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 Appellant

Drawn and Filed by the Counsel for the Appellant

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS ........................................................................................................ III

LIST OF AUTHORITIES ............................................................................................................ IV

STATEMENT OF JURISDICTION ............................................................................................... IX

STATEMENT OF FACTS .............................................................................................................. X

ISSUES RAISED...................................................................................................................... XIII

SUMMARY OF ARGUMENTS.................................................................................................. XIV

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

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? ............................................. 7

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? .............................................................................................. 13

3.1. Statutory pressumption regarding mens-rea .............................................................. 14

3.2. Violative of fair trail and Art. 20 and other international obligations. ...................... 15

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

MEMORIAL ON BEHALF OF THE APPELLANTS

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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

PRAYER ................................................................................................................................ XVI

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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

STATUTES

Constitution of India, 1950, Art 20. 16

CASES

A.D.M. Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207 27

Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487 9

Ashutosh Gupta v. State of Rajasthan, AIR 2002 SC 1533 10

Associated Provincial Picture House Ltd. V. Wednesburry Corporation, (1948) 1 10

K.B. 223

B.B. Hugar v. Naushad Hasan Pathan, 2005 (2) BCrC. 259 (Bom.). 3

Balbir v. State, 1995 (1) D.L.R. 143 14

Bashir Shiekh v. State of Goa, 1991 (1) Mah. L.R. 1083(BOM.). 2

Bhagwan Singh v. State of M.P. (2002) 4 SCC 85 19

Bhawan Saiv. State of M.P., 2009 (77) A.I.C. 937 (Chhatt.). 2

Chandrappa v. State of Karnataka (2007) 4 SCC 415 19

DTC v. Mazdoor Congress, 1991 Supp (1) SCC 600 12

Food Corpn. Ltd. v. Bhanu Lodh, (2005) 3 SCC 618 8

Garg v. Union of India, AIR 1981 SC 2138 9

Ghurey Lal v. State of U.P., (2008) 10 SCC 450 18, 19

Glass Chatons Association v. Union of India, AIR 1961 SC 1514(1517). 9

Gramophone Company of India Limited v. Birendra Bahadur Pandey & Ors. , 21

AIR 1984 SC 667

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Jeevan Chand v. State of Goa, 1988 (1) Crimes 447: 1988 Crlj 271 (Bom.) (DB) 2

Jindal Stainless Ltd. v. State of Haryana, (2017) 12 SCC 1 29

Jolly Verghese v. Bank of Cochin, AIR 1980 SC 470. 22

K. Gopal Reddy v. State of A.P. (1979) 1 SCC 355 18

K.S. Puttaswamy v. Union of India, Writ Petition (Civil) No 494 Of 2012 28

K.T.M. Nayyarv. State of Kerela, AIR 1967 SC 552 9

Karaj singh v. State of Punjab, 2010 Cr.L.J.145(P.&H.) 14

Keshavanad Bharti v. State of Kerela, 1973 SC 1463 28

Krishna Janardhan Bhat v. Dattaraya G. Hegde, (2008) 4 SCC 54 19

Kumara Nand v. Sharma (1967) 2 S.C.R. 889; Inder Lall v. Lal Singh AIR 1961 6

Raj. 122

Kunjulal Yadav v. Parasram Sharma, AIR 2000 MP 235 12

Laxmi Khandsari v. State of U.P. AIR 1981 SC 873 12

Laxmi Raj Shetty v. State of Tamil Nadu, (1988) 3 S.C.C. 319 6

Laxmi Raj Shetty v. State of Tamil Nadu, (1988) 3 SCC 319 5

LIC India v. Consumer Education and Research Centre, AIR 1995 SC 1811 9

Madan Singh v. state of Rajasthan, 1997 AIHC 2413(Raj). 8

Madhav Rao Jivaji Rao Scindia v. Union of India, (1971) 1 SCC 85 27

Maneka Gandhi v. Union of India, (1978) 1 SCC 248 27

Maneka Gandhi V. Union of India, AIR 1978 SC 597 9

Manuel Theodore D'Souza's case, 2000 (2) BCR 244 21

Megh Singh v. State of Punjab, 2003 Cr. L.J.4329(S.C.) 14

Mohd. Jahangir Pathan v. Satte of Gujrat, 1995 CrLJ 671 (Guj) (DB) 3

Murthy Match Works v. CCE, (1974) 4 SCC 428 13

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Narendra Nath Mitra v. State, 2000(2) CHN 782 2

Narendra singh Rajawat v. Thakur Mohan Singh KEnota, AIR 2002 Raj 218 9

National Legal Services Authority v Union of India (―NALSA‖), Writ Petition 28

(Civil) No.400 Of 2012

Om Kumar v. Union of India, AIR 2002 SC 3689 10

Pathan Hussain Basha v. State of A.P., (2012) 8 SCC 594 15

People's Union for Civil Liberties v. Union of India (2005) 2 SCC 436 21

Pratap Singh v. State of Jharkhand, (2005) 3 SCC 551 12

Quamarul Islam v. S.K. Kanta And Ors, 1994 (1) SCR 210 5

R. v. Fantle, 1959 Cri L Review 584 18

Raju alias Mama alias Ram Gopal v. State of Uttar Pradesh, 2004 (3) A.C.R. 1

2249 (All.).

Ramesh Haldar v. State of Orissa, 2002 CrLJ NOC 46 : (2001) 92 CLT 27. 2

Ratan Lal Soni vs The State Of Rajasthan And Ors, 1994 (1) WLC 679 6

Roop Chand Adlakha v. DDA, 1989 Supp (1) SCC 116 13

Sadasiv V. State of Orissa, 1956 SCR 794(806) 8

Sadasiv V. State of Orissa, 1956 SCR 794(806). 9

Salil Bali v. Union of India, (2013) 7 SCC 705 11

Sharma Transport v. Govt. of A.P., AIR 2002 SC 322 10

Shayra Bano V. Union of India, (2017) 9 SCC 1. 20

Sheo Swarupv. King Emperor (1933-34) 61 IA 398; AIR 1934 PC 227 (2) 18

Sher Singh v. State of Haryana, (2015) 3 SCC 724 16

Shiv Kumar v. State of Chattisgarh, 2006(45) A.I.C. 812 (Chatt.). 1

Shrikishan v Sate of Rajasthan, (1955) 2 SCR 531 8

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Sidhartha Vashisht @ Manu Sharma vs State (Nct Of Delhi),(2010) 6 SCC 1. 15

Stae of H.P. v. Vedgiri Baba, 2007 CrLJ (NOC) 857 (HP) 2

State of Gujrat V. Abdul Raid Ibrahim Mansuri, 1991 Cr. L.R. 101 (Guj). 14

State of Rajasthan v. Bhupendra Singh, AIR 2002 Raj 244 9

State of Travancore-Cochin v. Shanmugha Vilas Cashewnut Factory, AIR 1953 16

SC 333

State of U.P. v. Kamala Palace, AIR 2000 SC 633 12

State of W.B. v. Kesoram Industries Ltd., (2004) 10 SCC 201 27

State of W.B. v. Mir Mohammad Omar, (2000) 8 SCC 382 17

State of West Bengal v. Anwar Ali, 1952SCR 284(320). 8

State of West Bengal v. Anwar Ali, AIR 1952 SC 75 9

Suraj Mall v. I.T. Investigation Commission, AIR 1954 SC 545. 10

Surat Surveyors Planners Association v. State of Gujrat, AIR 2002 Guj. 344 12

Tarapore & Co., Madras & Anr., AIR 1971 SC 1 21

Teer Singh v. State, Through Deputy Narcotic Commissioner, Mahanagar, 14

Lucknow, 1989 E.F.R., 652 (All.).

Tota Singh v. State of Punjab (1987) 2 SCC 529 18

Transport & Dock Workers Union v. Mumbai Port Trust and Anr.(2011) 2 SCC 13

575

U.P. Steels Ltd v. State of U.P,, 2003 AIHC 1413(All). 12

CONVENTIONS

European Convention for the Protection of Human Rights and Fundamental 15

Freedoms (1950), Art. 6.2

European Convention on human Rights, 1953, Art. 14 8

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International Covenant on Civil and Political Rights (1966), Art. 14.2. 15

U.N. Covenant on Civil and Political Rights, 1966, Art. 14. 8

Universal Declaration of Human Rights (1948), Article 11(1) . 15

Universal Declaration of Human Rights, 1948, Art. 11(1) 17

Universal Declaration of Human Rights, 1948, Art. 7. 8

BOOKS

DEBJYOTI DE, GUIDE TO NARCOTICS DRUGS AND PSYCHOTROPIC SUBSTANCE, 2

ACT, 2009, pg 138. (2nd Ed.).

DR. D.D. BASU, COMMENTARY ON CONSTITUTION OF INDIA, Pg 1391, (8th 8

ed.2007).

MALIK, COMMENTARIES ON NDPS ACT, 1985, pg. 376 (2nd Ed. Vol 2 2012). 13

RATANLAL AND DHIRAJLAL, THE INDIAN PENAL CODE, (32nd Enlarged Ed. 2010). 4

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STATEMENT OF JURISDICTION

The Appellant, SSA, has approached the Hon‘ble High Court of Stark Pradesh against the

Order of the Special Court u/s 101(5) of The Juvenile Justice (Care and Protection of

Children) Act, 2015 r/w sectin 374(2) of the Cr.P.C.

The petitioner, N.G.O. Ajeevan Medical Trust, has approached the Hon‘ble High Court of

Stark Pradesh under Art. 226 of the Constitution of Winterfell Act, 1949.

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STATEMENT OF FACTS

TIMELINE OF EVENTS

Union of Winterfell is a country situated in the Northern kingdom of Westros. The State

concerned is the State of Stark Pradesh one of the 29 states of Winterfell. Sham Savera Angel

(further mentioned as ―SSA‖) is a well-known God women and leader of Manav Cult. The

cult was funding a medicinal research program in the name of NZT-CANCER, of which

various units were established in the State of Stark Pradesh. The timeline of events and

occurrences concerned is provided hereunder:

2.01.2016 Mr. Jendri Singh lodged an F.I.R. u/s 154 Cr.P.C. without showing

any sufficient cause, alleged that SSA carried illicit activities with

Republic of Meereen in the veil of spiritual activities.

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

nothing incriminating.

9.02.2016, 11:25 P.M.  Further, another raid without warrant without recording any

reason and sufficient cause was made. 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,

i.e. after 6 hrs. of search 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.

 Same night search raids were done to arrest SSA but she

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was not present and could not be arrested that night.

 Staff member of pharmaceutical unit, Mr. Raamsay

Narayan, was arrested from the site. During the investigation he

said that he did not know much about the drugs but all the products

were used for medicine purpose and research to cure cancer.

 During this period video showing SSA surfaced over media

channels primarily shown by Winterfell Samachar. Videos featured

SSA talking to Winterfell liberators who had boxes of illegal drugs

with them. The video was alleged to be released by group of

hackers known as ‗Anonymous‘. Forensic test whether or not the

video was doctored were performed.

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

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

Winterfell with 20 million Winterfellian dollars.

Mr. Birpaal Singh, Adi Manav Cult‘s chief in his barbaric act put out a bounty of 10 million

Wintrfellian dollars on her head.

It was found and verified by cogent sources that SSA was born on 20th June 1999 making her

to be 16 years 8 month and 15 days old, therefore the Juvenile Justice Board assessed her to

be tried her as an adult for the heinous nature of crime.

PROCEEDINGS

Charges framed against SSA were:

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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.

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 organization Of The 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.

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. The PIL and the appeal being the subject matter of same

questions of law are clubbed to be heard together.

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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. 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 appellants are not liable u/s 4 of the Dowry prohibition Act as

the essentials of dowry has not been fulfilled as laid down in section 2 of the dowry

prohibition act.

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

(Care and Protection) Act, 2000 to be held unconstitutional.

It is humbly submitted that the distinction so made is arbitrary and is in violation of Art.14

and Art.15 (3) of the Constitution of India Act, 1949. Furthermore it is also contended that a

The State shall not make any law which takes away or abridges the rights conferred by this

Part and any law made in contravention of this clause shall, to the extent of the contravention,

be void as mentioned in Art.13(2) of the Constitution of India Act, 1949.

3. The P.I.L. filed by N.G.O. Ajeevan Medical Trust challenging the constitutional

validity of the NDPS Act, 1985, is maintainable.

It is humbly contended by the Appellants that the In-laws are not liable u/s 304B of the IPC,

1860

4. 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.

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It is humbly submitted before this Hon‘ble Court that the P.I.L. filed is maintainable per-se as

it involves:

a) Some action, inaction or state of affairs;

b) Which causes the deprivation of the right of the large number of the people; or

causes a large number of people to suffer a similar wrong;

c) The right is sought to be enforced or the wrong redressed, through a petition to the

appropriate courts;

d) By a public spirited person or an association of person acting on behalf of those

injured.

Moreover the essentials of certain international instruments for which the Winterfell is

signatory has also been violated.

a) United Nations Standard Minimum Rules for the Administration of Juvenile Justice

(The Beijing Rules), 1985.

b) The United Nations Guidelines For The Preventions Of Juvenile Delinquency (The

Riyadh Guidelines), 1990

c) The United Nations Rules For The Protection Of Juvenile Deprived Of The Liberty,

1990

d) The Vienna Guidelines For Action Of Children In The Criminal Justice System,

1997

e) Convention On Rights Of Child, 1990

f) The Concluding Resolution Of Committee Of Child Rights ( Constituted Under

Convention),2000

g) Promotion And Protection Of Rights Of Children, General Resolution, 2007.

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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?

The instant case in hand is an appeal lying before this Hon‘ble Court against the order of

Special Court. Here, in the case various substantial questions of law are involved and

accordingly this appeal. It is pertinent to mention here that SSA who is an juvenile was held

guilty by the Special Court u/s § 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. This appeal challenges the finding of the Special Court who has erred in its decision

and jave not considered various factors and other substantial questions of law.

In the instance case where trial Court has not taken into account compliance of the procedure

to the provisions of law under NDPS, Act, getting the permission to carry out raid for this

single reason the appeal was required to be allowed and important aspects of the root of the

matter were not taken into account.1 Heavy punishment is imposed under NDPS Act . in

these circumstance, non-compliance with the mandatory sections of the Act in respect of

search and seizure will cause injustice. Under such circumstances, conviction and sentence

passed against the accused cannot be maintained and shall be set aside.2 It is also pertinent to

mention here that it is obligatory on the part of prosecution to establish by cogent and reliable

evidence that the appellant was in conscious possession of the contraband article. In the

present case said possession hs not been proveed therefore the impugned judgement of the
1
Shiv Kumar v. State of Chattisgarh, 2006(45) A.I.C. 812 (Chatt.).
2
Raju alias Mama alias Ram Gopal v. State of Uttar Pradesh, 2004 (3) A.C.R. 2249 (All.).

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Special court is liable to be set aside.3 In the present case during the time of search and

seizure the accused was not present and hence the prosecution has failed to establish its case

beyond reasonable doubt hence the conviction is liable to be set aside. Also, where the

prosecution has failed to establish that in a shrine which was an open affair that accused and

only accused was found in conscious possession of the contraband and scope lies for a benefit

of doubt.4 Exclusive possession is the factum which is required to be proved beyond

reasonable doubt.5 In a case where the huge quantity of ganja was found in the absence of the

accused and the prosecution evidence was not convincing that the accused was in exclusive

possession and there was no evidence to prove beyond reasonable doubt that the accused was

the dealer in contraband seize. Acquittal of accused was held lawful.6

The case of High Court on same lines where the second time search and seizure was made

and that was held that search again was rehearsed and the case was based on second search

and seizure. The Hon‘ble High Court acquitted the accused.7 In the present case also the

prosecution has failed to establish the conscious possession of the contraband and therefore

the acquittal shall be made.8 The prosecution must establish beyond reasonable doubt that the

place from which contraband was seized was in exclusive conscious possession.9 It is also

3
Bhawan Saiv. State of M.P., 2009 (77) A.I.C. 937 (Chhatt.).
4
Bashir Shiekh v. State of Goa, 1991 (1) Mah. L.R. 1083(BOM.).
5
Narendra Nath Mitra v. State, 2000(2) CHN 782.
6
Ramesh Haldar v. State of Orissa, 2002 CrLJ NOC 46 : (2001) 92 CLT 27.
7
Stae of H.P. v. Vedgiri Baba, 2007 CrLJ (NOC) 857 (HP).
8
Jeevan Chand v. State of Goa, 1988 (1) Crimes 447: 1988 Crlj 271 (Bom.) (DB).
9
DEBJYOTI DE, GUIDE TO NARCOTICS DRUGS AND PSYCHOTROPIC SUBSTANCE, ACT, 2009, pg 138. (2nd Ed.).

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necessary to tae into account that one of the public witness went hostile while examination

and trial. Merely on that basis the conviction was set aside.10

In a case it was also held that th accused ws not present at the time of search and seizure.

Therefore, it was difficult to accept the prosecution‘s case that the respondent was in

conscious possession, if found from the hidden place.11 The prosecution has failed to prove

the unlawful conscious possession of the contraband qua the appellant. The case in hand also

placed in the suspension of the conscious possession by SSA. Merely finding the drugs near

the vicinity of the place does not render the conscious possession of the accused therefore the

charges so pressed over the accused are liable to be set aside. Apart from the landmark

judgements herein mentioned there lies plethora of the precednts wherein it is explicitly

mentioned that presumption of mens-rea be taken onle after it is established by the

prosecution the conscious possession of contraband with the accused. In the present case

hereby the prosecution has failed to establish any such co-relation therefore it is also humnbly

submitted that the charges be set aside. Furthermore, 1

Rule 11(11) of the JJ Rules, 2007 states that the Police are not required to file an FIR or a

charge-sheet while dealing with cases of juveniles in conflict with the law. Instead, they must

only record the information of the offence in the general daily diary, followed by a report

containing the social background of the juvenile, circumstances of the apprehension and the

alleged offence. The system contemplates the immediate production of the apprehended

juvenile before the JJ Board, with little scope for police investigation. Before the first

hearing, the police are only required to submit a report of the juvenile‘s social background,

the circumstances of apprehension and the alleged offence to the Board (Rule 11(11)).

10
Mohd. Jahangir Pathan v. Satte of Gujrat, 1995 CrLJ 671 (Guj) (DB)
11
B.B. Hugar v. Naushad Hasan Pathan, 2005 (2) BCrC. 259 (Bom.).

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In the present case the said procedure is not complied with.

It is also pertinent to mention here that in the present case Art. 121 of the W.P.C is not in

compliance with its ingredients. The essentials of the charge are as follows:

1) Waged war; or

2) Attempted to wage war; or

3) Abetted the waging war.12

The waging war is the attempt to accomplish by violence any purpose of public nature.13

Here, one of the necessary element is violence that in present case has not complied with.

Therefore in the furtherance of the other ingredients the ingredient required to establish

waging war are not complied with hence, the accused shall not be held guilty under such

circumstances.

For the charges under § 20, § 39, § 40 of Unlawful Activities (Prevention) Act, the only

evidence present is the video aird by different media channels.

It is pertinent to mention the credibility of the video:

1) Release by hackers known as ―Anonymous‖.

2) No expert opinion herein mentioned by the Court.

It is to be noted that the video must comply with sec 65(b) of the evidence act to be

accepted in court of law.

Newspaper reports by themselves are not evidence of the contents thereof. Those reports are

12
RATANLAL AND DHIRAJLAL, THE INDIAN PENAL CODE, (32nd Enlarged Ed. 2010).
13
Hasart Mohani, (1922) 24 Bom LR 885.

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only hearsay evidence. These have to be proved and the manner of proving a newspaper

report is well settled. Newspaper, is at the best secondary evidence of its contents and is not

admissible in evidence without proper proof of the contents under the Indian Evidence Act.

The learned trial judge could not treat the newspaper reports as duly 'proved' only by the

production of the copies of the newspaper.14

It is a very well settelled principle that in a landmark case:

―We cannot take judicial notice of the facts stated in a news item being in the nature of

hearsay secondary evidence, unless proved by evidence aliunde. A report in a newspaper is

only hearsay evidence. A newspaper is not one of the documents referred to in Section 78(2)

of the Evidence Act, 1872 which an allegation of fact can be proved. The presumption of

genuineness attached under Section 81 of the Evidence Act to a newspaper report cannot be

treated as proved of the facts reported therein. It is now well settled that a statement of fact

contained in a newspaper is nerely hearsay and, therefore, inadmissible in evidence in the

absence of the maker of the statement appearing in court and deposing to have perceived the

fact reported."15 In this case, the Supreme Court held:

Judicial notice cannot be taken of the facts stated in a news item being in the nature of

hearsay secondary evidence, unless proved by evidence aliunde. A report in a newspaper is

only hearsay evidence. Newspaper is not one of the documents referred to in Section 78(2) of

the Evidence Act by which an allegation of fact can be proved. The presumption of

genuineness attached under Section 81 of the Evidence Act to a newspaper report cannot be

treated as proved of the facts reported therein. A statement of fact contained in a newspaper is

merely hearsay and therefore inadmissible in evidence in the absence of the maker of the

14
Quamarul Islam v. S.K. Kanta And Ors, 1994 (1) SCR 210
15
Laxmi Raj Shetty v. State of Tamil Nadu, (1988) 3 SCC 319

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statement appearing in court and deposing to have perceived the fact reported.16 Section 81 of

the Evidence Act deals with presumption about the genuineness of documents narrated

therein. Even if newspapers are admissible in evidence without formal proof, the paper itself

is not proof of his contents. It would merely amount to an anonymous statement and cannot

be treated as proof of the facts stated in the newspaper. The statement of a fact in a

newspaper ismerely hearsay and is inadmissible in the absence of the marker of the statement

deposing to have perceived the fact reported.17

It is humbly submitted that A news item published in a newspaper without any further proof

of what had actually happened through witnesses is of no value. It is at best a second-hand

secondary evidence. Reporters collect information and pass it on to the editor who edits the

news item and then publishes it. In this process the truth might get perverted or garbled. Such

news items cannot be said to prove themselves although they may be taken into account

withother evidence if the other evidence is forcible.18

Henceforth, it is humbly submitted that in this case where the Special Court placed its

reliance only on the hearsay evidence and has not mentioned any other reliable source for

such conviction whereby the accused was held guilty and the grave miscarriage of justice was

done to her. SSA who is a philanthropist and runs the open affair of the shrine and is working

for the curing the diseases like cancer has been prejudiced. Therefore, the charges so put on

her shall be set aside to achieve the goal of ―justice‖.

16
Laxmi Raj Shetty v. State of Tamil Nadu, (1988) 3 S.C.C. 319
17
Ratan Lal Soni vs The State Of Rajasthan And Ors, 1994 (1) WLC 679.
18
Kumara Nand v. Sharma (1967) 2 S.C.R. 889; Inder Lall v. Lal Singh AIR 1961 Raj. 122.

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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?

In the present case, where in the abovementioned contention SSA was not in conscious

possession and the charges were not proved beyond reasonable doubt, but a substantial

question of law has arisen. In the instant case, it is also pertinent to mention that the

constitutional validity of JJ Act which is against the provision of Art 14 is also challenged so

that very object and the target of the legislation for welfare of the country be achieved. The

minor who is not culpable of any act or omission but is in ambit of the age group of 16-18

yrs. is treated as adult and its right of Equal protection and Equality before law is violated.

No person shall be deprived of such right. The class distinction so made and the classification

done is merely on the basis of the ―heinousness‖ which is determined on the basis of the scale

of punishment. It is also contended that this ambit is arbitrary and inconsistent with Art.14 of

the Constitution. It also refrain the juvenile to use its right as provided. In the present case

where SSA is a minor and is not in contravention with any law has faced such discrimination

and is the victim of arbitrariness done by legislature.

It is also pertinent to mention that prima-facie if sec. 2(33) and 18(3) are read together that

the classification do made is inconsistent with the provisions and law laid down in Art. 14 of

the constitution of Winterfell. Furthermore it is submitted to this Court that:

A. In Art 7 of the Universal Declaration of Human Rights say:

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―All are equal before law and are entitled without any discrimination to equal

protection of law.‖ 19

B. Art.14 of U.N. Covenant on Civil and Political Rights, 1966 also lays emphasis upon:

―All persons shall be Equal before Courts and Tribunals.‖20

C. Furthermore, Art. 14 of European Convention on Human Rights provides that:

―The enjoyment of the rights and freedom set forth in this convention shall be secured

without discrimination on any ground such as sex, race, colour, language, religion,

political or other opinion, national or social origin, association with a national

minority, property, birth or other status.‖21

Art. 14 of constitution of India provides:

Here equal protection means the right to equal treatment in similar circumstances22, both in

privileges23 conferred and in the liabilities24 imposed by the laws.25 Any of which has not

been followed in present case. There should be no discrimination between one person and

another if as regards the subject matter of the legislation their position is the same. All

persons shall be treated alike both in the privileges and liabilities imposed.26 Art. 14

envisaged doctrine of equality not only with persons similarly circumscribed, but also in

those cases where the act of ―state‖ in per se is arbitrary.27

19
Universal Declaration of Human Rights, 1948, Art. 7.
20
U.N. Covenant on Civil and Political Rights, 1966, Art. 14.
21
European Convention on human Rights, 1953, Art. 14.
22
Shrikishan v Sate of Rajasthan, (1955) 2 SCR 531
23
Sadasiv V. State of Orissa, 1956 SCR 794(806)
24
Food Corpn. Ltd. v. Bhanu Lodh, (2005) 3 SCC 618.
25
State of West Bengal v. Anwar Ali, 1952SCR 284(320).
26
DR. D.D. BASU, COMMENTARY ON CONSTITUTION OF INDIA, Pg 1391, (8th ed.2007).
27
Madan Singh v. state of Rajasthan, 1997 AIHC 2413(Raj).

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It is also submitted before this Hon‘ble Court that the entire problem under the equal

protection clause is one of the classification of drawing lines.28 Any person who is

discriminated against by State action is entitled to challenge the validity of the action.29

The maximum power of ‗punishment‘, on proof of guilt, is to send the juvenile to a special

home for three years.

The classification or differentia must have a rational or reasonable nexus30 with the object to

be achieved.31 It is also pertinent to mention here that the reasonableness is to be judged with

reference to the object of legislation and not moral consideration. 32 What is required is that it

must be real and substantial and must bear some just and reasonable relation to the object of

the legislation.33 For example, in a case the Travancore-cochin Land Tax Act authorised the

imposition of tax on land at a flat rate of 2rs. Per acre without reference to income. The Act

was held against the spirit of Art. 14 and, therefore, void because of lack of classification.34

Art. 14 strikes at arbitrariness in State action because an arbitrary action 35 involve negation in

equality.36

28
State of West Bengal v. Anwar Ali, AIR 1952 SC 75; Sadasiv V. State of Orissa, 1956 SCR 794(806).
29
Glass Chatons Association v. Union of India, AIR 1961 SC 1514(1517).
30
State of Rajasthan v. Bhupendra Singh, AIR 2002 Raj 244.
31
Narendra singh Rajawat v. Thakur Mohan Singh KEnota, AIR 2002 Raj 218.
32
Garg v. Union of India, AIR 1981 SC 2138.
33
LIC India v. Consumer Education and Research Centre, AIR 1995 SC 1811.
34
K.T.M. Nayyarv. State of Kerela, AIR 1967 SC 552.
35
Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487.
36
Maneka Gandhi V. Union of India, AIR 1978 SC 597.

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Every differentiation is not discrimination. But classification can be sustained only if it is

founded on pertinent and real differences as distinguished from irrelevant and artificial ones.

In a case37 it was held that test of permissible classification must fulfil two conditions:

1) Classification found must be on intelligible differentia which distinguishes persons or

things that are grouped together from others who are left out of the group.

2) The differentia so made have rational relations to the object sought to be achieved.

In Om Kumar v. Union of India38 it was held that, on statute being discriminatory

proportionality principle is applied and on arbitrariness Wednesbury principle is applied.

In case39, Wednesbury Principle were laid down and held that the court can interfere

when one of the following principles is satisfied:

a. the decision is contrary to law; or

b. relevant factors have not been considered; or

c. Irrelevant factors have been considered; or

d. The decision is one which no reasonable authority or person would have taken.

If a person who are similarly situated in relation to the object of the impugned legislation can

be made subject to the procedure which is substantially different from the ordinary procedure

at the option of the Executive, the law which authorises special procedure must be held to be

discriminatory.40 The expression arbitrary means, in an unreasonable manner, as fixed or

done capriciously or at pleasure without adequate determining principle, not found on the

nature of things, depending s the will alone.41

37
Ashutosh Gupta v. State of Rajasthan, AIR 2002 SC 1533.
38
Om Kumar v. Union of India, AIR 2002 SC 3689
39
Associated Provincial Picture House Ltd. V. Wednesburry Corporation, (1948) 1 K.B. 223
40
Suraj Mall v. I.T. Investigation Commission, AIR 1954 SC 545.
41
Sharma Transport v. Govt. of A.P., AIR 2002 SC 322

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It is submitted that the Act does not provide blanket immunity to juvenile offenders, as

contended. What the Act contemplates is a different procedure to deal with such offenders. If

found guilty, they are subjected to a different scheme of punishment. While supporting the

contentions advanced, the appellants has further submitted that the United Nations

Convention on the Rights of the Child, 1990 read with the concluding Resolution of the

Committee on Child Rights (constituted under the UN Convention) of the year 2000 qua

India and the General Resolution of the year 2007 clearly contemplate the MACR as 18 years

and mandates member States to act accordingly the strength of the elaborate academic and

research work placed on record has tried to persuade the Court to take the view that :-

The Act is an expression of legislative wisdom to treat all persons below 18 as juveniles and

to have an alternate system of dealing with such juveniles who come into conflict with law. It

is submitted that the constitutional validity of the Act has been upheld by a Coordinate Bench

in Salil Bali42 .It is also submitted that psychological/mental, intellectual and emotional

maturity of a person below 18 years cannot be objectively determined on an individual or

case to case basis and the fixation of the Minimum Age of Criminal Responsibility (MACR)

under the Act is a policy decision taken to give effect to the country‘s international

commitments. At the very outset, two initial hurdles to the present adjudication, the first is

that prior to the amendment the constitutional validity of the Act has been upheld in Salil Bali

and it is not necessary to revisit the said decision even if it be by way of a reference to a

larger Bench. To have a look at the international conventions, holding the field, to which

India has been a signatory.

Determination of the age of the juvenile is required to be made on the basis of documentary

evidence (such as birth certificate, matriculation certificate, or Medical Board examination).

42
Salil Bali v. Union of India, (2013) 7 SCC 705.

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Also, that the Act is a beneficial piece of legislation and must therefore receive its due

interpretation as a legislation belonging to the said category has been laid down by a

Constitution Bench of this Court in Pratap Singh vs. State of Jharkhand and Another43.In a

constitutional bench judgement it was held Courts must read the legislation literally in the

first instance. If such an intendment can be reasonably implied without undertaking what,

unmistakably, would be a legislative exercise, the Act may be read down to save it from

unconstitutionality. 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.44

From the above in depth discussion and arguments put forth it is crystal that there has been

discrimination on equal treatment and had no reasonable reaction to the object sought to be

achieved by law.45 A person setting up grievance of denial of equal treatment by law must

establish that between persons similarly circumstanced, some were treated to their prejudice

and the different treatment had no reasonable relation to the object sought to be achieved by

law.46 The classification or differentia must have a rational or reasonable nexus47 with the

object48 to be achieved.49

43
Pratap Singh v. State of Jharkhand, (2005) 3 SCC 551
44
DTC v. Mazdoor Congress, 1991 Supp (1) SCC 600
45
U.P. Steels Ltd v. State of U.P,, 2003 AIHC 1413(All).
46
State of U.P. Kamala Palace, AIR 2000 SC 633.
47
Kunjulal Yadav v. Parasram Sharma, AIR 2000 MP 235.
48
Surat Surveyors Planners Association v. State of Gujrat, AIR 2002 Guj. 344.
49
Laxmi Khandsari v. State of U.P. AIR 1981 SC 873.

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Classification or categorization need not be the outcome of a mathematical or arithmetical

precision in the similarities50 of the persons included in a class and there may be differences

amongst the members included within a particular class.51 So long as the broad features of the

categorization are identifiable and distinguishable and the categorization made is reasonably

connected with the object targeted, Article 14 will not forbid such a course of action.52

SSA who has been the victim of such arbitrary procedure and law laid down by the

legislature shall be reviewed by the Hon‘ble Court.

From the very inception the 2000 amendment made in the act was for the welfare of the child

which has been violated now and the object of rehabilitation has been deviated.

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 light of the facts and circumstances put-forth before this Hon‘ble Court are also in

correspondence with the NDPS Act as well. Here, after the perusal of the case of SSA the

NGO named Ajeevan Medical Trust has file a PIL challenging the constitutional validity and

the violation of basic doctrine of law presumption of innocence of the Act mentioned herein.

It is clear that the onus to proof that the possession of confiscated material lies completely on

the accused. This section contains the rule of evidence and provides that in any prosecution

under this Act, the existence of culpable mental state shall be presumed.53 Under sec 35 of the

NDPS Act, the presumption is for the existence of culpable mental state and the burden shifts

50
Murthy Match Works v. CCE, (1974) 4 SCC 428
51
Roop Chand Adlakha v. DDA, 1989 Supp (1) SCC 116
52
Transport & Dock Workers Union v. Mumbai Port Trust and Anr.(2011) 2 SCC 575
53
MALIK, COMMENTARIES ON NDPS ACT, 1985, pg. 376 (2nd Ed. Vol 2 2012).

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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.54 The statement of the accused and his defence is, therefore, required

to be considered in view of the statutory presumption.55

3.1. STATUTORY PRESSUMPTION REGARDING MENS-REA

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 it was not a conscious possession has to establish it, because how

he came to the possession is within his special knowledge.56 Similar view was taken in

another landmark case.57

Sections 35 and 54 of the NDPS Act, raise certain adverse presumption against the accused

persons. According to section 35 of the Act, if for an offence under this act a culpable mental

state of the accused is required, the court shall presume the existence of such mental state.

This culpable mental state includes intention, motive, knowledge, etc. Section 54 of the Act,

further indicates that it is for the accused to account for satisfactory the possession of the

recovered narcotic goods.58

54
Balbir v. State, 1995 (1) D.L.R. 143.
55
State of Gujrat V. Abdul Raid Ibrahim Mansuri, 1991 Cr. L.R. 101 (Guj).
56
Megh Singh v. State of Punjab, 2003 Cr. L.J.4329(S.C.)
57
Karaj singh v. State of Punjab, 2010 Cr.L.J.145(P.&H.)
58
Teer Singh v. State, Through Deputy Narcotic Commissioner, Mahanagar, Lucknow, 1989 E.F.R., 652 (All.).

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3.2. VIOLATIVE OF FAIR TRAIL AND ART. 20 AND OTHER INTERNATIONAL OBLIGATIONS.

It is essential for the maintenance of dignity of Courts and is one of the cardinal principles of

rule of law in a free democratic country, that the criticism or even the reporting particularly,

in sub-judice matters must be subjected to check and balances so as not to interfere with the

administration of justice.59

It is now a well-settled principle that presumption of innocence as contained in Article 14(2)

of the International Covenant on Civil and Political Rights is a human right.60 Presumption of

innocence is a human right.61

It is also vehemently submitted before this bench that some doubts remain on the aspect of

presumption of innocence, deemed culpability and burden of proof. In Pathan Hussain

Basha v. State of A.P.62 after extensively extracting from the previous judgment authored by

him (but without indicating so) expressed two opinions—(a) that Article 20 of the

Constitution of India contains a presumption of innocence in favour of a suspect, and (b) that

the concept of deeming fiction is hardly applicable to criminal jurisprudence. The logical

consequence of both these conclusions would lead to the striking down of Section 8-A of the

Dowry Act, Section 113-B of the Evidence Act, and possibly Section 304-B IPC, but neither

decision does so. So far as the first conclusion is concerned, suffice it to reproduce Article 20

of the Constitution:

―20. Protection in respect of conviction for offences.—

59
Sidhartha Vashisht @ Manu Sharma vs State (Nct Of Delhi),(2010) 6 SCC 1.
60
Universal Declaration of Human Rights (1948), Article 11(1) .
61
European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), Art. 6.2;

International Covenant on Civil and Political Rights (1966), Art. 14.2.

62
Pathan Hussain Basha v. State of A.P., (2012) 8 SCC 594 : (2012) 3 SCC (Cri) 989.

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(3) No person accused of any offence shall be compelled to be a witness against

himself.‖

Even though there may not be any constitutional protection to the concept of presumption of

innocence, this is so deeply ingrained in all common law legal systems so as to render it

ineradicable even in India, such that the departure or deviation from this presumption

demands statutory sanction. This is what the trilogy of dowry legislation has endeavoured to

ordain.63 The Concise Oxford Dictionary defines the word ―presume‖ as: supposed to be true,

take for granted; whereas ―deem‖ as: regard, consider; and whereas ―show‖ as: point out and

prove. Black's Law Dictionary (5th Edn.) defines the word ―show‖ as—to make apparent or

clear by the evidence, to prove; ―deemed‖ as—to hold, consider, adjudge, believe, condemn,

determine, construed as if true; ―presume‖ as—to believe or accept on probable evidence; and

―presumption‖, in Black's, ―is a rule of law, statutory or judicial, by which finding of a basic

fact gives rise to existence of presumed fact, until presumption is rebutted‖.

The prosecution may sometimes rely on presumptions of fact to satisfy the evidential burden

of proof (e.g. the fact that a woman was subjected to violence during sexual intercourse will

normally raise a presumption to support a charge of rape and prove that she did not

consent).64

The Constitution is the grund norm on which the legal framework has to be erected and its

plinth cannot be weakened for fear of the entire structure falling to the ground. If the

Constitution expressly affirms or prohibits particular state of affairs, all the statutory

provisions which are incongruent thereto must be held as ultra vires and, therefore, must not

be adhered to. We have already noted that Article 2065 of Winterfell Constitution while not

63
Sher Singh v. State of Haryana, (2015) 3 SCC 724 : 2015 SCC OnLine SC 23
64
State of Travancore-Cochin v. Shanmugha Vilas Cashewnut Factory, AIR 1953 SC 333.
65
Constitution of India, 1950, Art 20.

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affirming the presumption of innocence does not prohibit it, thereby, leaving it to Parliament

to ignore it whenever found by it to be necessary or expedient. A percutaneous scrutiny

reveals that some legal principles such as presumption of innocence can be found across a

much wider legal system, ubiquitously in the Common Law system, and restrictively in the

Civil Law system. It seems to us that the presumption of innocence is one such legal principle

which strides the legal framework of several countries owing allegiance to the Common Law;

even International law bestows its imprimatur thereto. Article 11(1)66 of the Universal

Declaration of Human Rights, 1948 states—

―11. (1) Everyone charged with a penal offence has the right to be presumed innocent

until proved guilty according to law in a public trial at which he has had all the guarantees

necessary for his defence.‖

Article 14(3)(g) of the International Covenant on Civil and Political Rights, 1966, assures as

a minimum guarantee that everyone has a right not to be compelled to testify against himself

or to confess guilt. Article 6 of the European Convention for the Protection of Human Rights

and Fundamental Freedoms, firstly, promises the right to a fair trial and secondly, assures that

anyone charged with a criminal offence shall be presumed innocent until proved guilty

according to law. We may immediately emphasise that the tenet of presumed innocence will

always give way to explicit legislation to the contrary. The presumption of innocence has also

been recognised in certain circumstances to constitute a basic human right. The deeming

provision of presumption of innocence in NDPS Act, therefore, is neither a novelty in nor an

anathema to our Criminal Law jurisprudence.67

66
Universal Declaration of Human Rights, 1948, Art. 11(1).
67
State of W.B. v. Mir Mohammad Omar, (2000) 8 SCC 382 : 2000 SCC (Cri) 1516

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The earliest case that dealt with the controversy in issue was Sheo Swarupv. King

Emperor [(1933-34) 61 IA 398 : AIR 1934 PC 227 (2)] . In this case 68, the ambit and scope

of the powers of the appellate court in dealing with an appeal against acquittal has been aptly

elucidated by the Privy Council. Lord Russell writing the judgment has observed as under (at

AIR p. 230): (IA p. 404)

Presumption of innocence in favour of the accused further gets reinforced and strengthened

by the acquittal of the trial court. 69

It stems out of the fundamental principle of our criminal jurisprudence that the accused is

entitled to the benefit of any reasonable doubt. If two reasonably probable and evenly

balanced views of the evidence are possible, one must necessarily concede the existence of a

reasonable doubt.70 ‗A reasonable doubt‘, it has been remarked, ‗does not mean some light,

airy, insubstantial doubt that may flit through the minds of any of us about almost anything at

some time or other, it does not mean a doubt begotten by sympathy out of reluctance to

convict; it means a real doubt, a doubt founded upon reasons.71

Where two views are possible on an appraisal of the evidence adduced in the case and the

court below has taken a view which is a plausible one, the appellate court cannot legally

interfere with an order of acquittal even if it is of the opinion that the view taken by the court

below on its consideration of the evidence is erroneous.72

In a landmark judgement the Court observed as under

68
Sheo Swarupv. King Emperor (1933-34) 61 IA 398; AIR 1934 PC 227 (2)
69
Ghurey Lal v. State of U.P., (2008) 10 SCC 450; (2009) 1 SCC (Cri) 60.
70
K. Gopal Reddy v. State of A.P. (1979) 1 SCC 355; 1979 SCC (Cri) 305.
71
R. v. Fantle, 1959 Cri L Review 584.
72
Tota Singh v. State of Punjab (1987) 2 SCC 529 : 1987 SCC (Cri) 381.

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The golden thread which runs through the web of administration of justice in

criminal case is that if two views are possible on the evidence adduced in the

case, one pointing to the guilt of the accused and the other to his innocence,

the view which is favourable to the accused should be adopted. Such is not a

jurisdiction limitation on the appellate court but Judge-made guidelines for

circumspection. The paramount consideration of the court is to ensure that

miscarriage of justice is avoided.73

The presumption of innocence is available to him under the fundamental principle of criminal

jurisprudence that every person shall be presumed to be innocent unless he is proved guilty

by a competent court of law.74

When the trial court finds so many serious infirmities in the prosecution version, then the trial

court was virtually left with no choice but to give benefit of doubt to the accused according to

the settled principles of criminal jurisprudence.75 In case of Krishna Janardhan Bhat v.

Dattaraya G. Hegde76 the Supreme Court held that the presumption of innocence is a human

right. Article 6(2) of the European Convention on Human Rights provides: ―Everyone

charged with a criminal offence shall be presumed innocent until proved guilty according to

law.‖ in a constitutional bench judgement it was held that although India is not bound by the

aforementioned Convention and as such it may not be necessary like the countries forming

European countries to bring common law into land with the Convention, a balancing of the

accused‘s rights and the interest of the society is required to be taken into consideration. In

73
Bhagwan Singh v. State of M.P. (2002) 4 SCC 85; 2002 SCC (Cri) 736
74
Chandrappa v. State of Karnataka (2007) 4 SCC 415; (2007) 2 SCC (Cri) 325
75
Ghurey Lal v. State of U.P., (2008) 10 SCC 450; (2009) 1 SCC (Cri) 60
76
Krishna Janardhan Bhat v. Dattaraya G. Hegde, (2008) 4 SCC 54

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India, however, subject to the statutory interdicts, the said principle forms the basis of

criminal jurisprudence.77

Henceforth, it can be concluded and explicitly clear that sec. 35 r/w sec 54 provides arbitrary

and inconsistently vast power against the accused and lay the heavy and cruel burden on the

accused to prove its innocence which is contrary to the basic principle of jurisprudence and

against the Art.20 and 21 of the Constitution of the Winterfell. Therefore, such law should be

scrutinized and the power vested in the judiciary be implemented to review and upheld the

said provisions to unconstitutional so the extent of very object of achieving justice be

obtained.

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 ?

In the PIL where the country Winterfell by making amendment and arbitrary classification

has been violated the various obligations and international obligations that shall be followed

by the country. The said provisions and classification has been challenged in the present PIL

for the interest of justice in large. Where the Supreme Court has held that there is a prima

facie presumption that Parliament did not intend to act in breach of international law,

including State treaty obligations and it is well settled that in construing any provision in

domestic legislation which is ambiguous, in the sense that it is capable of more than one

meaning, the meaning which conforms most closely to the provisions of any international

77
Shayra Bano V. Union of India, (2017) 9 SCC 1.

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instrument is to be preferred, in absence of any domestic law.78 In a case79 it was also

reiterated that the international treaties are to be kept in mind. Of course it is on the discretion

of the parliament under Art.253 which lays the emphasis upon 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. The Constitution Bench further observed

as under ―the Supreme Court was considering important points in respect of international

commercial arbitration arising out of a suit instituted on the original side of the Madras High

Court. It is not necessary to go into the facts of that case, but the observations of the Supreme

Court made while dealing with the question as to how domestic law is to be construed when

it is likely to conflict with or trench on treaty obligations are important for the case.”80

The Supreme Court quoted Halsbury's Laws of England (Vol.36 page 414) where it is stated

that there is a presumption that Parliament does not assert or assume jurisdiction which goes

beyond the limits established by the common consent of nations and statutes are to be

interpreted provided that their language permits, so as not to be inconsistent with the comity

of nations or with the established principles of International Law.

The comity of nations requires that Rules of International Law may be accommodated in the

Municipal Law even without express legislative sanction provided they do not run into

conflict with Acts of Parliament81.

78
People's Union for Civil Liberties v. Union of India (2005) 2 SCC 436.
79
Manuel Theodore D'Souza's case, 2000 (2) BCR 244,
80
Tarapore & Co., Madras & Anr., AIR 1971 SC 1
81
Gramophone Company of India Limited v. Birendra Bahadur Pandey & Ors. , AIR 1984 SC 667.

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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”. Even so, until the municipal law is changed to

accommodate the Government what binds the court is the former, not the latter. 82

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. 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 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;

82
Jolly Verghese v. Bank of Cochin, AIR 1980 SC 470.

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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.

It is clear that the Beijing Rules do not prohibit detention of a juvenile if he is proved to have

committed a violent, serious offence, or to have repeatedly committed such serious offences

though Rule 17.2 of the Beijing Rules prohibits the imposition of capital punishment of

juveniles. Thus, the Rules do not advocate leniency in dealing with such offenders but only

contemplate that detention be limited to the most serious cases where no other alternative is

found appropriate after careful consideration.

The Convention on the Rights of the Child, 1990 (―CRC‖), in Article 1, adopts a

chronological definition of a ―child‖, viz. less than 18 years old, unless majority under

national legislation is attained earlier:

―For the purposes of the present Convention, a child means every human being below the age

of eighteen years unless under the law applicable to the child, majority is attained

earlier.‖ Article 37(a) of the CRC prohibits the imposition of capital punishment and life

imprisonment without possibility of release on offenders below 18 years of age. The CRC

further obliges State Parties to establish a minimum age below which children shall be

presumed not to have the capacity to infringe the penal law.

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).

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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 extracted

hereinbelow:

The Committee is concerned over the administration of juvenile justice in India and its

incompatibility with articles 37, 40 and 39 of the Convention and other relevant international

standards. The Committee is also concerned at the very young age of criminal responsibility

– 7 years – and the possibility of trying boys between 16 and 18 years of age as adults.

Noting that the death penalty is de facto not applied to persons under 18, the Committee is

very concerned that de jure, this possibility exists. The Committee is further concerned at the

overcrowded and unsanitary conditions of detention of children, including detention with

adults; lack of application and enforcement of existing juvenile justice legislation; lack of

training for professionals, including the judiciary, lawyers and law enforcement officers, in

relation to the Convention, other existing international standards and the 1986 Juvenile

Justice Act; and the lack of measures and enforcement thereof to prosecute officials who

violate these provisions.

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The Committee recommends that the State party review its laws in the administration of

juvenile justice to ensure that they are in accordance with the Convention, especially Articles

37, 40 and 39, and other relevant international standards such as the United Nations Standard

Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), the United

Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), the

United Nations Rules for the Protection of Juveniles Deprived of their Liberty and the Vienna

Guidelines for Action on Children in the Criminal Justice System.

The Committee recommends that the State party abolish by law the imposition of the death

penalty on persons under 18. The Committee also recommends that the State party consider

raising the age of criminal responsibility and ensure that persons under 18 years are not tried

as adults. In accordance with the principle of non-discrimination contained in article 2 of the

Convention, the Committee recommends article 29(h) of the 1986 Juvenile Justice Act be

amended to ensure that boys under 18 years are covered by the definition of juvenile, as girls

already are. The Committee recommends that the 1986 Juvenile Justice Act be fully enforced

and that the judiciary and lawyers be trained and made aware of it. The Committee further

recommends that measures be taken to reduce overcrowding, to release those who cannot be

given a speedy trial and to improve prison facilities as quickly as possible. The Committee

recommends that the State party ensure regular, frequent and independent monitoring of

institutions for juvenile offenders.‖ It is pursuant to the aforesaid concluding observations of

the Committee made in the year 2000 that the JJ Act was amended in the later part of that

year by having a uniform age of 18 for both male and female juveniles.

It needs to be clarified that the concluding observations of the Committee under Article 45 of

the UN Convention (CRC) are qua a particular State party whereas general comments of the

Committee under the same Article are authoritative interpretations addressed to all State

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parties. The above distinction between ―concluding observations‖ and ―general comments‖ is

highlighted to draw attention to the fact that in the meeting of the Committee held in Geneva

in the year 2007 certain general observations with regard to MCAR of 18 years were made

which would be applicable to State parties other than India as the law had already been

amended in our country pursuant to the concluding observations made by the Committee in

the year 2000 specifically qua India. The views of the Committee in respect of other member

States may be usefully taken note at this stage by extracting the recommendations in the

nature of general comments in paras 36, 37 and 38 of the Report:

 The Committee also wishes to draw the attention of States parties to the upper age-

limit for the application of the rules of juvenile justice. These special rules - in terms both of

special procedural rules and of rules for diversion and special measures - should apply,

starting at the MACR set in the country, for all children who, at the time of their alleged

commission of an offence (or act punishable under the criminal law), have not yet reached the

age of 18 years.

 The Committee wishes to remind States parties that they have recognized the right of

every child alleged as, accused of, or recognized as having infringed the penal law to be

treated in accordance with the provisions of article 40 of CRC. This means that every person

under the age of 18 years at the time of the alleged commission of an offence must be treated

in accordance with the rules of juvenile justice.

 The Committee, therefore, recommends that those States parties which limit the

applicability of their juvenile justice rules to children under the age of 16 (or lower) years, or

which allow by way of exception that 16 or 17-year-old children are treated as adult

criminals, change their laws with a view to achieving a non- discriminatory full application of

their juvenile justice rules to all persons under the age of 18 years. The Committee notes with

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appreciation that some States parties allow for the application of the rules and regulations of

juvenile justice to persons aged 18 and older, usually till the age of 21, either as a general rule

or by way of exception.

In a landmark case, in his minority judgement held that, while dealing with the provision of

the Constitution, the court should adopt such a construction as would, if possible not bring it

in conflict with the provisions of international law.83

In eleven judges bench it was held It may be readily admitted that, according to a well-

established principle of international law, the Beamtenabkommen, being an international

agreement, cannot, as such, create direct rights and obligations for private individuals. But it

cannot be disputed that the very object of an international agreement, according to the

intention of the contracting parties, may be the adoption by the parties of some definite rules,

creating individual rights and obligations and enforceable by the national Courts.84

In constitutional bench case85 it was observed India is a signatory to various international

treaties and covenants and being a party to WTO and GATT, it is obligated to fulfil its

transnational obligations.The constitution bench of seven judges has held, ―The statute should

be so interpreted as not to be inconsistent with the comity of nations or with the established

rules of international law.‖86

In Keshavnanda Bharti v. State of kerela, 13 judges bench gave their view ―It is only in cases

of doubt or ambiguity that the courts would interpret a statute as not to make it inconsistent

with the comity of nations or established rules of international law, but if the language of the

83
A.D.M. Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207.
84
Madhav Rao Jivaji Rao Scindia v. Union of India, (1971) 1 SCC 85
85
State of W.B. v. Kesoram Industries Ltd., (2004) 10 SCC 201
86
Maneka Gandhi v. Union of India, (1978) 1 SCC 248

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statute is clear, it must be followed notwithstanding the conflict between municipal law and

international law which results.‖87 Furthermore, In India the provisions of the Geneva

Conventions have been incorporated in the Geneva Conventions Act, 1960 (Act 6 of 1960).

According to the Treaties of European Communities, a State on becoming a member of the

European Economic Communities (EEC) has to give primacy to the Community laws over

the national laws. The principle of primacy of Community law was accepted in six countries

of the European communities. Three of them, namely, Netherlands, Luxembourg and

Belgium specifically amended their written Constitutions to secure, as far as possible, the

principle of the primacy of the Community law. In National Legal Services Authority v

Union of India88 (“NALSA”), a Bench of two judges, while dealing with the rights of

transgenders, adverted to international conventions acceded to by India including the UDHR

and ICCPR.international law has to be construed as a part of domestic law in the absence of

legislation to the contrary and, perhaps more significantly, the meaning of constitutional

guarantees must be illuminated by the content of international conventions to which India is a

party. India is a party to the International Covenant on Civil and Political Rights and the

International Covenant on Economic, Social and Cultural rights, adopted by the General

Assembly of the United Nations on the 16th December, 1966. The human rights embodied in

the aforesaid covenants stand substantially protected by the Constitution.89

In nine judges bench it was held that ―We have cared about neighbours and have strived to

be a welfare State. We have constructed great many things and achieved many more. We

have advanced on scientific fronts and reached distances in the universe which were

unfathomable five decades back. We have earned a respectable name in the international

87
Keshavanad Bharti v. State of Kerela, 1973 SC 1463
88
National Legal Services Authority v Union of India (―NALSA‖), Writ Petition (Civil) No.400 Of 2012.
89
K.S. Puttaswamy v. Union of India, Writ Petition (Civil) No 494 Of 2012.

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scenario. We have produced great artists, many leaders and great men. We were not scared so

easily by any adverse situation. First step in solving any problem troubling the present is

recognising that there is one India but India as a Union of States. States being independent

entities under the Constitution require resource to perform their duties under the Constitution.

Furthermore, it was also held notwithstanding anything contained in the earlier provisions of

Chapter 1 of Part XI is entrusted with the power to enact legislation for the entire territory of

India for implementing a treaty, agreement or convention with one or more countries or to

implement a decision at an international conference, association or other body. The non

obstante provision of Article 253 operates in relation to Articles 245 to 252. Hence, the

legislative powers of the States including in the area of taxation may be eclipsed where

Parliament has enacted a law to effectuate India's international obligations in pursuance of

Article 253.90

Here lies no doubt what the object and target of legislature should. In the present case all of

which is violated and thus the legal and fundamental right of SSA has been violated.

Therefore, there is violation of International obligations of which the country is signatory.

In the lights of the above mentioned arguments and contentions putforth where the minor

who is not in conflict o any law has faced grave miscarriage of justice shall be put back to her

normal life. Where she has just inherited the property and came to known about the business

and has many numbers of followers shall not be prejudiced. On perusal of the facts and

circumstances where Adi Manav Cult for their cult‘s expansion has framed SSA and the

conduct of putting bounty on the head by the chief of Adi Manav Cult shall be condemned. It

should also be taken into account the bonafide and innocence of SSA and all the charges be

set aside and err made by the Special Court be restored.

90
Jindal Stainless Ltd. v. State of Haryana, (2017) 12 SCC 1 : 2016 SCC OnLine SC 1260

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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 the present appeal and PIL be maintained.

2) That Shaam Savea Angel be acquitted of all the charges under NDPS Act, Juvenile

Justice ACT, Unlawful Activities and Prevention Act.

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

Children) Act, is declared as unconstitutional.

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

is held unconstitutional.

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

Children) Act, is declared to be 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 Appellant

MEMORIAL ON BEHALF OF THE APPELLANTS