ARGUMENTS ADVANCED

1. WHETHER THE PRESENT WRIT PETITION FILED BY THE PETITIONER

BEFORE THE HON’BLE SUPREME COURT OF THE REPUBLIC OF EL
DORADO IS MAINTAINABLE OR NOT?

[¶1] It is humbly contended that instant writ petition is not maintainable. The Respondent
seeks to establish that; (A) Petitioner does not have a locus standi, (B) There has been no
violation of Fundamental Right and (C) The petitioner is required to exhaust existed
alternative remedy.

(A) The petitioner does not have a locus standi

[¶2] Locus standi means a place of standing, a right of appearance in a Court of Justice. It
signifies the right to bring an action and to be heard. 1 No action lies in the Supreme Court
under Art. 32 unless there is an infringement of a Fundamental Right, 2 as the Supreme Court
has previously emphasized that “The violation of Fundamental Right is sine qua non of
exercise of right conferred by Art. 32.”3 In Hans Muller of Nurenberg v. Superintendent,
Presidency Jail, Calcutta and Ors.,4 the Supreme Court held that only a person aggrieved can
impugn any given piece of legislation under Art. 32. It is humbly submitted that, per curiam
Sachidanand Pandey v. State of West Bengal,5 courts must restrict free flow of case under
attractive name of writ.
[¶3] Jurisdiction of the Supreme Court under Art. 32 can be invoked only when Fundamental
Right has been infringed.6 No question other than relating to a Fundamental Right will be
determined in a proceeding under Art. 32.7 Thus, where there is no infringement of
Fundamental Right or scope for enforcement of any Fundamental Right, the writ petition is
not maintainable on the fragile ground. 8 In addition to this, a person acquires a locus standi,
when he has to have a personal or individual right which has been violated or threatened to be

1
Aiyar Ramanatha, P., Concise Law Dictionary, LexisNexis Buttersworth Wadhwa Nagpur, (2009).
2
Andhra Industrial Works v. Chief Controller of Imports, AIR 1974 SC 1539; See also, Prathyasa Mental
Health Counselling Forum v. State of Kerala, (2020) SCC 2314 Ker.; Guruvayoor Devaswom Managing
Committee v. C.K.Rajan, (2003) 7 SCC 546.; Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of
India, (1981) 1 SCC 246.; S.P. Gupta v. Union of India, (1981) Supp SCC 87.; D.S. Nakara & Others. v. Union
of India, AIR 198 SC 130.
3
Fertilizer Corp. Kamgar Union v. Union of India, AIR 1981 SC 344.
4
Hans Muller of Nurenberg v. Superintendent, Presidency Jail, Calcutta and Ors., AIR 1955 SC 367.
5
Sachidanand Pandey v. State of West Bengal, (1987) 2 SCC 295.
6
Gopal Das v. Union of India, AIR 1955 SC 1.
7
Coffee Bd. v. Joint C.T.O., AIR 1971 SC 870.
8
Federation of Bar Association in Karnataka v. Union of India, (2000) 6 SCC 715.
violated.9 Since, no right of petitioner has been infringed, he has no locus standi before the
Court. Where writ petition is challenging the Constitutional validity of any provision, then
the petitioner should file writ petition before High Court under Art. 226 of the Constitution. 10
Mere apprehension that the petitioner would be deprived of his Fundamental Right is not
enough to invoke jurisdiction of Court under Art. 32. 11 Unless satisfactory reasons are there
in this regard, filing of petition in such matters directly under Art. 32 of Constitution is to be
discouraged.12 It has been held that if a person who comes to the Court with a writ with
vested interests, improper motion or actuated by a desire to win notoriety or cheap popularity
are not entitled to file writ petition.13 In Rabindranath Bose v. Union of India,14 it was
observed that no relief can be given to petitioners who, without any reasonable explanation,
approach SC under Art. 32.
(ii) There has been no violation of Fundamental Right
[¶4] When a person acquires a locus standi, he has to have a personal right which was
violated or threatened to be violated.15 In BALCO Employees’ Union (Regd.) v. UOI,16 Court
held that only ground on which a person can maintain a writ is where there has been an
element of violation of Article 21. There cannot be any such thing as absolute or uncontrolled
liberty wholly freed from restraint for that would lead to anarchy and disorder. 17 In the instant
case, there was neither violation Article 21 nor violation of Article 14 and 19(d) of the
Constitution.
(iii) The petitioner is required to exhaust existed alternative remedy
[¶5] Article 32 confers “extraordinary” jurisdiction, which is used where there is no alternate
efficacious remedy is available.18 The reason for this is: first, to reduce increasing pendency
of cases19 and second, to inspire faith in hierarchy of Courts and institution as a whole. The
power to grant writs under Article 32 is a discretionary power vested in the hands on this
Court.20 This Hon’ble Court has itself imposed a self-restraint on exercise of jurisdiction
under Article 32 where party invoking jurisdiction has an adequate alternative remedy in
9
Calcutta Gas Co. Ltd. v. State of West Bengal, AIR 1962 SC 1044.
10
State of West Bengal v. Ratnagiri Engineering Private Limited, (2010) 4 SCC 453.
11
Magan Bhai v. Union of India, (1970) 3 SCC 400; Sunil Poddar v. Union Bank of India, (2008) 2 SCC 326.
12
Union of India v. Paul Manickam, AIR 2003 SC 4622.
13
Ashok Kumar Pandey v. State of West Bengal, AIR 200 SC 1923.
14
Rabindranath Bose v. Union of India, (1970) 1 SCC 84.
15
Calcutta Gas Co. Ltd. v. State of West Bengal, AIR 1962 SC 1044.
16
BALCO Employees’ Union (Regd.) v. Union of India, (2002) 3 SCC 333.
17
Ram Jethmalani & Ors. v. Union of India & Ors., (2011) 8 SCC 1.
18
Secretary, Govt. of India v. Alka Shubhash Gadia, (1990) 3 SCR, Supl. 583.; Avinash Chand Gupta v. State of
Uttar Pradesh, (2004) 2 SCC 726.; Union of India v. Paul Manickam, AIR 2003 SC 4622.
19
PN Kumar v. Municipal Corp of Delhi, (1988) 1 SCR 732.
20
K.D. Sharma v. SAIL, (2008) 12 SCC 481.; Dalip Singh v. State of Uttar Pradesh, (2010) 2 SCC 114.
form of Article 226, although this Rule is a Rule of convenience and discretion not Rule of
law.21 It is well settled proposition of law that existence of alternative adequate remedy is a
factor taken into consideration in writ petition.22
[¶6] In Kanubhai Brahmbhatt v. State of Gujarat,23 the Supreme Court held that a petitioner
claiming of infraction of his fundamental right should approach High Court rather Supreme
Court in the first instance as High Court under Art. 226 has much wider than the powers of
the Supreme Court under Art. 32 of the Constitution. 24 It was held by the Hon'ble Court in the
case of Confederation of All Nagaland State Services Employees' Assn. v. State of
Nagaland,25 that the writ petitions should be agitated at the first instance before the High
Court of Judicature exercise of its power under Art. 226 of the Constitution.
Hence, it is humbly submitted that the present writ petition filed by the Petitioner before the
Hon’ble supreme court of the republic of El Dorado is not maintainable.

2. WHETHER THE ISSUANCE OF LOOK-OUT NOTICE BY THE EL DORADO

BUREAU OF IMMIGRATION IS BAD IN THE EYES OF LAW AND VIOLATES
ARTICLE 14, 19(1)(d) AND 21 OF THE CONSTITUTION OF THE REPUBLIC OF
EL DORADO?

[¶7] It is contended that Look-Out Notice is in accordance with law and in consonance with
Article 14, 19(1)(d) and 21. The Respondent seeks to establish that; (A) Look-Out Notice
passes test of Art. 14 as (i) There is an intelligible differentia in classification and (ii) There is
a reasonable nexus to object, (B) Look-Out Notice is not Arbitrary and Unreasonable as (i) It
is not Discriminatory and disproportionate, (C) It is in consonance with Article 19(1)(d) as
(i) Restriction under Article 19(5) is Reasonable, (D) Right to Life under Art. 21 is not
absolute and Look-Out Notice qualifies test of substantive due process and procedure
established by law as (i) It is in consonance with Principle of Natural Justice and Fair &
Proper Investigation.

(A) Look-Out Notice passes the test of Art. 14

[¶8] In Indira Sawhney v. Union of India,26 it was held that “Equality is one of the
magnificent corner-stones of Indian Democracy”. It is most respectfully submitted that
principle does not take away from state the power of classifying persons for legitimate
21
Mohammed Ishaq v. S. Kazam Pasha, (2009) 12 SCC 748.
22
Rashid Ahmed v. Municipal Board, KAIRana, AIR 1950 SC 163.
23
Kanubhai Brahmbhatt v. State of Gujarat, AIR 1987 SC 1159.
24
PN Kumar v. Municipal Corp of Delhi, (1988) 1 SCR 732.
25
Confederation of All Nagaland State Services Employees' Assn. v. State of Nagaland, (2006) 1 SCC 496.
26
Indira Sawhney v. Union of India, AIR 1993 SC 477.
purposes.27 The underlying object of Article 14 is to secure to all persons, citizens or non-
citizens, the equality of status and opportunity referred to in the Preamble to our
Constitution.28 The legislature is competent to exercise its discretion and make
classification.29 Differential treatment does not per se constitute violation of Article 14.30 Any
inequality in order to be unconstitutional must be actually and palpably unreasonable and
arbitrary.31
[¶9] A 5-judge bench of this Hon’ble Court in R. C. Poudyal v. Union of India32 has held that:
“Para 130. In State of M.P. v. Bhopal Sugar Industries Ltd.,33 this Court said: “The
Legislature has always the power to make special laws to attain particular objects and for that
purpose has authority to select or classify persons, objects or transactions upon which the law
is intended to operate. In this context, test of 'direct impact' in A.K. Gopalan v. State of
Madras,34 has been subsequently widened in Rustom Cavasjee Cooper v. Union of India,35
wherein the test of 'direct and inevitable consequence' was propounded. In several cases, this
Hon’ble Court has often invoked Chief Justice Patanjali Sastri’s words that Art. 14 of the
Constitution does not require that classification brought about by legislation be “scientifically
perfect or logically complete”. What was required in such cases, he wrote, was that
classification must be “based on an intelligible principle having a reasonable relation to
object which legislature seeks to attain.” 36 It is not obnoxious and is not open to charge of
denial of equal protection on the ground that it has no application to other persons. 37 To
reconcile Constitutional equality with facts of life, classification, gradation, or differentiation
is inevitable.38 It is humbly submitted that Art. 14 denies equal protection only when there is
no reasonable basis for differentiation.39

27
Ameeroonisa Begum v. Mehboob Begum, AIR 1953 SC 91.; Babulal Ahmtalal Mehta v. Collector of
Customs, Calcutta, AIR 1957 SC 877.; Gopi Chand v. Delhi Administration, AIR 1959 SC 609.; H.P. Gupta v.
Union of India, (2002) 10 SCC 658.
28
Natural Resources Allocations, Re special Reference Number 1 of 2012, (2012) 10 SCC 1.
29
Ankul Chandra Pradhan v. Union of India, (1997) 6 SCC 1.
30
DURGA DAS BASU, SHORTER CONSTITUTION OF INDIA 813 AR Lakshmanan, V.R. Manohar &
Bhagabati Prasad Banerjee ed.,14th Edition, Lexis Nexis, (2009).
31
Chiranjit Lal Chwodhury v. Union of India, AIR 1951 SC 41.
32
R. C. Poudyal v. Union of India, (1994) 1 Supp SCC 324.
33
State of M.P. v. Bhopal Sugar Industries Ltd., (1964) 6 SCR 846.
34
A.K. Gopalan v. State of Madras, AIR 1950 SC 27.
35
Rustom Cavasjee Cooper v. Union of India, (1970) 1 SCC 248.
36
Kedar Nath Bajoria v. State of West Bengal, AIR 1953 SC 404. See, e.g., Welfare Association v. Ranjit P.
Gohil, (2003) 9 SCC 358.; Dharam Dutt v. Union of India, (2004) 1 SCC 712.
37
State of Bombay v. F.N. Balsara AIR 1951 SC 318.
38
Champakam Dorairajan v. State of Madras, AIR 1951 Mad. 120.; T Devadasan v. Union of India, AIR 1964
SC 179.
39
Ameeroonisa Begum v. Mehboob Begum, AIR 1953 SC 91.; Babulal Ahmtalal Mehta v. Collector of
Customs, Calcutta, AIR 1957 SC 877.; Ashoka Smokeless Coal India (P.) Ltd v. UOI, (2007) 2 SCC 640.
 (i) There is an intelligible differentia in the classification
[¶10] Intelligible differentia encompasses within its scope whether classification is rational
and is capable of being understood40 and that basis of classification for judging validity of law
can be gathered from the surrounding circumstances. 41 Classification in such a case should be
based on an intelligible differentia, some real and substantial distinction, which distinguishes
persons or things grouped together in the class from others left out of it. 42 It has been held by
the apex Court that Equal treatment of unequal’s is not liable to be struck down as
discriminatory unless there is a simultaneous absence of a rational relation to object intended
to be achieved by law.43
(ii) There is a reasonable nexus to the object
[¶11] In Budhan Choudhry and Ors. vs. The State of Bihar44, it has been held by a 7-judge
bench of Hon’ble Court that Art. 14 prohibits class legislation but permits reasonable
classification.45 Classification must not be arbitrary but scientific, and rest upon real and
substantial distinction46 between those covered and those left out. 47 There would be a strong
presumption in favor of constitutionality of the Act will naturally arise. 48 The reasonableness
of the restrictions is tested on basis that they must not be arbitrary or of an excessive nature
so as to go beyond requirement of interest of general public.49
(B) Look-Out Notice is not Arbitrary and Unreasonable
[¶12] A Five Judge bench of Hon’ble Court in E.P. Royappa v. State of T.N.50 has explained
the term arbitrary as very simply the lack of any reasoning. No enactment can be struck down
by just saying that it is arbitrary or unreasonable.51 No action of State should be of arbitrary
and irrational nature which distinguishes among Individuals. 52 Bhagwati J in Bachchan Singh

40
K. R. Lakshman v. Karnataka Electricity Board, (2001) 1 SCC 442.; State of Kerela v. N.M. Thomas, (1976)
2 SCC 310.
41
Hanif Quareshi v. State of Bihar, AIR 1958 SC 731.
42
Laxmi Khandsari v. State of Uttar Pradesh, AIR 1981 SC 873.
43
Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd., (1996) 1 SCC 642.
44
Budhan Choudhry and Ors. v. The State of Bihar, AIR 1955 SC 191.; See also, Binoy Viswam v. Union of
India (UOI) and Ors., AIR 2017 SC 2967.; D.S. Nakara v. Union of India, (1983) 1 SCC 305.
45
Kumari Chitra Ghosh v. Union of India, (1969) 2 SCC 228.
46
Anuj Garg v. Hotel Association of India, (2008) 3 SCC 1.
47
Kartar Singh v. State of Punjab, (1994) 3 SCC 569.
48
Kavalappara Kottarathil Kochuni and Ors. v. State of Madras and Ors., AIR 1960 SC 1080.
49
M. R. F. Limited v. Inspector Kerala Govt. and Ors., (1998) 8 SCC 227.
50
E.P. Royappa v. State of T.N., (1974) 4 SCC 3.; See also, Sharma Transport v. Government of Andhra
Pradesh, (2002) 2 SCC 188.; Justice K.S. Puttaswamy and Ors. v. Union of India (UOI) and Ors. (2019) 1 SCC
1.
51
State of A.P. v. McDowell & Co., (1996) 3 SCC 709.; State of U.P. v. Kaushailiya and Ors., AIR 1964 SC
416.; State of A.P. v. McDowell & Co. (1996) 3 SCC 709.; Ashok Kumar Thakur v UOI (2008) 6 SCC 1.
52
Om Kumar v. Union of India, (2001) 2 SCC 386.
v State of Punjab53, A person cannot be deprived of his liberty by a law which is nebulous and
uncertain in its definition and application.54 An ordinary legislation cannot be challenged in a
Court of Law on the grounds of violation of basic structure.55
[¶13] The restriction imposed was not unreasonable as mere fact that some hardship or
injustice is caused to someone is no ground to strike down the rule as unconstitutional. 56 The
Hon’ble Supreme Court in case of Chabungam Ibohal Singh v. Union of India57 held that
“For deciding whether a particular decision was arbitrary or reasonable 58, existing
circumstances at time of taking decision had to be examined.” A case of arbitrariness is not
made out where two views are possible and view taken by government cannot be challenged
on ground that other view is a better one. 59 Further Supreme Court has observed recently in
K. Thimmappa v. Chairman, Central Board of Directors, 60 that mere differentiation does not
per se amount to discrimination and to attract operation of equal protection clause, it is
necessary to show that the selection is unreasonable or arbitrary. In Natural Resources
Allocation, in re61, Court had opportunity to further comment on the ‘doctrinal looseness’ of
arbitrariness test.
(i) It is not Discriminatory and disproportionate
[¶14] The courts have evolved the principle that if the law in question is based on rational
classification it is not regarded as discriminatory. 62 It has been held in the case of Deepak
Sibal v Punjab University63, that ‘[A] classification need not be made with “mathematical
precision”. It has also been held in the case of Pannalal Binjraj v Union of India64that, ‘[T]he
courts start with a presumption that the administration has not acted in a discriminatory
manner; they would not easily assume abuse of power when discretion is vested in high

53
Bachan Singh v. State of Punjab, AIR 1982 SC 1336.
54
A.K. Roy v. Union of India (1982) 1 SCC 271.
55
Kuldip Nayar v. Union of India, AIR 2006 SC 3127.
56
AP Cooperative Oil Seeds Federation Limited v. D Achyuta Rao (2007) 13 SCC 320.
57
Chabungam Ibohal Singh v. Union of India, (1995) 2 SCC 83.
58
State of Madras v. V.G. Row, AIR 1952 SC 196.
59
Onkar Lal Bajaj v. Union of India AIR 2003 SC 2562.; See also, State of Madhya Pradesh v. Mandavar, AIR
1955 SC 493.; Bar Council, Uttar Pradesh v. State of Uttar Pradesh, AIR 1973 SC 231.; Sant Lal Bharti v. State
of Punjab, AIR 1988 SC 485; State of Tamil Nadu v. Ananthi Ammal, AIR 1995 SC 2114.; Javed v. State of
Haryana, AIR 2003 SC 3057.
60
K. Thimmappa v. Chairman, Central Board of Directors, AIR 2001 SC 467.; Union of India v. M.V.
Valliappan, (1996) 6 SCC 259.
61
Natural Resources Allocation, In re Special Reference No. 1 of 2012, (2012) 10 SCC 1.
62
Ashutosh Gupta v. State of Rajasthan, (2002) 4 SCC 34.
63
Deepak Sibal v. Punjab University, AIR 1989 SC 903.; Dharam Dutt v. UOI, AIR 2004 SC 1295.
64
Pannalal Binjraj v. Union of India, AIR 1957 SC 397.
officials. Proportionality broadly requires that government action must be no more intrusive
than is necessary to meet an important public purpose.65
(C) It is in consonance with Article 19(1)(d)
[¶15] A law within the meaning of Article 19 of the Constitution would remain valid qua a
non-citizen.66 The reasonableness of the restraint would have to be judged by the magnitude
of the evil it seeks to restrain, curb or eliminate. 67 There cannot be any liberty absolute in
nature and uncontrolled in operation so as to confer a right wholly free from any restraint. 68
The Delhi High Court in Suman Sehgal v. Union of India,69 wherein it was held that passport
can be impounded. Govt. decision in the public interest would override the business interests
of an individual person.70
(i) Restriction under Article 19(5) is Reasonable
[¶16] It is submitted that Art. 19 of the Constitution is not absolute, 71 and reasonable
restrictions can be placed72 in interest of general public.73 In Art 19(5) it is important to note
the term "reasonable" because there is no definite test that has been laid down by the
constitution to determine reasonable restriction, This Court worth recalls and recollects the
decision in Rajinder Kaur and another v. Union of India and others, 74 wherein it is held as
follows: "A person can be denied the right to travel abroad if the authorities are satisfied that
all essential ingredients are satisfied.
[¶17] The Delhi High court judgement in the case of Vikram Sharma & Others v. Union of
India,75 and Sumer Singh Salkan v. Assistant Director & Others,76 clearly held that there is no
legal definition of an LOC. In N. Saravanapavan v. The Chief Immigration Officer,77 writ
petition by a foreigner was dismissed and it was held that he was subjected to questioning by
65
Coimbatore District Central Coop. Bank v. Employees Assn, (2007) 4 SCC 669.; Mardia Chemicals Ltd. v.
Union of India, (2004) 4 SCC 311, 354.; R v. Goldsmith, (1983) 1 WLR 151, 155.
66
The State of Gujarat and Ors. v. Shri Ambica Mills Ltd., Ahmedabad and Ors., (1974) 4 SCC 656.
67
Collector of Customs v. Sampathu Chettty, AIR 1963 SC 316.; Harakchand v. UOI, AIR 1970 SC 1453.;
Chintamani Rao v. State of M.P., AIR 1951 SC 118.
68
Ramlila Maidan Incident v. Home Secretary, (2012) SCC 1.
69
Suman Sehgal v. Union of India, AIR 2006 Del. 216.
70
State of Orissa v. Radheyshyam Meher, AIR 1995 SC 855.
71
Justice K. S. Puttuswamy and Ors. v. Union of India and Ors., (2017) 10 SCC 1.; Gujarat water supply v.
Unique electro (Gujarat) (P), AIR 1989 SC 973.
72
State of Kerala v. Peoples Union for Civil Liberties, (2014) CDJ 831 (SC).; Chintamanrao v. State of M.P.,
(1950) SCR 759.
73
Kharak Singh v. The State of U. P. & Others, AIR 1963 SC 1295.; Waman Rao v. Union of India, (1981) 2
SCC 362.; Court on its own motion v. Union of India, (2012) 12 SCC 307.; Sneha Mandal Co-Operative v.
Union of India, AIR 2000 121 Bom.; T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481.;
Virendra v. State of Punjab, AIR 1957 SC 869.; Ramji Lal Modi v. State of U.P, AIR 1957 SC 620.
74
Rajinder Kaur and another v. Union of India and others, AIR 2004 Punjab and Haryana 347.
75
Vikram Sharma & Others v Union of India, (2010) 12 SCC 210.
76
Sumer Singh Salkan v Assistant Director & Others, (2010) 2 DM 666.
77
N. Saravanapavan v. The Chief Immigration Officer, (2012) ZWSC 15.
the authorities due to LOC. It was further elaborated in E.V. Perumal Samy Reddy & Others
v State Represented by the Deputy Commissioner of Police,78 when the court observed that,
“Need may arise to apprehend persons, who have ability to fly, flee away the country. So,
L.O.C. orders are issued. It is a harmonious way out between a person’s fundamental right
and interest of the society/state.
(D) Right to Life enshrined under Art. 21 is not absolute and Look-Out Notice qualifies
test of substantive due process and procedure established by law
[¶18] No right in Part III of the Constitution is absolute, 79 and reasonable restrictions can be
placed.80 In Sunil Fulchand Shah v. UOI and Ors.81 the Hon'ble S.C observed "Personal
liberty is one of the most cherished freedoms, perhaps more important than the other
freedoms guaranteed under the Constitution. However, where individual liberty comes into
conflict with an interest of the security of the State or public order, then the liberty of the
individual must give way to the larger interest of the nation.
[¶19] Anyone can be deprived of his right to life and liberty by a procedure established by
law provided it is fair and reasonable.82 The Constitution is living organ,83 and so is law of
society.84 Human societies keep changing and their needs emerge. 85 The requirement is it
should not be arbitrary.86 As observed in Presidential Poll, In re87: "13. ... it is the animus
imponentis, intention of the law maker expressed in the law itself, taken as a whole." The
requirement of substantive due process read into Constitution through a combined reading of
Art. 14, 21 and 19 and as test required to be satisfied while judging constitutionality of a
statute or decision.88
(i) It is in consonance with Principle of Natural Justice and Fair & Proper Investigation

78
E.V. Perumal Samy Reddy & Others v. the Deputy Commissioner of Police, (2013) 8 SCC 282.
79
Justice K. S. Puttuswamy and Ors. v. UOI and Ors., (2017) 10 SCC 1.; Sarda v. Dharmpal, AIR 2003 SC
3450.
80
Kuttisankaran Nair v. State of Kerala, AIR 1965 Ker. 161.
81
Sunil Fulchand Shah v. UOI and Ors., (2000) 3 SCC 409.
82
Maneka Gandhi v. Union of India, AIR 1978 SC 597.; See also, Issac Isangha Musumba v. State of
Maharashtra, (2014) 15 SCC 357.; N.H.R.C. v. State of Arunachal Pradesh, AIR 1996 SC 1234.; A.K. Gopalan
v. State of Madras, AIR 1950 SC 27.; Mihir alias Bhikari Charan Sahu v. State, (2005) Cri LJ 488.; Delhi
Airtech Services Pvt. Ltd v. State of U.P., (2011) 9 SCC 354.; Government of India and Ors. v. Alka Subhash
Gadiya, (1992) 1 SCC 496.
83
Union of India v. Naveen Jindal, (2004) 2 SCC 510.
84
Sanjeev Kapoor v. Chandana Kapoor and Others, AIR 2020 SC 1064.
85
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.
86
Soma Chakravorthy v. C.B.I., (2007) 5 SCC 403, 411.
87
Presidential Poll, In re, (1974) 2 SCC 33.
88
Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1.
[¶20] In Ritesh Sinha v. State of UP89 SC clearly stated that if the substantial question of law
has already been dealt so, there is no violation of “Audi alteram partem”90 as the act was in
accordance with the “useless formality” theory hence, there was no violation of principle of
natural justice. The principles of natural justice are furthermore, not required to be complied
with, if it will lead to a mere empty formality.91
[¶21] As held in Vinay Tyagi v. Irshad Ali,92 what ultimately is aim of expression “fair and
proper investigation” in criminal jurisprudence? It has twin purpose, firstly, investigation
must be unbiased, honest, just and in accordance with law, secondly, the entire emphasis on a
fair investigation has to be to bring out truth of case before court of competent jurisdiction. In
S. Martin v. State,93 court held that law permits concerned authorities to resort to issuance of
LOC in respect of cognizable offences either under penal laws where he is allegedly
involved.
Hence, it is humbly submitted that the Look-Out Notice is in accordance with law and is in
consonance with Article 14, 19(1)(d) and 21.

3. WHETHER AN OFFICER EMPOWERED UNDER SECTION 42 AND SECTION 53 OF THE

NDPS ACT ARE POLICE OFFICERS AND THE INVESTIGATION UNDER SECTION 67 OF
NDPS ACT IS LATERAL TO CRIMINAL PROCEDURE CODE?

[¶22] It is humbly contended that an Officer empowered under Section 42 94 and 5395 of the
NDPS Act are not police officers and the investigation under NDPS Act is not simply
corollary to Criminal Procedure Code. The Petitioners to this extent would seek to establish
that, (A) The Officer designated under Section 53 and 42 of the NDPS Act are not as-similar
to Police officers, and (B) The antecedent stages of Investigation under Section 67 of the
NDPS Act are vis-à-vis only subject to limitation under Section 51 of the act itself.

(A) The Officer designated under Section 53 and 42 of the NDPS Act are not Police
officers in real sense

89
Ritesh Sinha v. State of UP, (2013) 2 SCC 357.
90
Delhi transport corporation v. DTC Mazdoor union, AIR 1991 SC 101.; Sukhdev Singh v. Bhagat Ram,
(1975) 3 SCR 619.; UP Warehouse Corporation v. Vinay Narayan, AIR 1980 SC 840.
91
KSRTC v. S.G. Kotturappa, (2005) 3 SCC 409.
92
Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762.
93
S. Martin v. State, (2017) 12 Mad. 225.
94
Narcotic Drugs and Psychotropic Substances Act 1985, § 42, Acts of Parliament, 1985 (India).
95
Narcotic Drugs and Psychotropic Substances Act 1985, § 53, Acts of Parliament, 1985 (India).
[¶23] It is humbly contended before the Hon’ble Court that NDPS Act is a special Act 96 and
sometimes overrides the Code of Criminal Procedure, 1973.97 According to section 41(2) and
section 42 of the NDPS Act refer to a First Information Report being lodged by the officers
referred to therein.98 As the source of information is required to be kept a secret under section
68 of the NDPS Act, the officer receiving information under these provisions is therefore
treated as an informant.99 The tasks assigned to officers under section 42 of the NDPS Act are
four in number, namely, entry, search, seizure or arrest.100
[¶24] Section 53 of the NDPS Act did not deem the officers named therein to be police
officers, they were only given certain powers of investigation, which did not ultimately lead
to filing of a charge-sheet under section 173 of the CrPC. 101 Complaint under section 36A(1)
(d) would refer only to the complaint under section 59(3) of the NDPS Act, and referred to
section 2(xxix) of the NDPS Act to refer to the definition of complaint under section 2(d) of
the CrPC, which is used in the same sense as in the CrPC. Several provisions in the NDPS
Act, where the word police or police officer is used in contrast to the other persons or officers
who are part of the narcotics and other setups in any case, section 53A makes an inroad into
section 25 of the Evidence Act.102 Equally, the majority judgment103 is per incuriam,
inasmuch as it does not consider several provisions of the CrPC, and therefore, arrives at the
wrong test to determine as to who can be said to be a police officer within the meaning of
section 25 of the Evidence Act. The officers mentioned in sections 41 and 42 of the NDPS
Act cannot be tarnished with the same brush as the regular police, as there is nothing to show
that these officers use third degree measures to extort confessions.104
[¶25] The powers of NDPS officers being restricted to prevention and detection of crimes
under the NDPS Act and no other crime, they do not have the kind of scope that police have,
to exert pressure to extract tailored statements.105 Officers under the NDPS Act, invested
under Section 53 with the powers of an Officer in Charge of a Police Station, for the purpose
of investigation of an offence under the NDPS Act, do not exercise all powers of police
officers. They do not have the power to file a police report under Section 173 CrPC which
96
Narcotics Control Bureau v. Kishan Lal and Ors. AIR 1991 SC 558.
97
Rashid Khan and Ors. v. The State, (1993) CriLJ 3776 (SC).
98
Union of India (UOI) and Ors. v. L.D. Balam Singh, (2002) 3 SCR 385.
99
R. Mayilvahanam and Ors. v. Intelligence Officer, Narcotic Control Bureau, (2008) CriLJ 4425 (SC).
100
Tofan Singh v. State of Tamil Nadu, (2013) 9 SCR 962.
101
Badku Joti Savant v. State of Mysore, AIR 1966 SC 1746.
102
State through Superintendent of Police, CBI/SIT vs. Nalini and Ors., (1999) 5 SCC 253.
103
State of U.P. and Ors. v. Raja Ram Jaiswal and Ors., AIR 1985 SC 1108.
104
Essa and Ors. v. The State of Maharashtra, through STF, CBI Mumbai and Ors., (2015) 7 SCJ 474.
105
Committee on Reforms of Criminal Justice System, Government of India, Ministry of Home Affairs Report
VOLUME I INDIA March 2003.
might be deemed a complaint. There is no provision in the NDPS Act which requires any
officer investigating an offence under the said Act or otherwise making an inquiry under the
said Act to file a report.106
(i) Power of Officers under Sec 67 of NDPS in respect to Sec 161 and 162 of the CrPC
[¶26] The language of section 67 of NDPS Act and the expression enquiry is nothing but an
investigation, and the expression examine is the same expression used in section 161 of the
CrPC,107 which therefore should be accorded evidentiary value, as no safeguards as provided
under section 162 of the CrPC are mentioned qua statements made under section 67 of NDPS
Act. NDPS Act read as a whole, it is a balanced statute which protected both investigation of
crime, as well as the citizen, in that several safeguards were contained therein.108
[¶27] Further, a confession recorded under section 67 of the NDPS Act, without more, would
be sufficient to convict a person accused of an offence under the Act. This could only be done
if section 24 of the Evidence Act was met, and the Court was satisfied that the confession so
recorded was both voluntary and truthful. In any case, the safeguards that have been pointed
out,109 have now largely been incorporated in Chapter V of the CrPC, which safeguards
would also operate qua confessions recorded under section 67 of NDPS Act. Moreover,
Section 67 on its plain language does not refer to information spoken of in section 42, as it
uses expression require any person to produce or deliver a document, as opposed to
information called for from such persons. The confessions, if properly recorded, are the best
form of evidence, as these are facts known to the accused, about which he then voluntarily
deposes. Section 190 of CrPC is not completely displaced by section 36A (1) (d) of NDPS
Act, in that the requirement of the filing of a complaint and/or a police report contained in
section 190 continues to apply.110
[¶28] Investigation begins from stage of collection of material under section 67 111 and so, the
reference order itself being flawed, there ought to have been no reference at all. 112 Section 67
of the NDPS Act is used to record confession of an accused, and will not apply but only
section 24 of the Evidence Act makes such confessions relevant. A statement recorded under
section 67 of NDPS Act cannot be assimilated to a statement under section 161 of CrPC.113

106
Sujit Tiwari v. State of Gujarat, AIR 2020 SC 667.
107
Bhag Chand and Ors. v. Narcotics Control Bureau, (2004) 2 ShimLC 157.
108
State (N.C.T. of Delhi) v. Navjot Sandhu and Ors, AIR 2005 SC 3820.
109
D.K. Basu v. Union of India, (1997) 1 SCC 416.
110
Raj Kumar Karwal and Ors. v. Union of India (UOI) and Ors., AIR 1991 SC 45.
111
Mukesh Singh v. State (Narcotic Branch of Delhi), (2020) 10 SCC 164.
112
Raj Kumar Karwal and Ors. v. Union of India (UOI) and Ors., AIR 1991 SC 45.; Kanhaiyalal v. Union of
India (UOI), AIR 2008 SC 1044.
113
Noor Aga v. State of Punjab and Ors., (2010) 96 AIC 176.
Interplay between CrPC and provisions of NDPS Act is contained in several provisions. It
will be noticed that CrPC has been expressly excluded when it comes to suspension,
remission or commutation in any sentence awarded under NDPS Act section 32A. NDPS Act
is a comprehensive legislation which makes provisions for exercising control over narcotic
drugs and psychotropic substances, at the heart of which is power vested in various officers to
investigate offences under the Act, so as to prevent and punish same against offenders being,
inter alia, organised gangs of smugglers who indulge in what is considered by Parliament to
be a menace to society.
[¶29] Principles of Section 163 of Cr.P.C. are implicit in provisions of NDPS Act relating to
inquiry and investigation though said Section may not apply to such inquiry or
investigation.114 Officers under NDPS Act not being police officer, Sec. 161 & 162 of CrPC
have no application to any statement made before any officer under NDPS Act, in course of
any inquiry or other proceedings under NDPS Act. Therefore, officer cannot be said to be a
police officer within Section 25 of the Evidence Act. The powers of a police officer are far
greater than those of an officer under NDPS Act invested with powers of Officer of a Police
Station for limited purpose of investigation of an offence under NDPS Act. 115 The extensive
powers of police, of investigation of all kinds of offences, powers to maintain law and order,
remove obstruction and even arrest without warrant on mere suspicion, give room to police
officers to harass a person accused or even suspected of committing an offence in a myriad of
ways.116 The police are in a dominating position to be able to elicit statements by
intimidation, or by coercion.
(B) The antecedent stages of Investigation under Section 67 of the NDPS Act are vis-à-
vis only subject to limitation under Section 51 of the act itself
[¶30] If provisions of CrPC were to apply to investigations under NDPS Act, it would not
have been necessary to invest officer under NDPS Act with powers of Officer in Charge of a
Police Station, for purpose of investigation of an offence under NDPS Act, by notification in
Official Gazette.117 Section 51 states that provisions of Criminal Procedure Code shall be
applicable as regards arrest, seizure and search as long as they are not inconsistent with
NDPS, section 52 requires arresting officer arrested person about all the grounds for such

114
Bhardwaj, P. et al., 2020. Officers under Section 53 of NDPS Act are "police officer" within Section 25 of
Evidence Act; Available at: https://www.scconline.com/blog/post/2020/10/29/officers-designated-under-
section-53-of-the-ndps-act-are-police-officer-within-the-meaning-of-section-25-of-the-evidence-act-sc-holds-in-
21-verdict-detailed-report/ (2021).
115
Vijai Kumar and Ors. v. State of U.P. and Ors., (2021) 116 ACC 222.
116
Tofan Singh v. The State of Tamil Nadu, (2013) 16 SCC 31.
117
Narayanaswamy Ravishankar v. Asstt. Director, Directorate of Revenue Intelligence, (2002) 8 SCC 7.
arrest.118 By virtue of Section 36C of the NDPS Act as well as by virtue of Section 51 of
NDPS Act, provisions contained in Section 451 or 457(1) of CrPC would be applicable as
none of provisions of NDPS Act are inconsistent with provisions of the CrPC and therefore in
a deserving case, the right to interim custody provided under Section 451 or the CrPC cannot
be denied.
(i) Offences under NDPS Act shall be triable by the Special Court under Section 36A
[¶31] In view of amended Act, 2001, under Section 36A, Special Courts are having
jurisdiction to try the case which are punishable with imprisonment for a term of more than
three years.119 It is essential to file complaint as per section 36A of NDPS Act but in instant
case, prosecution has failed to file any complaint, hence, Prosecution story becomes illegal
and ultra vires. There can be no doubt that mandatory provisions of NDPS Act to ensure fair
trial of the accused must be enforced. 120 However, over-emphasis on principles of natural
justice in drug trafficking cases can be a major hindrance to the apprehension of offenders. In
offences under NDPS Act, substantial compliance should be treated as sufficient for the
procedural requirements, because such offences adversely affect the entire society. The lives
of thousands of persons get ruined.
Hence, it must be declared that an officer empowered under Section 42 and Section 53 of the
NDPS Act are not Police Officers and the investigation under Section 67 of NDPS Act is not
completely lateral to Criminal Procedure Code.

4. WHETHER THE CONFESSIONS RECORDED UNDER SECTION 67 OF NDPS ACT ARE

HIT BY SECTION 25 OF THE EVIDENCE ACT AND IS CAPABLE OF BEING USED AS

SUBSTANTIVE EVIDENCE TO CONVICT AN ACCUSED ?

[¶32] It is most humbly submitted before the Hon’ble Court that the Confessions recorded
under Section 67 of the NDPS Act are not hit by Section 25 of the Evidence Act and are
considered truly admissible evidence in the eye of law. The Respondents to this extent would
seek to establish that (A) The statement recorded by NDPS officers considers to be
admissible evidence as under Section 25 of the Evidence Act and can be treated to
Substantial evidence for conviction, (B) The statements recorded under section 67 of the
NDPS Act, would not amount to statements under section 161 of the CrPC

118
State of Punjab v. Baldev Singh and Ors, AIR 1999 SC 2378.
119
Mohd. Ayub v. Union of India, (2002) 84 ECC 774.
120
Tofan Singh v. The State of Tamil Nadu, (2013) 16 SCC 31.
 (A) Statements recorded by NDPS officers are admissible evidence under Section 25 of
the Evidence Act and can be treated to Substantial evidence for conviction
[¶33] Officers designated under Section 53 of NDPS Act are officer within the meaning of
section 25 of Evidence Act. Section 25 is to be viewed not simply in contrast of any
confession made to a police officer. For present purpose, on the footing that the statements of
accused were recorded under and in terms of Section 67 of the NDPS Act and relying upon
the earlier Judgments in Kanhaiyalal v. UOI,121 as under: “45. Considering provisions of
Section 67 of NDPS Act and views expressed by Court in Raj Kumar Karwal case 122 with
which we agree, that an officer vested with powers of an officer in charge of a police station
under Section 53 of above Act is not a “police officer” within the meaning of Section 25 of
Evidence Act, it is clear that a statement made under Section 67 of NDPS Act is not the same
as a statement made under Section 161 of Code, unless made under coercion. It is this vital
difference, which allows a statement made under Section 67 of the NDPS Act to be used as a
confession against the person making it and excludes it from the operation of Sections 24 to
27 of the Evidence Act.”
[¶34] Further, in Tofan Singh v. State of Tamil Nadu 123 the court was of the view that the
matter required reconsideration and therefore, it was observed as under, in our view the
aforesaid discussion necessitates a re-look into the ratio that it is more so when this Court has
already doubted the dicta in Nirmal Singh Pehlwan 124 wherein after noticing both
Kanhaiyalal125 as well as Noor Aga,126 this Court observed thus: “15. We also see that the
Division Bench in Kanhaiyalal case had not examined the principles and the concepts
underlying Section 25 of Evidence Act, 1872 vis-à-vis Section 108 of Customs Act and the
powers of a Customs Officer who could investigate and bring for trial an accused in a
narcotic matter. The said case relied exclusively on judgment in Raj Kumar case. The latest
judgment in point of time is Noor Aga case which has dealt very elaborately with this matter.
We thus feel it would be proper for us to follow ratio of the judgment in Noor Aga case
particularly as the provisions of Section 50 of the Act which are mandatory have also not
been complied with.”

121
Kanhaiyalal v. Union of India, (2008) 4 SCC 668.
122
Raj Kumar Karwal v. Union of India, (1990) 2 SCC 409.
123
Tofan Singh v. State of Tamil Nadu, (2013) 16 SCC 31
124
Nirmal Singh Pehlwan @ Nimma v. Inspector, Customs, Customs House, Punjab, (2011) 12 SCC 298.
125
Kanhaiyalal v. Union of India, (2008) 4 SCC 668.
126
Noor Aga v. State of Punjab and Ors., (2010) 96 AIC 176.
[¶35] In Mohammed Fasrin v. State rep. by the Intelligence Officer,127 Confession, even if it
is admissible, Court has to satisfied that it is a voluntary statement, free from any pressure
and also that accused was apprised of his rights before recording the confession. It is also
well settled that a confession, especially a confession recorded when accused is in custody, is
a weak piece of evidence and there must be some corroborative evidence. The confession of
the co-accused, which was said to be a corroborative piece of evidence, has been discussed
above and is of no material value. NDPS Act therefore incorporates a legislative balance
between powers of investigation and obligation to uphold privacy rights of individual. The
information under section 67 of NDPS Act can be equated with evidence, which is only
evidence before a court.128
(B) The statements recorded under section 67 of the NDPS Act, would not amount to
statements under section 161 of the CrPC
[¶36] The issue whether statement recorded under Section 67 of NDPS Act can be construed
as a confessional statement even if officer who recorded such statement was not to be treated
as a police officer. Your Lordship, even if we are to proceed on the premise that such
statement under Section 67 of NDPS Act may amount to confession, certain additional
features must be established before such a confessional statement could be relied upon
against a co-accused. Unlike Section 15 of Terrorist and Disruptive Activities Act, 1987 129
which specifically makes confession of a co-accused admissible against other accused in
certain eventualities; there is no such similar or identical provision in NDPS Act making such
confession admissible against a co-accused. The matter therefore has to be seen in the light of
law laid down by this Court as regards general application of a confession of a co-accused as
against other accused. Further, in Kashmira Singh v. State of Madhya Pradesh,130 this Court
relied upon decision of the Privy Council in Bhuboni Sahu v. The King131 and laid down as
under: It does not indeed come within definition of evidence contained in section 3 of
Evidence Act., it is not required to be given on oath, nor in presence of accused, and it
cannot be tested by cross examination. Their Lordships also point out that it is obviously
evidence of a very weak type…...... It is a much weaker type of evidence than the evidence of
an approver, which is not subject to any of those infirmities.

127
Mohammed Fasrin v. State rep. by the Intelligence Officer, (2019) 8 SCC 811.
128
Sujit Tiwari v. State of Gujarat, AIR 2020 SC 667.
129
Maharashtra Control of Organised Crime Act, 1999, § 18, Act of Maharashtra Legislature, 1999 (India).
130
Kashmira Singh v. State of Madhya Pradesh, (1952) SCR 526.
131
Bhuboni Sahu v. The King, (1949) 76 Indian Appeal 147 at 155.
[¶37] Such a confession cannot be made tile foundation of a conviction and can only be used
in support of other evidence. The law so laid down has always been followed by this Court
except in cases where there is a specific provision in law making such confession of a co-
accused admissible against another accused.132 In present case it is accepted that apart from
the aforesaid statements of co-accused there is no material suggesting involvement of
appellant in crime in question.133 We are left with only one piece of material that is
confessional statements of co-accused. On touchstone of law laid down by this Court such
confessional statement of a co-accused cannot by itself be taken as a substantive piece of
evidence against another co-accused and can at best be used or utilized in order to lend
assurance to Court.134 In absence of any substantive evidence, it would be inappropriate to
base conviction of appellant purely on statements of co-accused. Appellant is entitled to be
acquitted of charges levelled against him. Therefore, accept this appeal, set aside orders of
conviction and sentence and acquit appellant.
[¶38] The NDPS Act, being a special statute, and in any case a later Central Act, the
provisions of the NDPS Act would prevail, in case of any inconsistency between the NDPS
Act and the Evidence Act.135 The Evidence Act would however apply to a trial under the
NDPS Act in other respects, unless a contrary intention appears from any specific provision
of the NDPS Act.136 The previous statement of a witness, even if admissible in evidence
cannot be used against the witness unless the witness is confronted with the previous
statement and given an opportunity to explain. Further, Section 173 of the CrPC is not
applicable to the NDPS Act as it is not expressly provided so. Consequently, the officer under
section 53 of the NDPS Act cannot be deemed to have all powers of a police officer to
inquire and investigate, except as provided under section 50(5) and 51.137
Hence, it must be declared that the Confessions recorded under Section 67 of the NDPS Act
are not completely hit by Section 25 of the Evidence Act and are considered admissible
evidence in the eye of law.

132
State v. Nalini, (1999) 5 SCC 253, 704.
133
Moot Proposition
134
Surinder Kumar Khanna v. Intelligence Officer Directorate of Revenue Intelligence, AIR 2018 SC 3574.
135
Jagadish Bhuyan v. State of Assam and Ors., (1992) 3 Crimes 570 (Gau.).
136
State of Punjab v. Jasbir singh and Ors., (1996) 54 ECC 79.
137
Bhavin Impex Pvt. Ltd. v. State of Gujarat, (2010) 260 ELT 526 (Guj.).