UIC-54

1ST GOPALJI MEHROTRA NATIONAL MOOT COURT

COMPETITION 2023

Before

IN THE HIGH COURT OF JUDICATURE AT JAIPURIA

WRIT PETITION NO. _____ /2023

UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA

IN THE MATTER OF

VATSAL TRIPATHI ….. PETITIONER

V.

STATE OF JAIPURIA ….. RESPONDENT

MEMORIAL SUBMITTED ON BEHALF OF PETITIONERS

 TABLE OF CONTENTS

TABLE OF ABBREVIATIONS..............................................................................................2

INDEX OF AUTHORITIES...................................................................................................3

STATMENT OF JURISDICTION.........................................................................................5

STATEMENT OF FACTS.......................................................................................................6

ISSUES RAISED......................................................................................................................8

SUMMARY OF ARGUMENTS..............................................................................................9

ARGUMENTS ADVANCED.................................................................................................10

ISSUE I –WHETHER THE WRIT PETITION UNDER ARTICLE 226 OF

CONSTITUTION OF INDONIA MAINTAINABLE IN HIGH COURT OF JAIPURIA? 10

A. Territorial Jurisdiction of High Court........................................................................10

B. Grounds upon which merely relief under Art. 226 should not be denied –...............11

C. FIR notfiled................................................................................................................11

ISSUE II – WHETHER PROCEDURE ESTABLISHED BY LAW FOLLOWED UNDER

S.50 OF NDPS ACTFOLLOWED?.....................................................................................13

A. Object of the act in relation to s.50............................................................................13

B. Omissions made by NDCA officials.........................................................................13

ISSUE III – WHETHER THE ACCUSED WAS PRODUCED BEFORE MAGISTRATE

WITHIN 24 HOUR OF ARREST?......................................................................................15

A. The arrested person was not produced before a magistrate within 24 hours.............15

B. Violation of fundamental right under article 21.......................................................17

ISSUE IV – WHETHER HIGH COURT OF JAIPURIA HAS THE POWER TO

ADJUDICATE UPON THE ACTS OF PRESCRIPTION OF DRUGS FOR MEDCINAL
PURPOSE BY DR. VATSAL?.............................................................................................18

A. Dr. Vatsal having drug license...................................................................................18

B. Maintenance of records and furnishing of information.............................................18

PRAYER.................................................................................................................................20

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MEMORIAL ON BEHALF OF PETITIONER
 TABLE OF ABBREVIATIONS

ABBREVIATIONS EXPANDED FORM

§ SECTION
AIR ALL VINDIA REPORTER

AP ANDHRA PRADESH

Art. ARTICLE

COI CONSTITUTION OF INDONIA

Cr.P.C. CODE OF CRIMINAL PROCEDURE,1973

Cri.L.J. CRIMINAL LAW JOURNAL

D&C DRUGS AND COSMETIC ACT 1945

Ed. EDITION

GOI GOVERNMENT OF INDIA

Hon’ble HONOURABLE

Ibid Ibidium

LR LAW REPORTER

MHA MINISTRY OF HOME AFFAIRS

NDCA NARCOTIC DRUG CONTROL AGENCY

NARCOTICS DRUGS AND PSYCHOTROPHIC

NDPS
SUBSTANCES

No. NUMBER
RMP REGISTERED MEDICAL PRACTITIONER

SC SUPREME COURT

SCC SUPREME COURT CASES

SUPPL. SUPPLEMENTARY

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MEMORIAL ON BEHALF OF PETITIONER
 INDEX OF AUTHORITIES

STATUTES

1. The Code of Criminal Procedure, 1973.

2. The Constitution of India.
3. The Drugs and Cosmetics act 1945.
4. The Indian Evidence act 1872.
5. The Narcotic drug and Psychotropic Substances act 1985.

BOOKS REFERRED

1. Andrew Ashworth, Principles of Criminal Law,(2nd ed.,1991).

2. D.D.Basu, Constitutional law of India ,(8th ed.,2011).
3. D.D.Basu, Indian Constitutional Law,(4th ed., 2015).
4. D.D.Basu, Introduction to The Constitution of India, (24th ed., 2020).
5. H.K. Bharati, Digest on NDPS Act 1985,(4th ed., 2022)
6. H.M. Seervai, Constitutional law of India,(4th ed., 2014)Vol.2.
7. R.V. Kelkar, Criminal Procedure,(7th ed., 2021).
8. Ratanlal & Dhirajlal, The Code of Criminal Procedure,(20th ed., 2016).

RULES

1. The Drugs and Cosmetic Rules 1945.

2. The Narcotic Drugs and Psychotropic Substances Rules 1985.

MISCELLANEOUS

1. Drug Law Enforcement , Field Officer’s Handbook ( Narcotics Control Bureau, MHA
GOI).
2. NDPS Procedural aspect’s Booklet for investigation officers (IOs), M.R.S. Punjab
Police academy , Phillaur.

CASES REFERRED

Beckodan Abdul Rahiman v. State of Kerala (2002), 4 SCC 229.

Cf. Jagat v. U.P.S.R.T.C.AIR 1977 All 93.
Chiranjit Lal v. Union of India (1950)SCR 869;

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MEMORIAL ON BEHALF OF PETITIONER
D.K. Basu Vs State of West Bengal (1997) SCC 416:
DG & IG of Police v. Prem Sagar (1999)5 SCC 700 : 1999 SCC (Cri) 1036.
Election Commission v. Saka Venkata (1953)SCR 1144
Gowri Shankar v. State of Bihar AIR 1972 SC 711: (1972) 1 SCC 564;
Himmatlal v. State of M.P. (1964)SCR 1122.
K. Paliniyappan v. State of A.P. 1999 CrLJ 3616
Kamadev Naik v. State of Orissa 1994 (3) Crimes 248 (Ori).
M. Sambasiva Rao v. Union of India AIR 1973 SC 850: 1973 CrLJ 663.
Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre (1988)1 SCC
692
Manu Sharma v State (2010), 6 SCC 1
Nilabati v State, AIR 1993 SC 1960:
Nirmal Singh v State (2009), SCC 441 (para 28).
Noor Jahan v. State of Karnataka 1993 CrLJ 102 : ILR 1991 Kar 4081.
P.C. Kakar v. Director General of Police 1986(1) Crimes 620 625 (AP)
Raj Narain Supdt. Central Jail New Delhi AIR 1971 SC 178:
Rajani Kanta Meheta v. State of Orissa 1975 CrLJ 83 (Ori): 40 (1974) CLT 922.
Ramabhadriah v. Secy. AIR 1981 SC 1653
Rashid v. 1.T.I. Commr. (1954) SCR 738.
Sandip Kumar Dey v. Officer-in-charge Sakchi P.S.AIR 1974 SC 871:
Seethalakshi v. State of T.N 1991 CrLJ 1037
Shiva Nath Prasad v. State of W.B. (2006) 2 SCC 757: 2006 Cri LJ 1258
State of Mysore v. Chandrasekhar AIR 1965 SC
State of Punjab v.Baldev Singh (1999), 6 SCC 172
State of Rajasthan v. Jag Raj Singh 2016 SCC OnLine SC 619.
State of W.B. v. Swapan Kumar Guha (1982)1 SCC 561;
State of West Bengal v Committee for Protection of Democratic Rights (2010), 3
SCC 571
Tamil Nadu Mercantile Bank Assn. v S.C. Sekar (2009), 2 SCC 784

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MEMORIAL ON BEHALF OF PETITIONER
 STATMENT OF JURISDICTION

The petitioner humbly submits that the Hon’ble High court of Jaipuria has the jurisdiction to
entertain this current writ petition u/a 226 of Constitution of India.1

1
226. Power of High Courts to issue certain writs
(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in
relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any
Government, within those territories directions, orders, or writs, including writs in the nature of habeas corpus,
mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights
conferred by Part III and for any other purpose.

(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person
may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the
cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such
Government or authority or the residence of such person is not within those territories

(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other
manner, is made on, or in any proceedings relating to, a petition under clause (1), without

(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim
order; and

(b) giving such party an opportunity of being heard, making an application to the High Court for the vacation of
such order, and furnishing a copy of such application to the party in whose favour such order has been made or
the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the
date on which it is received or from the date on which the copy of such application is so furnished, whichever is
later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterward
on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the
expiry of that period, or, as the case may be, the expiry of the aid next day, stand vacated

(4 The power conferred on a High Court by this Article shall not be in derogation of the power conferred on the
Supreme Court by clause (2) of Article 32.

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MEMORIAL ON BEHALF OF PETITIONER
 STATEMENT OF FACTS

1. Dr.Vatsal Tripathi is a law-abiding citizen of Republic of Indonia and he is working as

a senior psychiatrist at the Youngsters Medicare Hospital in city of Jaipuria. He was
recently elected as the President of Indonia Psychiatrist Association and was bestowed
with the Lifetime Achievement Award for his dedicated practice and service towards
the citizens of the country.

2. Apart from working at the hospital, during the weekends he looks after patients at his
clinic in his house. His wife (Ms.Gunjan Tripathi) assists him in managing the clients
at the Clinic and taking care of the bills, accounts and registers of the medicines at the
clinic.

3. Having a full-fledged knowledge of the composition of medicines to be prescribed by

a psychiatrist, Vatsal established a drug manufacturing company which had all the
sanctions and certificates that are required to operate and supply medicines to the
entire city of Jaipuria.

4. Under the Drug addiction rehabilitation scheme started by government of Indonia,

doctors were allowed to prescribe drugs in smaller doses to patients who are drug
addicts and one such drug is Xenophyl. The drug was directed to be used for
medicinal purposes only but was also allowed to be prescribed to the patients in small
doses.

5. In August 2022, Dr.Vatsal recommended a small quantity of Xenophyl to Mr. Anirudh

Singhania as part of the rehabilitation process and he became a permanent patient to
visit Vatsal in his clinic and used to get Xenophyl to combat his drug addiction habit.

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MEMORIAL ON BEHALF OF PETITIONER
6. On 12th December, 2023 Mr. Umang Chatterjee of the investigation wing of National
Drug Control Agency (NDCA) of Indonia reached Vatsal’s clinic claiming the fact
that he is indulged in manufacturing, packaging, distribution and sale of prohibited
drugs in Indonia.

7. Upon further investigation, it was revealed that Anirudh used to sell the drugs given
by Vatsal to the school children in city of Panchal. Accordingly, Vatsal was arrested
and taken to the Panchal office of the NDCA for investigating purposes. During the
investigation there were some entries which was missing from Dr.Vatsal’s register
regarding prescription of drugs.

8. Whenever Dr.Vatsal approached the authorities to consult a lawyer, he was told that
the authority did not want an honest citizen and a well renowned doctor to be put in
jail and hence, no chargesheet was filed by the authorities since the arrest.

9. Further, it was stated that if he continues to demand the services of a lawyer, the
authority would be in compulsion to formulate a chargesheet accusing him of the
offences under the NDPA. In pursuant to the questioning or interogation, Vatsal was
held in custody for more than 7 days without a chargesheet being filed.

10. When the authorities were approached by the family members about illegal detention
of Vatsal, the authority stated that NDPA empowered the NDCA and its officers to
detain any person suspected of indulging in illicit practices of manufacturing,
production, supply, packaging and distribution of prohibited drugs in the country for a
period of 90 days.

11. Aggrieved by this, a writ was filed before the High Court of Jaipuria seeking relief

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MEMORIAL ON BEHALF OF PETITIONER
 ISSUES RAISED

ISSUE I – WHETHER THE WRIT PETITION UNDER ARTICLE 226 OF

CONSTITUTION OF INDONIA MAINTAINABLE IN HIGH COURT OF JAIPURIA?

ISSUE II – WHETHER PROCEDURE ESTABLISHED BY LAW FOLLOWED UNDER

S.50 OF NDPS ACT FOLLOWED?

ISSUE III – WHETHER THE ACCUSED WAS PRODUCED BEFORE MAGISRATE

WITHIN 24 HOUR OF ARREST?

ISSUE IV – WHETHER HIGH COURT OF JAIPURIA HAS THE POWER TO

ADJUDICATE UPON THE ACTS OF PRESCRIPTION OF DRUGS FOR MEDCINAL
PURPOSE BY DR.VATSAL?

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MEMORIAL ON BEHALF OF PETITIONER
 SUMMARY OF ARGUMENTS

ISSUE I – WHETHER THE WRIT PETITION UNDER ARTICLE 226 OF

CONSTITUTION OF INDONIA MAINTAINABLE IN HIGH COURT OF JAIPURIA?

Yes, the writ petition is maintainable because there is breach of fundamental rights of
Dr.Vatsal because he was denied right to consult with his lawyer during his arrest and
procedure established by law was not followed during the arrest in NDPS Act 1985.

ISSUE II – WHETHER PROCEDURE ESTABLISHED BY LAW FOLLOWED

UNDER S.50 OF NDPS ACT FOLLOWED?

No, the procedure established by law was not followed during the arrest because Dr.Vatsal
was not informed about the personal search which can be held before Magistrate or Gazetted
officer. The legislative mandate was not followed therefore the detention was illegal and he is
bound to be released.

ISSUE III – WHETHER THE ACCUSED WAS PRODUCED BEFORE MAGISRATE

WITHIN 24 HOUR OF ARREST?

No, the accused was not produced before the magistrate within 24 hours of arrest and the
procedure under S.167(2) Cr.P.C. and S.36A of NDPS was not followed. Therefore the
custody of Dr.Vatsal under NDCA officials were illegal and unauthorised.

ISSUE IV – WHETHER HIGH COURT OF JAIPURIA HAS THE POWER TO

ADJUDICATE UPON THE ACTS OF PRESCRIPTION OF DRUGS FOR
MEDCINAL PURPOSE BY DR.VATSAL?

Yes, The High Court of Jaipuria has the power to adjudicate because Dr. Vatsal was
registered medicinal practitioner under the state government and he was following the laws
for prescription of narcotic drugs of central government in consonance with rules made by
state government of Jaipuria.

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MEMORIAL ON BEHALF OF PETITIONER
 ARGUMENTS ADVANCED

ISSUE I –WHETHER THE WRIT PETITION UNDER ARTICLE 226 OF

CONSTITUTION OF INDONIA MAINTAINABLE IN HIGH COURT OF JAIPURIA?

The petitioner has filled writ of Habeas Corpus under Art. 226 of COI.

A. Territorial Jurisdiction of High Court

1. Prior to the insertion of CI. (IA), by the 15th Amendment in 1963, it was held that the
writs do not run beyond the territories in relation to which each High Court exercises
jurisdiction.2Hence, a High Court could not issue a writ or order under Art. 226 unless
the person, authority or Government against whom the writ is sought was (physically)
resident or located within the territorial jurisdiction of the High Court.3

2. After the amendment, if the cause of action arises, wholly or in part within the
territorial jurisdiction of that High Court, it may issue a writ against a person or
authority resident within the jurisdiction of another High Court.

3. As a result of the amendment, a petition under Art. 226 can be presented before any of
the High Courts coming under the following heads:

 The High Court within whose territorial jurisdiction the person or authority against
whom relief is sought resides or is situate.4

 The High Court within whose jurisdiction the cause of action in respect of which
relief is sought under Art. 226 has arisen, wholly or in part.5

B. Grounds upon which merely relief under Art. 226 should not be denied –

2
Rashid v. 1.T.I. Commr., (1954) SCR 738.
3
Election Commission v. Saka Venkata, (1953) SCR 1144
4
ibid.
5
Cf. Jagat v. U.P.S.R.T.C., AIR 1977 All 93.

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MEMORIAL ON BEHALF OF PETITIONER
 4. In general, relief under Art. 226 should not be refused purely on technical grounds.6

5. The court can take note of changed circumstances and mould the relief accordingly 7or
grant a lesser relief when a larger relief sought for by the Petitioner cannot be granted. 8

6. Where there has been infringement of fundamental rights, an application under Art.
226 should not be thrown out simply on the ground that the proper writ has not been
prayed for.9The petitioner is, in such cases, entitled to a suitable order for the
protection of his fundamental right, or enforcement of the legal duty of the
respondent.10

7. To secure the ends of justice'. Whenever the High Court is satisfied that it is necessary,
in order to secure the ends of justice, that it should interfere under its inherent powers
under S.482 it ought to do so. When a clear mandatory provision of law is overlooked,
the High Court has power to correct an obvious error. 11 S.482 Cr.P.C. does not in any
way bar the invocation of Art. 226 of the Constitution of India.12

C. FIR notfiled

8. If, however, the materials do not disclose an offence, an investigation cannot be

permitted, as any investigation, in the absence of any offence being disclosed will
result in unnecessary harassment to a party whose liberty and property may be put in
jeopardy for nothing. In such a case the High Court in the exercise of its powers under
Article 226 of the Constitution (or under S. 482 of the Code) may stop and quash the
investigation proceedings.13

6
Ramabhadriah v. Secy., AIR 1981 SC 1653
7
ibid
8
ibid
9
Chiranjit Lal v. Union of India, (1950) SCR 869; State of Mysore v. Chandrasekhar, AIR 1965 SC
10
Himmatlal v. State of M.P., (1964) SCR 1122.
11
Kamadev Naik v. State of Orissa, 1994 (3) Crimes 248 (Ori).
12
Seethalakshi v. State of T.N, 1991 CrLJ 1037, 1050 (Mad).
13
State of W.B. v. Swapan Kumar Guha, (1982) 1 SCC 561: 1982 SCC (Cri) 283; Madhavrao Jiwajirao Scindia
v. Sambhajirao Chandrojirao Angre, (1988) 1 SCC 692: 1988 SCC (Cri) 234 ; Shiva Nath Prasad v. State of
W.B., (2006) 2 SCC 757: 2006 Cri LJ 1258

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MEMORIAL ON BEHALF OF PETITIONER
 9. The right of personal liberty is a basic human right recognised by the General
Assembly of the United Nations in its Universal Declaration of Human Rights. This
has also been prominently included in the Convention on Civil and Political Rights to
which Indonia is a party. Our Constitution recognises it as a fundamental right.

10. In Tamil Nadu Mercantile Bank Assn. v S.C. Sekar14it was held, an aggrieved
person cannot be left without a remedy. Access to justice is a human right. In certain
situations, it may also be considered to be a fundamental right. The Latin maxim “ubi
jus ibi remedium” is attracted in this case, as even an arrested person has his rights, and
so the counsel for thepetitioners humbly submits that the court adjudicates upon this
matter to remedy the petitioner.

11. The Supreme Court deprecates illegal detention and has awarded a compensation of
20,000 for the illegal detention of a person by the police in DG & IG of Police v.
Prem Sagar15

14
(2009) 2 SCC 784
15
DG & IG of Police v. Prem Sagar, (1999) 5 SCC 700 : 1999 SCC (Cri) 1036.

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MEMORIAL ON BEHALF OF PETITIONER
ISSUE II – WHETHER PROCEDURE ESTABLISHED BY LAW FOLLOWED
UNDER S.50 OF NDPS ACTFOLLOWED?

A. Object of the act in relation to s.50

1. The object of NDPS Act is to make stringent provisions for control and regulation of
operations relating to those drugs and substances. At the same time, to avoid harm to
the innocent persons and to avoid abuse of the provisions by the officers, certain
safeguards are provided which in the context have to be observed strictly.16

2. The Constitution Bench in State of Punjab v.Baldev Singh17, while dealing with the
scope of Section 50 of NDPS Act had emphasized upon the aspect of availability of
right of an accused to have ‘personal search’ conducted before a Gazetted Officer or a
Magistrate and regarded this right as ‘sacrosanct and indefeasible.

3. The apex court in the case of Beckodan Abdul Rahiman v. State of Kerala 18clearly
spelled the purpose behind the section 50 of NDPS Act. It observed that “the
safeguards mentioned in Section 50 are intended to serve a dual purpose to protect the
person against false accusation and frivolous charges as also to lend credibility to the
search and seizure conducted by the empowered officer.” Therefore, in light of above
section 50 should be interpreted liberally.

B. Omissions made by NDCA officials

4. The officer of NDCA has not informed the suspect of his legal right to be searched in
the presence of a Gazetted Officer or a Magistrate. This should be informed in writing
in the form of a notice under Section 50 of the NDPS Act. If the person opts to be
searched before a Magistrate or a Gazetted Officer, then he must be produced before
such authority who will then decide whether he should be searched or otherwise. This
is a statutory procedural requirement prescribed under Sec 50 (2) of the NDPS Act, the
compliance of which is mandatory.

16
State of Rajasthan v. Jag Raj Singh, 2016 SCC OnLine SC 619.
17
(1999) 6 SCC 172
18
(2002) 4 SCC 229.

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MEMORIAL ON BEHALF OF PETITIONER
 5. The officer of NDCA has not prepared any written Arrest Memo stating the grounds of
his arrest, date and time of arrest and had not informed the arrestee of the grounds of
his arrest and has not complied with the guidelines set forth by the Supreme Court of
India in the case of D.K. Basu Vs State of West Bengal.19“The officer carrying out the
arrest must prepare a memo at the time of arrest which should be signed by at least one
witness who will either be a family member of the arrestee or a respectable citizen of
the locality. The arrestee has to countersign the memo which must contain the date and
time of his arrest”.

6. In State of Rajasthan v/s Parmanand and another 2014(2) RCR (Cr.) 40 (SC)
held:Each accused must be individually informed that he has a legal right to be
searched before a nearest gazetted officer or before a nearest Magistrate- A joint
communication of the right available under section 50(1) of the NDPS Act to the
accused would frustrate the very purport of section 50- Right has not been properly
communicated- conviction and sentence set aside.

7. In a recent judgement of 2018, Hon’ble Supreme Court in Arif Khan @Agha Khan
v/s State of Uttrakhand Criminal Appeal No. 273 of 2007 acquitted the accused on
following grounds:-

 The Appellant was not produced before any Magistrate or Gazetted Officer and the
search and recovery of the contraband “Charas” was not made from the appellant
in the presence of any Magistrate or Gazetted Officer.

 None of the police officials of the raiding party, who recovered the contraband
“Charas” from him, was the Gazetted Officer and they were not empowered to
make search and recovery from the appellant.

 In order to make the search and recovery from the suspect, it has to be in
conformity with the requirements of section 50 of NDPS Act. It is, therefore,
mandatory for the prosecution to prove that the search and recovery was made
from the petitioner in the presence of a Magistrate or a Gazetted Officer.

19
(1997) 1 SCC 416: 1997 SCC (Cri) 92

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MEMORIAL ON BEHALF OF PETITIONER
ISSUE III – WHETHER THE ACCUSED WAS PRODUCED BEFORE
MAGISTRATE WITHIN 24 HOUR OF ARREST?

A. The arrested person was not produced before a magistrate within 24 hours.

1. Where the accused is detained without remand order, he has to be set at liberty. 20 A
remand order cannot be passed without production of accused.21 The requirement of
producing the accused before the Magistrate is not only a requirement when the first
remand is given, but each time when the Magistrate remands a person to custody the
person must be before him. The purpose behind the requirement is that, once a
Magistrate decides to remand the accused or extend the remand, he will have an
opportunity of opposing such an order.22

2. That Article 22 (2) of the Constitution of India and §56 and §57 Cr.P.C. require that
person arrested or detained in custody should be produced before the nearest
Magistrate within 24 hours of such arrest excluding the time necessary for the journey
from the place of arrest to the court of the Magistrate. No such person should be
detained beyond such period without the authority of the Magistrate.

3. Sec. 167, Cr.P.C. is supplementary to S.57 Cr.P.C. , which provides that a person
arrested without a warrant, in the absence of a special order of the Magistrate under S.
167 Cr.P.C shall be brought by the police before the Magistrate if the investigation is
not completed within 24 hours. Magistrate takes decision whether the accused should
be detained in the custody further or not. At this stage, the Magistrate can release the
accused on bail on an application made by him, if he is satisfied that there are no
grounds to remand him to custody, but if he is satisfied that further remand is
necessary, then he can give the custody to authorities.

20
Noor Jahan v. State of Karnataka, 1993 CrLJ 102 : ILR 1991 Kar 4081.
21
Sandip Kumar Dey v. Officer-in-charge Sakchi P.S., AIR 1974 SC 871: (1974) 4 SCC 273: 1974 CrLJ 740;
Raj Narain Supdt Central Jail, New Delhi, AIR 1971 SC 178: (1970) 2 SCC 750: 1971 CrLJ 244; Gowri
Shankar v. State of Bihar, AIR 1972 SC 711: (1972) 1 SCC 564; M. Sambasiva Rao v. Union of India, AIR
1973 SC 850: 1973 CrLJ 663.
22
K. Paliniyappan v. State of A.P., 1999 CrLJ 3616 (3617,3618) : 1999 (3) ALD 397.

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MEMORIAL ON BEHALF OF PETITIONER
 4. The provisions of §167 Cr.P.C this section are mandatory23 If the detention was beyond
twenty four hours in violation of §57Cr.P.C subsequent detention under this section by
an order of Magistrate legalising the earlier illegal detention. 24 If the period of 24 hours
has been passed without complying with the requirement of the clause, the arrested
person is entitled to be released forthwith.25

5. After his arrest, even if that is illegally made, the accused can, immediately on being
produced before the Magistrate under §36-A (1) of NDPS can raise to protest to his
confinement. If and when that is done, the Magistrate may enquire himself into the
complaint of infringement of S. 52(1) of NDPS of the accused not being informed of
"ground" for his arrest or of search made of his person in contravention of S. 50 of
NDPS, or he can "forward" him to the Special Court with respect to that grievance
because "at any time" that order he can pass as contemplated under S. 36-A (b)
proviso.

6. That in our present case Dr. Vatsal was never been produced before a magistrate andf
the Case law supporting the contentions above here mentioned are as follows –

7. In Ajeet Singh v State of U.P.26, it was held the court has a duty to balance the
freedom of a person and the right of the Executive to investigate the offence.
Therefore, the court has to examine whether the investigation is being made in
accordance with the law, and if it comes to the conclusion that the investigation is
nothing but a means to harass the accused, the court can always interfere with
investigation.

8. NDCA Officials also not produced the accused within 24 hours and was keeping him
in unauthorised custody. Hence, based on the above mentioned case it is humbly
submitted that the Court take up this case.

23
P.C. Kakar v. Director General of Police, 1986 (1) Crimes 620, 625 (AP)
24
Rajani Kanta Meheta v. State of Orissa, 1975 CrLJ 83 (Ori): 40 (1974) CLT 922.
25
P.C. Kakar v. Director General of Police, 1986 (1) Crimes 620, 625 (AP)
26
. 2007 Cr LJ 170

16
MEMORIAL ON BEHALF OF PETITIONER
B. Violation of fundamental right under article 21.

9. In case of Nilabati v State27it was held that under Art. 21 there is a great responsibility
on the police or prison authorities to ensure that the citizen in their custody is not
deprived of his right to life and the limited liberty left to him. The defence of
'sovereign immunity' in such cases is not available to the State-

10. In case of Nirmal Singh v State28it was held that Fair hearing/Fair investigation and
fair trial accused is entitled to a fair investigation. Fair investigation and fair trial are
concomitant to preservation of fundamental right of an accused under Article 21. A
victim of crime is equally entitled to a fair investigation.

11. In case of Manu Sharma v State29it was held that –

“It is not only the responsibility of the investigating agency but as well as that of the
courts to ensure that investigation is fair and does not in any way hamper the freedom
of an individual except in accordance with law. Equally enforceable canon of the
criminal law is that high responsibility lies upon the investigating agency not to
conduct an investigation in tainted and unfair manner. The investigation should not
prima facie be indicative of a biased mind and every effort should be made to bring the
guilty to law as nobody stands above law dehors his position and influence in the
society.”

27
. AIR 1993 SC 1960: (1993)2 SCC 746: 1993 Cr LJ 2899, para 63.
28
.(2009) SCC 441 (para 28).
29
. (2010) 6 SCC 1.

17
MEMORIAL ON BEHALF OF PETITIONER
ISSUE IV – WHETHER HIGH COURT OF JAIPURIA HAS THE POWER TO
ADJUDICATE UPON THE ACTS OF PRESCRIPTION OF DRUGS FOR
MEDCINAL PURPOSE BY DR. VATSAL?

Yes High Court of Jaipuria has the power to adjudicate upon the act of prescription of drugs
for medicinal purposes by Dr. Vatsal because he was registered medicinal practitioner under
the state government and he was following the laws for prescription of narcotic drugs of
central government in consonance with rules made by state government of Jaipuria.

A. Dr. Vatsal having drug license

1. According to chapter – 5 A of NDPS RULES 1985, dr. vatsal was possing essential
narcotic drugs for use in his practice and he was having authorization from the
competent authority (The controller of drugs).

B. Maintenance of records and furnishing of information

2. Apart from working at the hospital, Dr. Vatsal used to lookafter the patients during
the weekends only at his clinic. According facts when Dr. Vatsal was asked for
register, some enteries were missing from the register. This was because all the bills,
accounts, registers of medicines were maintained by his wife in his clinic. As her wife
was in capacity of homemaker and she also looks after his children, it is possible that
due to work load and mutiple tasking some of the enteries got missed.

3. But the counsel for petition is willing to give the computer generated bills (bill receipt
) of every drugs which is sold to patients of Dr. Vatsal which include the bill of
prescribed drugs to Mr..Anirudh. These bills include such dates in which
corresponding entries were missing from register. These bills are audited and
uploaded on government portal every month so the question of fake bills is ruled out.

4. Furthermore, the Narcotic Psychotropic Substances Rules, 1985, govern the

dispensation of controlled drugs by RMPs. Under Rules 52H(2) and 52H(3),every
RMP is required to maintain a daily account of all the transactions of essential
narcotics in Form no.3Dand a separate record for each patient in Form no.3E,

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MEMORIAL ON BEHALF OF PETITIONER
 respectively. RMPs are also required to maintain a record of all receipts and
disbursements of essential drugs in the manner prescribed in Form no. 3H.

5. According to rule 67A(b) of Chapter – XIIA, under NDPS Rules 1985, the provision
of Narcotic drugs and psychotropic substances for medical purpose are given and the
person performing medical functions are suppose to keep records concerning the
acquisition of the substance and the details of their use in Form 7 of these rules.

6. According to §18B of D&C Act 1940 a licensee who have license under clause (c) of
section 18 shall keep and maintain such records, registers and other documents as may
be prescribed.

7. That in the present case the petitioners argue that Dr. Vatsal has the records under
Form 7 as well as the records duly maintained under §18B of said Act.The entries of
Mr. Anirudh were got missed from Form No.3E. The entries of certain dates which
were missing can be cross-checked and verified from Daily register maintained under
Form 3D, the Computer generated invoices, Form 7 of NDPS rules and from record
maintained under S.18B ofD&C Act 1940.

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MEMORIAL ON BEHALF OF PETITIONER
 PRAYER

WHEREFORE, IN THE LIGHT OF FACTS STATED, QUESTION PRESENTED,

ARGUMENTS ADVANCED AND AUTHORITIES CITED, PETITIONER
RESPECTFULLY REQUESTS THIS HON’BLE COURT TO ADJUDGE AND
DECLARE THAT:

1. The court have jurisdiction u/a 226 of Constitution of India;

2. The petitioner should be released at once without any further delay by the concerned
authorities ;

3. The authorities are been directed to pay compensation to the petitioner for the
unlawful detention of the detainee and the costs of the court and of the pleader.

AND TO PASS ANY SUCH OTHER ORDER, DISCRETION & JUDGMENT AS

THISHON'BLE COURT MAY DEEM FIT IN THE INTEREST OF JUSTICE, EQUITY,
AND GOOD CONSCIENCE.

Respectfully Submitted

Counsel for Petitioner

UIC – 54

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MEMORIAL ON BEHALF OF PETITIONER