIBERATORS AND SSA

Here, in the present case where the Winterfell Liberator is a terrorist organisation, is a

declared terrorist organisation has expressed that no harm should be caused to SSA. Hence, it

shows the intention and connection between SSA and Winterfell liberators. It is also humbly

submitted before this Hon‘ble Court that the terrorist act is covered u/s 15 of Unlawful

13
M.P. Narayan Menon, In re, 1925 Mad 106.
14
Para 17, Moot Proposition page 3
15
Maganlal v. Emperor, AIR 1976 Nag 173.

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Activities Prevention Act, which include the threaten the unity integrity and security of the

nation. By the virtue of sec 35 of Unlawful Activities Prevention Act, the Winterfell

liberators were declared to be terrorist organisation. SSA being a very influential person with

10 million followers thus the threat of waging war is extracted. Therefore SSA shall be held

liable for such acts which are against the security, unity and integrity of the nation.

It is a established fact that video surfaced over various media channels clearly featured SSA

talking to members of terrorist organisation namely Winterfell Liberators who had boxes of

illegal drugs along with them. The same was not rebutted by the SSA. It is to be mentioned

that the video so aired by various media channels, who claimed that it was not doctored.

Since, all the factors necessary to complied with u/s 65 (b) of evidence were made therefore it

is an acceptable evidence.

The Hon‘ble High Court of Delhi, while deciding the charges against accused in a corruption

case observed that since audio and video CDs in question are clearly inadmissible in

evidence, therefore trial court has erroneously relied upon them to conclude that a strong

suspicion arises regarding petitioners criminally conspiring with co-accused to commit the

offence in question. Thus, there is no material on the basis of which, it can be reasonably said

that there is strong suspicion of the complicity of the petitioners in commission of the offence

in question.16

Any documentary evidence by way of an electronic record under the Evidence Act, in view

of Sections 59 and 65-A, can be proved only in accordance with the procedure prescribed

under Section 65-B. Section 65-B deals with the admissibility of the electronic record. The

purpose of these provisions is to sanctify secondary evidence in electronic form, generated by

16
Ankur Chawla v. CBI (MANU/DE/2923/2014)

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a computer. It may be noted that the section starts with a non obstante clause. Thus,

notwithstanding anything contained in the Evidence Act, any information contained in an

electronic record which is printed on a paper, stored, recorded or copied in optical or

magnetic media produced by a computer shall be deemed to be a document only if the

conditions mentioned under sub-section (2) are satisfied, without further proof or production

of the original.17 Therefore in the present case in hand it is established that SSA was in

collaboration with a terrorist organisation and dealing with them directly.

Therefore, this is hereby pleaded that such person who are in such a juvenile age are tending

with such meetings and have ability to understand the consequence of the offence shall not be

treated lightly and be held liable under § 20, § 39, § 40 of The Unlawful Activities Prevention

Act, 1967.

2. WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE

JUVENILE JUSTICE (CARE AND PROTECTION) ACT, 2015 AMENDING THE JUVENILE

JUSTICE (CARE AND PROTECTION) ACT, 2000 TO BE HELD CONSTITUTIONALLY VALID

OR NOT?

It is submitted that the new Juvenile Justice (Care and Protection of Children) Act, 2014 is

Constitutional. The new act has been brought as it was the need of the hour and the will of the

people. It was brought into force after the clamour that was raised after a series of heinous

crimes that were committed by the juveniles. This act was preceded by a consultative process.

The act is not violative of the Article 14 and Article 21 of the Constitution as it permits

reasonable classification of the juveniles belonging to the age-group of 16-18 years in case of

17
Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473.

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commission of heinous offences. The procedure followed during the two stages of assessment

is appropriate and stands the test under the Constitution of Indiana.

The Act is in consonance with various International Covenants and Rules. India is not an

isolated country to make such stringent laws to curb the menace of crimes in the society. The

new act is not only a beneficial piece of legislation but also a comprehensive legislation when

compared to the JJ act, 2000.

All in all, this act strikes a balance between the interests of the society and the rights of the

child. When tested on the touchstone of the Constitution this Act is valid. The presumption of

constitutionality is to be raised since in passing the law, the majority of the elected

representatives of the people believe that the restrictions imposed by the law were

reasonable.18

It is submitted that the JJ Act, 2014 is constitutional and it can be proved on the following

grounds:

2.1. THAT THE ACT WAS THE NEED OF THE HOUR

The parliament has enacted the new act because there was a dire need. In Kerela State

Electricity v. Sharat Chandra it was held that Art.14 is a positive concept and no equality can

be claimed on the basis of illegality.19 It is to be noted that the principle of natural justice are

implicit in Art.14 but legislative action is not subject to natural justice.20

18
H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA (4th ed. Universal Law Publishing Co. Pvt. Ltd., New Delhi

2004).
19
Kerela State Electricity v. Sharat Chandra, AIR 2009 SC 191.
20
Madras City Wines Merchant‘s Association v. State of T.N., (1994) 5 SCC 509.

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2.1.1. That the Act was passed to curb menace in the society

The POCSO Act, 2011 came into place when there was a sudden surge in the offences

relating to Sexual activities, the guidelines were laid down on sexual offences at workplace

after the diabolic incident of Vishaka v. State of Rajasthan21 and Criminal Amendment Act

2013 was also made as a consequence of the Nirbhaya Case. History is replete with examples

where Experience has acted as the best teacher and has demanded ‗Change‘ in the law that

can never be static. As it is rightly said ―law is an instrument of Social change.‖

The highest Court of the land, in an order passed on 6th April, 2015 in Gaurav Kumar v.

State of Haryana22 in recognition of the fact that the rate of crime in which the juveniles and

the nature of crime in which they are involved have increased, has explicitly remarked that:

Time has come to think of an effective law to deal with the situation, we

would request the learned Attorney General to bring it to the notice of the

concerned authorities so that the relevant provisions under the Act can be

re-looked, re-scrutinized and re-visited, at least in respect of offences which

are heinous in nature.

In EKTA Shakti Foundation v. Govt. of NCT of Delhi,23 it was held that Equality clause

cannot be applied to legitimise an illegal action. There was a public outcry demanding more

stringent punishment because of the increasing juveniles who were found in conflict with

Law. It was also pointed out that the Delhi Gang rape case in December 2012, the Shakti Mill

Rape case in Mumbai July 2013 and the Guwahati rape case in September 2013 involving

21
Vishakha v. State of Rajasthan, AIR 1997 SC 3011.
22
Gaurav Kumar v. State of Haryana, (2015) 4 SCALE 531.
23
EKTA Shakti Foundation v. Govt. of NCT of Delhi, AIR 2006 SC 2609

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child offenders triggered a debate across the Country about the inadequacy of punishment

who committed heinous crimes.24

This data provides for cases of juveniles in conflict with law reported under various SLL

(Special and Local laws) crimes have increased by 21.8% in 2014 as compared to 2013, as

4,136 cases of juveniles in conflict with law under SLL reported in 2013 which increased to

5,039 cases in 2014.25

2.1.2. That a consultative process preceded the Act

A standing Committee on HRD mentions that a comprehensive consultation process was

adopted before the passing of the Act A review committee was also constituted under the

Ministry of Women and Child Development.26 The Women and Child Development Ministry

has posted on its website a proposed draft of The Juvenile Justice (Care and Protection of

Children) Bill, 2014, on 18th June, 2014 for fifteen days suggesting broad amendments.

2.2. THAT THE ACT IS CONSISTENT WITH ARTICLE 14 AND ARTICLE 21

It is submitted that the classification of age is reasonable and the procedure laid down in the

new act for the trial of children in conflict with law is not arbitrary. Constitutionality of the

legislative and executive acts should be tested on the anvil of constitutionalism and the

24
Justice Raghavendra Kumar, The case for reduction of the age of juvenility,Criminal Law Journal, August,

2015.
25
Chapter – 10 Juvenile in conflict with law See at http://ncrb.nic.in/ (Last visited 8 febuary 2018)
26
See Two Hundred Sixty Fourth Report The Juvenile Justice (Care and Protection of Children)

Department- Related Parliamentary Standing Committee Report On Human Resource Development

http://www.prsindia.org/uploads/media/Juvenile%20Justice/SC%20report-%20Juvenile%20justice.pdf (Last

assessed on 8 febuary 2018 at 2:28 a.m.)

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ingrained principles.27In a landmark case28 it was held that State has power to make

classification on the basis of rational distinctions relevant to the particular subject to be dealt

with. The supreme court in another case29

2.2.1. That the classification made is reasonable

The most distinguishing provision of the JJ Act, 2014 is the classification that has been

created as provided in Section 14(5)(f),of the Act which categorizes children in the age-group

of 16-18 who have been alleged for the commission of a heinous offence, shall undergo a

preliminary assessment with respect to their physical and mental capacity.

This classification stands the test of Reasonable Classification as laid down in the case of

Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar & Others,30 by a Constitution

Bench that, in order, to pass the test of permissible classification two conditions must be

fulfilled, filled namely,

(i) that the classification must be founded on an intelligible differentia,

(ii) that that differentia must have a rational relation to the object sought to be achieved

by the statute in question.‖

Intelligible Differentia: It is submitted that categorizing all Juveniles in only one category,

irrespective of the commission of offence they had committed, resulted in over-classification.

27
DR. SUBHASH C. KASHYAP, CONSTITUTIONAL LAW OF INDIA (Universal Law Publishing Pvt. Ltd., New Delhi

2008).
28
Ashutosh Gupta v. State of Rajassthan, AIR 2002 SC 1533.
29
Smt. Heena Kausav v. Competent Authority, AIR 2008 SC 247.
30
Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar & Others, AIR 1958 SC 538.

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Unequals were treated equally because there was no distinction between juveniles who

committed petty offences and who committed heinous offences.

This principle has been recently reiterated by the Supreme Court in M.G. Badappanavar v.

State of Karnataka,31 by stating, ―Equality is a basic feature of the Constitution of India and

any treatment of equals unequally or unequals as equals will be violation of basic structure of

the Constitution of India.‖

The data by NCRB supports the differentiation. 872 juveniles were apprehended in the age-

group of below 12 years, 11,220 juveniles were apprehended in the age-group of 12-16 years

during 2014 whereas majority of juveniles apprehended (36,138) were under the age-group of

16-18 years. The percentage shares of Juveniles apprehended under these age-groups were

1.8%, 23.3% and 74.9% respectively.32

2.2.2. That the procedure established to try the child as an adult is appropriate

It is submitted that the procedure for trial of a child stands the scrutiny of Article 21.

2.2.2.1. Child friendly atmosphere along with Reformation and Rehabilitation

The provisions which ensures child friendly atmosphere and provide an opportunity for the

child to reform and rehabilitate are provided in § 18, 19 and 20, Along with the preamble of

the act.33

31
M.G. Badappanavar v. State of Karnataka, AIR 2001 SC 260
32
The details have been presented in Table 10.4 at http://ncrb.nic.in/
33
―….by adopting a child-friendly approach in the adjudication and disposal of matters in the best interest of

children and for their rehabilitation…‖

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As per the ministry of women and Child Development, this unique instrument of a two-stage

assessment brings about a balance that is sensitive to the rights of the child, protective of his

legitimate interests yet conscious of the need to deter crimes.34

Nobel Peace Laureate Kailash Satyarthi hailed the passing of the Act as a major legislative

reform measure.35 ―Whether it‘s a crime by a child or on a child, the focus has to be on

reform and restitution and not just deterrence. We welcome that no child below the age of 18

will go to jail and instead be sent to a special place of safety till the age of 21,‖ he said. He

added that the protection framework provided under this law is extremely robust.

 Here, SSA who was the owner36 of the NZT- CANCER research unit and of the

warehouse37 where the quantity of 90kgs, 50 kgs, and 50 kgs was found and seized red

handed. In the veil of the research unit SSA practice unfair and illicit trading in the country.

The Act has to be read down to understand that the true test of ―juvenility‖ is not in the age

but in the level of mental maturity of the offender. The provisions of Sections 82 and 83 of

the Indian Penal Code have been placed to contend that while a child below 7 cannot be held

to be criminally liable, the criminality of those between 7 and 12 years has to be judged by

the level of their mental maturity. The same principle would apply to all children beyond 12

and upto 18 years also, it is contended. This is how the two statutes i.e. Indian Penal

Code and the Act has to be harmoniously understood The non-obstante provisions contained

in Section 1(4) of the Act as well as the bar imposed by Section 7 on the jurisdiction of the

criminal court to try juvenile offenders cannot apply to serious and heinous crime committed
34
Justice Raghavendra Kumar, The case for reduction of the age of juvenility,Criminal Law Journal, August,

2015.
35
http://indianexpress.com/article/india/india-news-india/parliament-passes-juveline-justice-bill-16-and-above-

to-be-tried-as-adults/#sthash.fkpmBvOo.dpuf (last accessed on 10 Febuary 2016 at 1:05 p.m.)

36
Clarification point
37
Para 7, moot proposition

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by juveniles who have reached the requisite degree of mental maturity, if the Act is to

maintain its constitutionality. The purport and effect of Section 1(4) of the Act must be

understood in a limited manner.38 The above is a fairly well established and well accepted

principle of interpretation which having been reiterated by this Court time and again would

obviate the necessity of any recall of the huge number of precedents available.39

3. WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE

P.I.L. FILED BY N.G.O. AJEEVAN MEDICAL TRUST CHALLENGING THE

CONSTITUTIONAL VALIDITY OF THE NDPS ACT, 1985, IS MAINTAINABLE OR NOT?

In the present case it is also contended the constitutional validity and the provision of

presumption of innocence of the accused. The PIL instituted by the NGO vehemently

challenges the existing provision u/s 35 of the NDPS Act, 1985. It is also contended before

this Hon‘ble Court that statutory presumption regarding mens-rea as it is inevitable for the

establishment of crime. This, section 35 contains a rule of evidence and provides that in any

prosecution under this Act, the existence of culpable mental state shall be presumed. The

main issue before this Hon‘ble Court is whether sec 35 is inconsistent with the spirit of

presumption of innocence or not.

3.1. SEC. 35 AND 54 WHEN ATTRACTED

Under sec. 35 of the NDPS Act, the presumption is for the existence of culpable mental state

and the burden shifts on the accused.40 The statement of the accused and his defence, is

38
Essa Anjum Abdul Razak Memon vs. State of Maharashtra, 2013 13 SCC 1 :2013 SCC Online SC 257.
39
DTC v. Mazdoor Congress, 1991 Supp (1) SCC 600
40
Balbir v. State, 1995 (1) DLR 143.

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therefore required, to be considered in view of the statutory presumption. 41 The presumption

is for the offence under Chapter IV and the burden shifts on the accused to account

satisfactorily for the possession of the narcotic drug and psychotropic substance.42

It is humbly submitted before this Hon‘ble Court that looking to the seriousness nature of the

offence of drug trafficking which effect the society at large, designedly and devisedly, the

Parliament in its wisdom has provided with two statutory presumptions u/s 35 and sec. 54 of

the NDPS Act. The culpable mental state shown the intention, knowledge or motive which, at

times, may be difficult to establish and therefore, under sec 35 presumption of the culpable

mental state of the accused is provided for.43 It is also pertinent here to submit that there is no

extreme onus on the accused after being charged under sec 35 and 54 of the Act. Only in

cases where the prosecution had led convincing evidence regarding search and seizure from

the exclusive possession of the accused then the presumption under sec 35 and 54 of the Act

can be drawn.44 It is also submitted before this Hon‘ble Court that if no evidence connecting

the accused with seized contraband than presumption of mental culpable state cannot be

raised.45 In a case it was held that in respect of the contraband articles concealed in the body

of the vehicle, the driver of the car cannot be ascribed with the possession of thet article

unless there are circumstances to show that he had knowledge of such concealment. 46 It is

explicitly clear that the primary burden to make it prima facie that it was accused in the

conscious possession than only Sec. 35 and 54 are attracted. It is also to be noted that the

41
State of gujurat v. abdul rasid Ibrahim Mansuri, 1991 Cr. L. R. 101.
42
Soodha Somana v. State, 1991 Cr. L.J.2185.
43
DEBJYOTI DE, GUIDE TO NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES, 2009 (2nd Ed.) pg 321.
44
Jinabhai Kalabhai Rajput v. State of Gujarat, 1998 Drugs Cases 388 (DB).
45
Matlub Khan v. State of Maharashtra, 1993 CrLJ 3624 (Bom.)
46
Kalekhan v. State of M.P., 1990 CrLJ 1119 (MP).

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burden of proof cast upon the accused u/s 35 of the Act can be discharge when the accused is

called upon his defence. He can rely on the circumstances appearing in the prosecution

evidence or adduce evidence himself to give reasonable assurance to the Court that the

appellant could not have had knowledge or the required intention, the burden cast upon him

would stand discharge even if he has not adduced any evidence of his own when he is

called upon to enter his defence.47 The term possession is not defined in NDPS Act. The

term has been judicially construed to mean, in various decisions, as ―Possession implies

dominion over an object that he has it and that he can exercise it . Possession must be

conscious and intelligent possession and not merely the physical presence of the accused in

proximity or even n close proximity to the object.48 The apex court in a case observed that

test for determining ―whether a person is in possession of anything is whether he is in general

control of it‖.49 The Apex Court after examining Salmond‘s Jurisprudence and other earlier

decisions rendered by the Court, observed ―possession‖ is a polymorphous term which may

have different meaning in different context.50 It is also held by the Apex Court that thet the

precondition of satisfactory evidence regarding search and seizure is not there than no

presumption of such possession can be raised.51 In a case where the possession was not

proved, therefore no presumption can be raised that the accused has committed the offence.52

47
Abdul Rashid Ibrahim Masruri v. State of Gujarat, 1 (2000) CCR 155(SC).
48
Dula Singh v. Emperor, AIR 1928 Lah 272: 1928 (29) CrLJ 481
49
Supdt. And Remeberancer of Legal Affairs v. Anil Kumar Bhunja, (1979) 4 SCC 274 : AIR 1980 SC 52.
50
DEBJYOTI DE, GUIDE TO NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES, 2009 (2nd Ed.) pf 326.
51
Saiyyad Mohd. Saiyad Umar v. State of Gujarat, 1995 (2) CrLR 1315 (SC).
52
State of Kerela v. Arun Valenchary, 2002 Cr LJ 2512 (Ker).

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3.2. NOT UNCONSTITUTIONAL WHEN FAIR HEARING AND RIGHT TO REBUT PROVIDED

It is also humbly submitted before this Hon‘ble Court that the knowledge of the accused

about the seized contraband and his conscious and exclusive possession has not been proved

by the prosecution and the accused entitled to be acquitted.53 It is vehemently submitted

before this Hon‘ble Court that on a plain reading of the section 54 what is permitted to be

presumed is not the fact of possession, but the unlawfulness or illegality thereof. But that

does not dispense with the burden of the prosecution to prove possession of any contraband.54

Therefore, from the inception of the search and seizure it is the prosecution who has to

establish with support of evidence that the accused was in conscious possession of the

contraband material only than presumption under sec 35 an d54 of NDPS Act is extracted.

Under sec 35 of the NDPS Act, the presumption is for the existence of culpable mental state

and the burden shifts on the accused in case the possession of narcotic drug or psychotropic

substance is established and under sec 54, the presumption is for the offence under Chapter

IV and the burden shifts on accused to account satisfactorily for the possession of the narcotic

drug and psychotropic substance.55 The statement of the accused and his defence is, therefore,

required to be considered in view of the statutory presumption.56 It is impossible to work out

a completely logical and precise definition of possession uniformly applicable to all

situations, in context of all statutes once possession is established, the person who claims that

53
Soorajmal v. State of M.P., 1992 CrLJ 3206 (MP).
54
Re, Prabhulal, 1994 (1) Crimes 710
55
Balbir v. State, 1995 (1) D.L.R. 143.
56
State of Gujrat V. Abdul Raid Ibrahim Mansuri, 1991 Cr. L.R. 101 (Guj).

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it was not a conscious possession has to establish it, because how he came to the possession is

within his special knowledge.57 Similar view was taken in another landmark case.58

3.3. REQUIREMENT OF SEC. 35 OF NDPS ACT, 1985.

Dwelling upon the requirement of Sec. 35 of NDPS, Act, Calcutta High Court held as given

below:

―The burden of proof cast on the accused under section 35 can be discharged through

different modes. One is that he can rely on the materials available in the prosecution

evidence. Next is, in addition to that he can elicit answers from the prosecution witnesses

through cross-examination to dispel any such doubt. He may also adduce other evidence

when he is called upon to enter on his defence. In other words, if circumstances appearing in

the prosecution or in the prosecution evidence are such as to give reasonable assurance to the

Court that the appellant could not have the knowledge of the required intention, the burden

cast upon him under sec 35 of the Act would stand discharge even if he has not adducted any

other evidence of his own when he is called upon to enter in his defence.‖59

The provisions of Sec. 35 and 54 of NDPS Act are not ultra-vires the Constitution of India;

however, the procedural requirements laid down therein are required to be strictly complied

with.60 Section 35 of the Act would come into play when the prosecution has established the

ingredients of the offence but the accused seeks to displace the inference the guilt by pleading

57
Megh Singh v. State of Punjab, 2003 Cr. L.J.4329(S.C.)
58
Karaj singh v. State of Punjab, 2010 Cr.L.J.145(P.&H.)
59
Naru Mazumdar v. State of West Bengal, (2007) 1 Cal. L.T. 89 (Cal.).
60
Harjit Kaur v. State of Punjab, 2008 (2) E.F.R. 140 (P.&H.).

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a fact or circumstance which has the effect of disproving a fact which constitutes an

ingredient of the offence.61

Therefore, from the above discussed precedents and arguments it is explicitly clear that at the

very first instance the onus lies on the prosecution on the basis of the facts, evidence and

circumstances to prove the conscious possession of the illicit contraband and thereafter the

onus shifts on the accused. It is not that at very first instance the burden is on the accused.

Even also the accused is provided the chance to rebut the same.

Hence, the appeal in this concerned is frivolous and is sans- merit. Therefore, it may be

disposed-off.

4. WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE

P.I.L. FILED BY N.G.O. AJEEVAN MEDICAL TRUST CONTENDING THAT TRIAL OF

JUVENILES FOR HEINOUS CRIMES AS ADULTS WAS IN VIOLATION OF INTERNATIONAL

OBLIGATIONS OF WINTERFELL IN THE UNITED NATION CONVENTIONS ON THE RIGHTS

OF THE CHILD, BEIJING RULES ETC. IS MAINTAINABLE OR NOT ?

It has to be seen here that no violation of International obligations of Winterfell in the United

Nation Conventions on the Rights of the child, Beijing rules etc. have been done. Here, in the

present case where the juvenile SSA has done the crime which is within the ambit of

definition of sec. 2(33) of JJ Act. It is also pertinent to mention that SSA was running the cult

having followers 10 million in number and managing the affairs of 100million dollars.62

Therefore it is vehemently submitted to this Hon‘ble Court that SSA has full capability of

understanding the grave nature of offence committed by her and hence the factor of maturity

61
Jasbir Singh alias Jassa v. State of Hrayana, 2008 (3) R.C.R. (Cr.) 42 (P.&H.).
62
Para 2, Moot proposition.

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in consonance with age is not extracted in the present case. There might be several

international instruments but they cannot violate the law of land.

Laws that are to be kept in mind while dealing with the present PIL are as follows:

Article 51:

―51. Promotion of international peace and security.—The State shall endeavour to—

(a)-(b)***

(c) foster respect for international law and treaty obligations in the dealings of

organised peoples with one another; and

Article 253:

―253. Legislation for giving effect to international agreements.—Notwithstanding

anything in the foregoing provisions of this Chapter, Parliament has power to make any

law for the whole or any part of the territory of India for implementing any treaty,

agreement or convention with any other country or countries or any decision made at any

international conference, association or other body.‖

Seventh Schedule:

―LIST I — UNION LIST

14. Entering into treaties and agreements with foreign countries and implementing of

treaties, agreements and conventions with foreign countries.‖

4.1. JUDICIAL INTERPRETATION ON ENFORCEMENT OF INTERNATIONAL INSTRUMENTS

The Act has been enacted to provide for better protection of human rights and for matters

connected therewith or incidental thereto. However, there has been growing concern in the

country and abroad about issues relating to human rights. Having regard to this, changing

social realities and emerging trends in the nature of crime and violence, the Government has

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been reviewing the existing laws, procedures and system of administration of justice, with a

view to bringing about greater accountability and transparency in them, and devising efficient

and effective methods of dealing with the situation. Taking into account the views of all

concerned, the Act was enacted.

India is a party to the aforesaid covenants. The Indian Constitution guarantees essential

human rights in the form of fundamental rights under Part III and also directive principles of

State policy in Part IV which are fundamental in the governance of the country. Freedoms

granted under Part III have been liberally construed by various pronouncements of this Court

in the last half a century in favour of the subjects also, keeping in view the International

Covenants. The object has been to place citizens at a central stage and State being highly

accountable.

4.2. THAT THE ACT IS CONSISTENT WITH INTERNATIONAL LAW

It is submitted that the new act is supported by UNCRC63 and the Beijing Rules, 1985.

4.3. THE ACT DOES NOT VIOLATE ARTICLE 40 OF UNCRC

Article 40(1) deal with the treatment and promotion of the child's sense of dignity vis-à-vis

re-integration in the society. If the parliament has made any legislation which is in conflict

with the international law, then Indian Courts are bound to give effect to the Indian Law,

rather than the international law. However, in the absence of a contrary legislation, municipal

courts in India would respect the rules of international law.64 Austin used his definition of law

to deny the legal character of international law, which he saw simply as positive morality. He

did not deny the existence of international rules however according to Austin such rules were

63
United Nation Convention on the Rights of the Child. India ratified UNCRC on 11 December, 1992.
64
National Legal Services Authority v. Union of India and Others, (2014) 1 SCC 1

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not commanded fundamentally for Austin, states, which are themselves sovereign cannot be

subjected to the Law.65

Chapter II ‗General Principles of Care and Protection of Children‘ is the most noteworthy

characteristic of the Act, providing for ‗Care, Protection, Rehabilitation and Justice for

Children‘.66It incorporates internationally accepted principles of presumption of innocence,

dignity and worth, family responsibility, non-stigmatizing semantics, privacy and

confidentiality, repatriation and restoration, equality and non-discrimination, and diversion

and natural justice, among others.

4.3. THAT THE ACT DOES NOT VIOLATE ANY OTHER ARTICLE OF UNCRC

The best interests of the child as required under Article 3 of UNCRC have been taken care of

by incorporating §§ 19(1), 19(3) and 20 in the JJ Act, 2014. Moreover, even if he is tried as

an adult, he can be sentenced to a maximum of life imprisonment with possibility of release

as mentioned in § 21 of the new act which is in consonance with UNCRC. The principles

relating to juvenile justice system have been incorporated in § 3 (Chapter II) of the new act.

Thus, the new act is being supported by UNCRC.

4.4. THAT THE ACT IS SUPPORTED BY BEIJING RULES, 1985

The United Nations Standard Minimum Rules for the Administration of Juvenile Justice,

1985 (the Beijing Rules),take into account penological objectives in addition to rehabilitation

of the offender. In Rule 17.1, the guiding principles of adjudicating matters involving

juveniles are enlisted: (a) The reaction shall always be proportional to not only the

65
Mechanisms To Create And Support Treaties Conventions And Other Responses See at:
http://www.eolss.net/eolsssamplechapters/c14/e1-44-01/E1-44-01-TXT.aspx (last accessed on 4 Febuary, 2018).
66
―Towards a comprehensive Juvenile Justice law‖ The Hindu 14th July 2014.

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circumstances and the gravity of the offence, but also to the circumstances and needs of the

juvenile as well as to the needs of society.67

4.5. THAT THE OTHER COUNTRIES ALSO HAVE SIMILAR LAWS

There have been laws in other countries where because of the societal changes similar laws

have been adopted. In Canada, Referring to Section 13 of the Criminal Code of Canada, a

youth between age of 14 to 17 years may be tried and sentenced as an adult in certain

situations. In USA nearly all States permit persons less than 18 years to be tried as adults. For

example, in California, the majority age is 18 years, but persons older than 14 years may be

tried as adults if they commit serious crimes (rape, robbery, murder etc.). The state of New

York pegs the age of juvenility at 16 years, and permits the prosecution of persons aged

between 13-16 years as adults in case of serious crimes. A unique feature of Blended

Sentencing in USA: A juvenile court may sentence a convicted juvenile offender to both a

juvenile sentence and an adult sentence. The adult sentence is suspended on the condition that

the juvenile offender successfully completes the term of the juvenile disposition and refrains

from committing any new offence. In Nepal, The minimum age of criminal responsibility is

10 years. A child is a person below 16 years. Youth between 16-18 years are charged and

tried as adults. In India, the significant factor is that, the trial of Juvenile for violent crimes

can take place only after the assessment by the JJ board and in that death sentence and life-

imprisonment cannot be awarded to the juvenile.68

67
Subramanian Swamy v. Raju Thr. Member Juvenile Justice Board and Anr., (2014) 8 SCC 390
68
Supra 20.

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4.6. THAT THE ACT IS A COMPREHENSIVE LEGISLATION

The new JJ Act, 2014 is a comprehensive legislation when compared with the Act of 2000.

The Act provides for general principles of care and protection of children, procedures in

case of children in need of care and protection in conflict with law, rehabilitation and

social re-integration measures for such children and offences committed against children.

Therefore Special Court was right in holding SSA liable under § 20, § 39, § 40 of The

Unlawful Activities Prevention Act, 1967.The new act has brought into its ambit the

following beneficial provisions:

 Child Welfare Committee: Disposing of cases for children in need of care and

protection; Frequency of meetings not specified. In the new act; Committee to meet at least

20 days in a month.

 Adoption: No provision for inter-country adoption in the Act; the Guidelines

Governing the Adoption of Children, 2011 provide for inter-country adoption. In the new act,

Inter-country adoption allowed if adoption cannot take place within the country, within 30

days of child being declared legally free for adoption.

 Foster care: Temporary placement of a child to be given for adoption, with a family

for a short/extended period of time; biological family may be allowed to visit. In the new act,

it adds new provision for monthly checks on foster family by the CWC.

 After-care: Monetary and continued support for children after they leave special or

children home for a period of three years or till 21 years of age. In the new act, One-time

financial support to children leaving child care institutions after completing 18 years of age is

MEMORIAL ON BEHALF OF THE RESPONDENTS

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given.69 It is also pertinent to mention here that nothing in the act is ultra-vires of any

provision contained in the Constitution of India.

The UN Standard Minimum Rules for the Administration of Juvenile Justice (―the Beijing

Rules‖) were adopted by the General Assembly of the United Nations in 1985. Rule 2.2(a)

defines a juvenile as a child or young person who, under the respective legal system, may be

dealt with for an offence differently than an adult. Rule 4.1 set out below mandates Member

States to refrain from fixing a minimum age of criminal responsibility that is too low, bearing

in mind the facts of emotional, mental and intellectual maturity.

―In those legal systems recognizing the concept of the age of criminal responsibility for

juveniles, the beginning of that age shall not be fixed at too low an age level, bearing in mind

the facts of emotional, mental and intellectual maturity.‖

In Rule 17.1, the guiding principles of adjudicating matters involving juveniles are enlisted:

a) The reaction shall always be proportional to not only the circumstances and the gravity

of the offence, but also to the circumstances and needs of the juvenile as well as to the needs

of society;

b) Restrictions on personal liberty of the juvenile shall be imposed only after careful

consideration and shall be limited to the possible minimum;

69
Legislative Brief The Juvenile Justice (Care & Protection of Children) Bill, 2014 See at:

http://www.prsindia.org/uploads/media/Juvenile%20Justice/Legislative%20Brief%20Juvenile%20Justice%20Bi

ll.pdf (Last Visited On 12 February 2018).

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c) Deprivation of personal liberty shall not be imposed unless the juvenile is adjudicated

of a serious act involving violence against another person or of persistence in committing

other serious offences and unless there is no other appropriate response;

d) The well-being of the juvenile shall be the guiding factor while considering his case.

Rule 1.2 of the Havana Rules provide that a juvenile should be deprived of his/her liberty

only as a measure of the last resort limited to exceptional cases and for the minimum

necessary period. Even then, detention should be in such a manner and in conditions that

respect the human rights of juveniles (Rule 12).

Rule 11(a) of the Havana Rules, 1990 define a juvenile as every person under the age of 18,

and allow national laws to determine a minimum age below which such person will not be

detained.

Under Article 43 of the CRC, constitution of a Committee for the purpose of examining the

progress made by the State parties on the rights of the child is contemplated. The first

meeting of the Committee under Article 44 was to be within 2 years of the coming into force

of the convention so far as a particular State party, in respect of whom review of the progress

is made, is concerned. Thereafter, the Committee is required to meet every 5 years. In

January, 2000, the Committee considered the initial report of India submitted on 19.03.1997

and adopted certain ―concluding observations‖ the relevant part of which are already

discussed in previous contention.

International resolutions and covenants mirror the conscience of mankind and insominate,

within the member-States progressive legislation; but till that last step of actual enactment of

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law takes place, the citizen in a world of sovereign States has only inchoate rights in the

domestic courts under these international covenants.70

It is also pertinent to bring forth treaties entered into by the Union of India do not become

enforceable at the hands of our courts and they do not become part of our domestic law. This

was so held by the Supreme Court in Jolly Verghese v. Bank of Cochi71 held ―India is now a

signatory to this Covenant and Art. 51(c) of the Constitution obligates the States to ―foster

respect for international law and treaty obligations in the dealings of organized peoples with

one another‖.

It is also contended on behalf of the State that If statutory enactments are clear in meaning

they must be according.to their meaning even though they are contrary to the comity of

nations or international law.72

With respect to the meaning, purport and ambit of Article 245, quoted verbatim, were the

following:

1) ―There is clear distinction between a sovereign legislature and a subordinate

legislature.

2) It cannot be disputed that a sovereign legislature has full power to make extra-

territorial laws.

3) The fact that it may not do so or that it will exercise restraint in this behalf arises not

from a constitutional limitation on its powers but from a consideration of

applicability.

4) This does not detract from its inherent rights to make extra-territorial laws.

70
Xavier v. Canara Bank Ltd, 1969 KLT 927.
71
Jolly Verghese v. Bank of Cochi, AIR 1980 SC 470.
72
Tractor Export, Moscow vs M/S. Tarapore & Company & Anr, AIR 1971 SC 1.

MEMORIAL ON BEHALF OF THE RESPONDENTS

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5) In any case, the domestic courts of the country cannot set aside the legislation passed

by a sovereign legislature on the ground that it has extra-territorial effect or that it

would offend some principle of international law.

6) The theory of nexus was evolved essentially from Australia to rebut a challenge to

income tax laws on the ground of extra-territoriality.

7) The principle of nexus was urged as a matter of construction to show that the law in

fact was not extra-territorial because it had a nexus with the territory of the legislating

State.

8) The theory of nexus and the necessity to show the nexus arose with regard to State

Legislature under the Constitution since the power to make extra-territorial laws is

reserved only for Parliament.‖73

It is also inappropriate no State has supreme legal power and authority over other States in

general, nor are States generally subservient to the legal power and authority of other States.

Thus the relationship of States on the international plane is characterised by their equality,

independence, and in fact, by their interdependence.‖74

It is submitted that recognition of the current issue is consistent with international norms and

India's international obligations under different conventions and treaties. It is an accepted

proposition of law that the rules of customary international law which are not contrary to the

municipal law shall be deemed to be incorporated in the domestic law. Article 51 of the

Constitution directs that the State shall endeavour to inter alia, foster respect for international

law and treaty obligations.75

73
GVK Industries Ltd. v. ITO, (2011) 4 SCC 36.
74
OPPENHEIM'S INTERNATIONAL LAW [ Vol. 1, Peace 9th Edn., p. 125, 9 (Longman Group, UK, 1992)
75
K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

MEMORIAL ON BEHALF OF THE RESPONDENTS

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. International treaties which are signed shouldn‘t be in conflict with Municipal Laws. In

A.D.M. Jabalpur v. Shivakant Shukla the court also held that ―the court should adopt such a

construction as would, if possible not bring it in conflict with the provisions of international

law‖76.

It is now an accepted rule of judicial construction that regard must be had to international

conventions and norms for construing domestic law when there is no inconsistency between

them and there is a void in the domestic law.‖, has held that it is now an acceptable rule of

judicial construction that regard must be had to international conventions and norms for

domestic law when there is no inconsistency between them and there is a purported void in

domestic law.77

4.7. INTERPRETATION IN THE LIGHT OF INTERNATIONAL TREATIES

In a five judges bench it was laid down that: It is true that the doctrine of ―monism‖ as

prevailing in the European countries does not prevail in India. The doctrine of ―dualism‖ is

applicable. But, where the municipal law does not limit the extent of the statute, even if India

is not a signatory to the relevant international treaty or covenant, the Supreme Court in a

large number of cases interpreted the statutes keeping in view the same. A treaty entered into

by India cannot become law of the land and it cannot be implemented unless Parliament

passes a law as required under Article 253.78

76
ADM Jabalpur v. Shiv Kant Shukla.
77
Vishaka v. State of Rajasthan (1997) 6 SCC 241, para 14.
78
State of W.B. v. Kesoram Industries Ltd., (2004) 10 SCC 201

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 Page | 31

In view of Article 51 of the directive principles, this Court must interpret language of the

Constitution, if not intractable, which is after all a municipal law, in the light of the United

Nations Charter and solemn declaration subscribed to by India.79

Therefore, P.I.L .challenging for violation of various instruments is frivolous and sans merits

and substantial question of law, so to be stand dismissed.

79
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225

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PRAYER

Wherefore in the light of facts of the instant case, written pleadings and authorities cited, it is

humbly prayed before this Hon'ble Supreme Court that it may be pleased to hold, adjudge

and declare:

1) That Shaam Savea Angel be held guilty of all the charges under NDPS Act, Juvenile

Justice ACT, Unlawful Activities and Prevention Act.

2) That the amendment by virtue of 2015 in Juvenile Justice (Care and Protection of

Children) Act, is declared and remain as constitutional.

3) That the basic principle of Jurisprudence be taken into account, hence sec. 35 and 54

is held constitutional.

4) That the present appeal and PIL be frivolous and not maintainable and be disposed off

with costs.

5) That the amendment by virtue of 2015 in Juvenile Justice (Care and Protection of

Children) Act is declared to be not inconsistent with various international instruments

mentioned.

In the alternative, pass any other relief which the court may deem fit and proper.

All of which is humbly submitted by Counsels on behalf of the Appellant.

Date: Sd/-

Place: Counsels on behalf of the Respondent.

MEMORIAL ON BEHALF OF THE RESPONDENTS