KIIT SCHOOL OF LAW

MOOT COURT AND INTERNSHIP (CLINIC-III) LW5084

IN THE CASE OF
HAPPY DAY PVT.LTD. …
PETITIONER 1
PREM CHOPRA …
PETITIONER 2
PINKY CHOPRA …
PETITIONER 3
ROAST(OPC) PVT. LTD …
PETITIONER 4
JALI SINGH …
PETITIONER 5

~VERSUS~

CENTRAL BUREAU OF NARCOTICS …

RESPONDENT 1

SPECIAL LEAVE PETITION

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS

COMPANION JUSTICES OF THE HON’BLE SUPREME COURT OF
TAKATPUR

MEMORIAL FOR RESPONDENT

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Memorial for Respondent Table of
Contents
NAME-Saswat Pattnaik
BBA-LLB(B)
ROLL NO- 1982080

TABLE OF CONTENTS

STATEMENT OF ABBREVIATIONS...................................................................................III

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

WEB REFERENCES................................................................................................................X

STATEMENT OF JURISDICTION......................................................................................XII

STATEMENT OF FACTS...................................................................................................XIV

ISSUES RAISED..................................................................................................................XVI

SUMMARY OF ARGUMENTS.........................................................................................XVII

ARGUMENTS ADVANCED..............................................................................................XVI

ISSUE-1: WHETHER THE PETITIONERS HAVE A LOCUS STANDI BEFORE THE

HON’BLE SUPREME COURT OF ERANGLE?............................................................XVI

1.1 Absence Of A Substantial Question Of Law .........................................................XVI

1.2 Present Petition Is Frivolous That Is Leading To Misuse Of Process Of Court . XVIII

ISSUE-2: WHETHER THE UNFETTERED DISCRETION VESTED UPON THE

CENTRAL GOVT. PERTAINING TO ASCERTAINMENT OF COMMERCIAL
QUANTITY LEADS TO ARBITRARY EXERCISE OF POWER?...............................XXI

2.1The Delegation Of Power To Central Government Is Not Vague...........................XXI

2.2 The Delegation Of Power To Central Government Is Not Arbitrary...................XXII

ISSUE III: WHETHER THE CONVICTION IMPOSED UPON DEVI MADIA AND
Prem Chopra IS LIABLE TO BE SET ASIDE? ...........................................................XXVI

3.1 The Offences Are Made Out Against Pinky Chopra And Prem Chopra ............XXVI

3.2 The Courts Below Have Rightfully Upheld The Conviction Of The Accused. .XXVII

3.3 Absence of Series Of Doubts In The Proceedings Of The Conviction.............XXVIII

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 ISSUE-4: WHETHER ROAST BEING AN INDERMEDIARY BE HELD LIABLE
UNDER FOR TRANSPORTATION OF CONTRABAND SUBSTANCES?.............XXIX

4.1 Roast Was In Constructive Possession Of The Contraband Substances..............XXIX

4.2 The Intermediary Can Be Held Liable As Per § 79 Of It Act, 2000.....................XXX

PRAYER FOR RELIEF...................................................................................................XXXII

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 STATEMENT OF ABBREVIATIONS

¶ PARAGRAPH

¶¶ PARAGRAPHS

AIR ALL INDIA REPORT

App. APPLICATION

Hon’ble HONORABLE

HC HIGH COURT

Art. ARTICLE

Ors. OTHERS

SC SUPREME COURT

SCC SUPREME COURT CASES

UOI UNION OF INDIA

Doc. DOCUMENT

NDPS THE NARCOTIC DRUGS AND

PSYCHOTROPIC SUBSTANCES, ACT,
1985

ed. EDITION

v. VERSUS

J. JOURNAL

L. LAW

Ltd. LIMITED

No. NUMBER

p. PAGE NO.

Rep. REPUBLIC

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MEMORIAL FOR RESPONDENT STATEMENT OF
ABBREVIATIONS
 Res. RESOLUTION

Appn./App. no. APPLICATION NUMBER

Cr.PC THE CODE OF CRIMINAL

PROCEDURE, 1973

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ABBREVIATIONS
 INDEX OF AUTHORITIES

PRIMARY AUTHORITIES

Sl.
Authority Name
No.
1. Bahujan Sahityadhara Prakashan's Narco Analysis Test (Forensic Evidence?) by
Adv. Nandini C. Shahasane (2ND EDITION )

2. Code of Criminal Procedure by B.B.Mitra (2ND EDITION )

3. Commentary on The Code of Criminal Procedure,1973 by Batuk Lal (2ND

EDITION )

4. Commentary on The Code of CriminalProcedure by Ratanlal & Dhirajlal (2ND

EDITION )

5. Commentary on The Narcotic Drugs and Psychotropic Substances Act with

latest case law by Dr. JN Barowalia and Abhishek Barowalia (2ND EDITION )

6. Constitution Law of India by Dr.Pandey (3rd EDITION )

7. Constitution Law of India by H.M.Seevai (4th EDITION )

8. Constitution of India by D.D.Basu (9TH EDITION) VOL. 2, VOL. 3, VOL.4,

VOL.5.

9. Constitution of India by V.N.Shukla (4th EDITION )

10. Constitutional Amendments in India by M.V.Pylee (6th EDITION )

11. Constitutional Choices by Lawrence H. Tribe (2ND EDITION )

12. Constitutional Justice by Allan (3rd EDITION)

13. Constitutional Law by Rai (2ND EDITION )

14. Constitutional Miscellany (3rd EDITION )

15. Criminal Justice Administration in India by Shiv Kumar (2ND EDITION)

16. Criminal Law by PSA Pillai’s (2ND EDITION)

17. Criminal Procedure by CK Thakker ‘Takwani’and MC Thakker (3rd EDITION)

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 18. Criminal Procedure by R.V.Kelkar’s (4th EDITION)

19. Evidence: Cases and Materials by SV Joga Rao

20. India’s Constitution Origins and Evolution (4th EDITION)

21. Indian Constitution Law by MP Jain (6TH EDITION)

22. Indian Legal and Constitutional History by V.D.Kulshreshtha’s (2ND EDITION)

23. Interpreting Constitution by Goldsworthy (2ND EDITION)

24. Iyer’s Comprehensive Classic on The Narcotic Drugs and Psychotropic

Substances Act, 1985 (2ND EDITION)

25. Law of Evidence by Vepa P.Sarathi (2ND EDITION)

26. Law Of Evidence by Woodroffe and Amir Ali (1st EDITION)

27. Law on Control of Narcotic Drugs and Psychotrpic Substances in India by Dr.
MC Mehanathan (3rd EDITION)

28. Law Relating to Crime & Punishments by R.C.Srivastava (3rd EDITION)

29. Lawmann's Law of Narco-Analysis Right Against Self Incrimination by

Ramachandran for Kamal Publishers (4th EDITION)

30. Narcotic Drugs and Psychotropic Substances Act with rules by Vision
Publications

31. Narcotic Drugs by Anil Aggrawal (1st EDITION)

32. Principal of The Law Of Evidence by Dr. Avtar Singh (3rd EDITION)

33. Sriniwas’s Commentary on The Narcotic Drugs and Psychotropic Substances

Act, 1985 (2ND EDITION)

34. Sriniwas's Commentary on The Narcotic Drugs and Psychotropic Substances

Act, 1985 and Rules [Law, Practice & Procedure] [HB] by Premier Publishing
Company(1st EDITION)

35. Supreme Court on Narcotics and Drugs with the NDPS Act, Drugs and

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AUTHORITIES
 Cosmetics Act, and NDPS Rules (1950 to 2018) (in 2 Volumes)

36. Taxmann’s Law Relating to Narcotic Drugs & Psychhotropic Substances (3rd
EDITION)

37. The Code of Criminal Procedure by S.N.Mishra (2ND EDITION)

38. The Indian Constitution and Social Revolution by Ananth (2ND EDITION)

39. The Law Of Evidence- A Concise Commentary by Ram Jethmalani and DS

Chopra

40. The Law of Evidence by Ratanlal & Dhirajlal

CASES

Sl. Case Title & Citation

No

1. Ashok Nagar Welfare Association v. R.K. Sharma AIR 2002 SC 335

2. Bachan Singh v. State of Punjab AIR 1980 SC 898

3. Bengal Chemical Association v R.K. Sharma AIR 1959 SC 633

4. Charanjit Singh v. RC Jain (2003) 1 SCC 758

5. Daya Singh Lahoriya v. State of Rajasthan (2007) 1 SCC 366

6. Dilip Singh v. State of M.P. (2007) AIR SC 369

7. F.L. Kapoor v. Jagmohan AIR 2005 SC 2221

8. Gwalior Rayon Silk Mfg. Ltd. v. CST (1974) 4 SCC 98

9. Hira Singh v. Union of India 2020 SCC OnLine SC 382

10. Inder Sain v. State of Punjab AIR 1973 2309

11. In Re Delhi Laws Act AIR 1951 SC 332

12. Jaherkhatoon v. Salambin Mohammed (1999) 2 SCC 758

13. Jai Ram Yadav v. State of UP 2020 SCC OnLine 1362

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AUTHORITIES
14. Kamruddin v. State ( NCT of Delhi) CRL. A.No. 992 of 217

15. Karnail Singh v. State of Punjab (2009) 8 SCC 539

16. Kerala EB v. Indian Aluminium Co. Ltd. (1976) 1 SCC 466

17. M.K. Papiah and Sons v. Excise Commissioner (1975) 1 SCC 492

18. Mohan Lal v. State of Rajasthan (2015) 6 SCC 222

19. Noor Aga v. State of Punjab (2008) 16 SCC 417

20. Rajendra Pralhadrao Wasnik v. State of Maharashtra (2019) 12 SCC 495

21. Sajan Abhraham v. State of Rajasthan (2001) 6 SCC 69

22. Sanjay Kumar Kedia v. Narcotics Control Bureau (2010) 1 SCR 555
23. Shreya Singhal v. Union of India AIR 2015 SC 1523

24. St. John Techer’s Training Insititute v. NCTE AIR 2003 SC 1533

25. State of Bombay v. Rusy AIR 1960 SC 391

26. State of H.P. v. Pawan Kumar (2005) 4 SCC 350

27. State of Punjab v. Baldev Singh 1999 (6) SCC 172

28. State of Punjab Vs. Baljinder Singh. AIR 2019 (SC) 5298

29. State of Rajasthan v. Kheraj Ram AIR 2004 SC 394

30. State of Rajasthan v. Ram Chandra AIR 2005 SC 394

31. Sushil Murmu v. State of Jharkhand

32. Ujagar Singh and Anr. V. State (Delhi Administration)

33. Union of India v. Carpenter Workers Union (2006) 12 SCC 436

34. Union of India v. Major Singh. (2006) 9 SCC 170

JOURNALS

Sl. No. Journal Details

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 1 Cullen, M. J., & Sackett, P. R. (2004). Integrity testing in the workplace. In J.
C. Thomas & M. Hersen (Eds.), Comprehensive handbook of psychological
assessment, Volume 4: Industrial and organizational psychology (pp. 149-
165). Hoboken, NJ: John Wiley & So.

2 Ones, D. S., Viswesvaran, C., & Schmidt, F. L. (1993). Comprehensive

meta-analysis of integrity test validities: Findings and implications for
personnel selection and theories of job performance. Journal of Applied
Psychology, 78, 679-703.

3 Sackett, P. R., & Wanek, J. E. (1996). New developments in the use of

measures of honesty, integrity, conscientiousness, dependability,
trustworthiness and reliability for personnel selection. Personnel Psychology,
49(4), 787-829.

STATUTES

Sr. No. Name of the Statute

1. THE CODE OF CRIMINAL PROCEDURE, 1973
2. THE INDIAN EVIDENCE ACT, 1872
3. THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985
4. THE INFORMATION TECHNOLOGY ACT, 2000

WEB REFERENCES
Sr. No. Name of Reference
1 WWW.HEINONLINE.ORG (HEINONLINE)
2 WWW.JSTOR.ORG (JSTOR)
3 WWW.JUDIS.NIC.IN (SUPREME COURT OF INDIA OFFICIAL)
4 WWW.MANUPATRAFAST.COM (MANUPATRA)
5 WWW.SCCONLINE.CO.IN (SCC ONLINE)
6 WWW.WESTLAWINDIA.COM (WESTLAW INDIA)

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 7 WWW.ENVFOR.NIC.IN (GOVERNMENT OF INDIA OFFICIAL)

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 STATEMENT OF JURISDICTION

THE RESPONDENT HAVE THE HONOUR TO SUBMIT BEFORE THE HON’BLE

SUPREME COURT OF THE UNITED STATE OF INDUS, THE MEMORANDUM FOR
THE RESPONDENT UNDER ARTICLE 1361 (SPECIAL LEAVE TO APPEAL BY THE
SUPREME COURT) OF THE CONSTITUTION OF ERANGLE, 1950.

1
1 Art. 136. Special Leave to Appeal by the Supreme Court.
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave
to appeal from any judgement, decree, determination, sentence or order in any cause of matter passed or
made by any Court or tribunal in the territory of Takatpur
(2) Nothing in clause (1) shall apply to any judgement, determination, sentence or order passed or made by
any Court or tribunal constituted by or under any law relating to the Armed Forces.

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MEMORIAL FOR RESPONDENT
 THE PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTIONS &
ARGUMENTS IN THE PRESENT CASE.

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 STATEMENT OF FACTS

Background

Takatpur is one of the world’s largest democracies. The State of Vikaspur is a state within
Takatpur. The legal system of the nation is still at a developing stage with strict punishment
for various offences. However, the laws on offences related to narcotics and psychotropic
substances is still at a nascent and developing stage. The Central Bureau of Narcotics (CBN)
provides licenses for the cultivation of Marijuana to several farmers who were having land
for cultivation in the southern part of the State of Vikaspur. Prem Chopra, is one of the
licensed cultivators, with around 10 acres of land in the district of Sanhok. He is also one of
the wellknown tribal leaders with immense power and political influence in the district. He
also runs a popular restaurant chain named, 'Happy- Days Pvt. Ltd.' The company has two
directors, Prem Chopra and his sister Pinky Chopra, who are responsible for overseeing the
affairs and key managerial decisions.

Facts of the Present Case

On 2nd January, 2022, Pradyuman Daya, one of the senior most officer in the narcotics
department visited the Happy- Days Pvt. Ltd. restaurant with his wife and daughter. As the
restaurant was heavily crowded, he decided to go to the premium lounge. However, he was
stopped at the entrance for not having an access card which is a requirement for entry in the
lounge. Hearing this, he requested immediately to have an access card made. His request was
denied as the security personnel did not have the authority to do the same. As a consequence,
Mr Daya left empty stomach. On 5th January, 2022 the Central Bureau of Narcotics received
an anonymous tip regarding the fact that Happy- Days was delivering Marijuana (ganja)
through online delivery partner, Swigato. The way this system worked was when the person
would add their special access code in the app, they would get an option for an add-on called,
“Extra-Greens”.

On 6th January, 2022, a team from Central Bureau of Narcotics under the leadership of Mr
Daya raided the Happy- Days Pvt.Ltd. (Bharatpur Branch). On being asked, the staff in the
restaurant admitted to having possession of Marijuana. On apprehending, the staff was made
aware of the fact they have a legal right to be searched in presence of a Gazetted officer or
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Magistrate. To this, the restaurant staff expressed their consent to being searched by the
Bureau officials. Their consent was recorded in writing.

In their search, they found 400grams in quantity from the premium lounge and on searching a
black colour SUV parked outside, with the Happy-Days sticker, they found 19.7 Kg pack of
marijuana in the boot of the vehicle, marked with the licence number issued to Prem
Chopra.This led to the initiation of a criminal proceeding against the petitioners under section
8(c) r/w section 19, section 20(b) and section 38 of NDPS Act.

Circumstances leading to filling of the Appeal

In a Special Sessions Trial No. 298/2022 before the Additional Sessions Judge/ Fast Track
Court II, Bharatpur, all the parties, Prem Chopra, Pinky Chopra and Jali Singh, presented
their case. On 11th September, 2022, the Additional Sessions Judge concluded that the
prosecution was successfully able to prove the guilt of the Petitioners beyond a reasonable
doubt. Consequently, the company Happy-Days Pvt. Ltd. was held liable under section 38 of
NDPS Act, which led to Prem Chopra and Pinky Chopra being held liable for offences under
section 38 and 20(b)(iii) of the NDPS Act, Prem Chopra was also held liable under section 19
of the NDPS Act. Both of them were sentenced to a rigorous imprisonment of 20 years with a
.2,00,000/- each. Additionally, Prem Chopra was also sentenced for 20 years for being held
liable for offence under section 19 of the NDPS Act. Jali Singh, the director of Roast OPC
Private Limited was held liable under section 20(b)(ii) of the Act and was imposed with an
imprisonment of 10 years with 1 lakh fine.

¶ Pinky Chopra and Prem Chopra challenged their conviction before the Hon’ble High Court
of Vikaspur on the ground that the evidence was not properly appraised and the conviction
was based on a series of doubts. Jali Singh also challenged his conviction on the ground that
his delivery app is simply an intermediary. The Hon’ble High Court dismissed their appeal.
Aggrieved by the decision of the High Court, the three filed separate Special Leave Petitions
in the Hon’ble Supreme Court of Takatpur. The Apex Court premising upon the similarity
and relativeness of the matter decided to club the three petitions.

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 ISSUES RAISED

ISSUE I- WHETHER THE PETITIONERS HAVE A LOCUS STANDI BEFORE THE

HON’BLE SUPREME COURT OF ERANGLE?

ISSUE II -WHETHER THE UNFETTERED DISCRETION VESTED UPON THE

CENTRAL GOVT. PERTAINING TO ASCERTAINMENT OF COMMERCIAL
QUANTITY LEADS TO ARBITRARY EXERCISE OF POWER?

ISSUE III - WHETHER THE CONVICTION IMPOSED UPON PREM CHOPRA

AND PINKY CHOPRA IS LIABLE TO BE SET ASIDE?

ISSUE IV -WHETHER TOSATO BEING AN INDERMEDIARY BE HELD LIABLE

UNDER FOR TRANSPORTATION OF CONTRABAND SUBSTANCES?

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 SUMMARY OF ARGUMENTS

ISSUE 1-WHETHER THE PETITIONERS HAVE A LOCUS STANDI

BEFORE THE HON’BLE SUPREME COURT OF ERANGLE?

It is humbly submitted before the Hon’ble Supreme Court of Takatpur that the instant Special
Leave Petition is not maintainable under Art. 136 of the Constitution. The Respondent
humbly contends that Art. 136 does not confer any right of appeal upon the party, but vests a
discretion in the Hon’ble Supreme Court to interfere in exceptional cases. Furthermore, in the
present case there is no substantial question of law that has remained unanswered, which if
remained unanswered would cause gross miscarriage of justice. The questions raised before
this Hon’ble Court are frivolous in nature thereby affecting the locus standi of the Petitioners.

ISSUE 2- WHETHER THE UNFETTERED DISCRETION VESTED UPON THE

CENTRAL GOVT. PERTAINING TO ASCERTAINMENT OF COMMERCIAL
QUANTITY LEADS TO ARBITRARY EXERCISE OF POWER?

It is most humbly submitted before the Hon’ble Supreme Court of Takatpur that the
delegation of legislative power to the Central Government with regards to ascertainment of
commercial quantity of contraband substances under the Narcotic Drugs and Psychotropic
Substances Act, 1985 is not vague and arbitrary in nature. The delegation is not excessive in
nature and is not causing the parties any harm in the present petition.

ISSUE 3- WHETHER THE CONVICTION IMPOSED UPON PREM CHOPRA AND

PINKY CHOPRA IS LIABLE TO BE SET ASIDE?

It is most humbly submitted before the Hon’ble Supreme Court that the offences under which

Prem Chopra and Pinky Chopra were convicted under have been made out and thus, are not
liable to be set aside. It is submitted that the conviction of Prem Chopra and Pinky Chopra
has been upheld by Courts, including the Fast Track Court II, Bharatpur and the Hon’ble

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High Court of Vikaspur. It is humbly submitted that all the procedural requirements have
been met with. The lower courts in the present matter have sufficiently appreciate all
evidences and questions of law involved and the conviction is not premised upon a series of
doubts. Thus, it is humbly submitted that the conviction of Prem Chopra and Pinky Chopra is
not liable to be set aside.

ISSUE 4- WHETHER ROAST BEING AN INTERMEDIARY BE HELD LIABLE

FOR TRANSPORTATION OF CONTRANBAND SUBSTANCES?

It is humbly submitted before the Hon’ble Supreme Court that Roast has been found in
constructive possession of marijuana. It is humbly submitted that in the present case Roast
cannot escape liability from an offence on the grounds of being intermediary, as they had a
duty of care which they breached. Thus, it is humbly submitted that Roast being an
intermediary can be held liable.

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 ARGUMENTS ADVANCED

ISSUE-1: WHETHER THE PETITIONERS HAVE A LOCUS STANDI BEFORE THE

HON’BLE SUPREME COURT OF ERANGLE?
(¶1.) It is most humbly submitted before this Hon’ble Supreme Court of Takatpur that Art.
1362 does not confer any right of appeal upon the party, but vests a discretion in the Hon’ble
Supreme Court to interfere in exceptional cases3. “Judicial Discretion” means the exercise of
judgment by a court or a judge based on what is fair under the circumstances and guided by
the principles and rules of law. The word “discretion” implies the absence of a hard-and-fast
rule. Even in cases where special leave is granted, the power is vested in the Court to remain
with the Court even at the stage when the appeal comes up for hearing 4.Such is the situation
in the present case. Even though the case is listed for detailed hearing, the Respondents
humbly submits that the lack of substantial question of law and other considerations
appealable to discretionary power under Article 136 makes the present petition fit for
dismissal.

1.1 ABSENCE OF A SUBSTANTIAL QUESTION OF LAW

(¶2.) It is most humbly submitted that this Hon’ble Court will grant special leave to appeal in
exceptional cases, where grave & substantial injustice has been done in disregard of the
forms of legal process, violation of principles of natural justice or otherwise. 5 It is further
humbly submitted that there are no extraordinary circumstances as such in the present case
which renders this petition not maintainable under Art. 136.

(¶3.) It is humbly submitted that the Hon’ble Court, in such cases, does not interfere based on
a hypothetical or theoretical grievance of petitioner. Only when substantial and real grievance
is made out, the non-redressal of which would cause grave injustice and prejudice to the
aggrieved party, the jurisdiction under Article 136 of the COI is exercised. Special Leave
Petitions are also liable to rejected in limine when the pleadings are irrelevant, contemptuous
and incoherent in nature and do not raise substantial questions of law.6
2
INDIA CONST. art. 136
3
Ashok Nagar Welfare Association v. R.K. Sharma, (2001) 1 SCC 749; Bengal Chemical & Pharmaceutical
Works Ltd. V Employees, AIR 1959 SC 633(635); State of Bombay v Rusy, AIR 1960 SC 391 (395)
4
Ibid.; Jaherakhatoon v. Salambin Mohammad, (1999) 2 SCC 635 : AIR 1999 SC 1104.
5
Sanwat Singh v State of Rajasthan, AIR 1961 SC 715.

6
Charanjit Singh v. RC Jain, (2003) 1 SCC 758
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MEMORIAL FOR RESPONDENT
 1.2 PRESENT PETITION IS FRIVOLOUS THAT IS LEADING TO MISUSE OF
PROCESS OF COURT

(¶4.) It is humbly submitted that even after the appeal is admitted and special leave is
granted, the appellant must show that special and exceptional circumstances exist, and that, if
there is no interference, grave and substantial injustice will result and the case has features of
sufficient gravity to warrant a review of the decision appealed against on merits. The
Supreme Court has held that no useful purpose being served by appeal, even after entering
into merits of the case, renders the special leave petition infructuous. 7 The facts in the instant
matter fail to ascertain or to indicate even remotely any circumstance of legal injury or
injustice. Hence, it is humbly submitted that the frivolous matter filed before the Hon’ble
Supreme Court is misusing the practice and procedure.

(¶5.) It is humbly contended that the questions of law raised are frivolous in nature thereby
rendering the present petition frivolous before the Hon’ble Supreme Court of Takatpur It is
further humbly submitted that the Petitioners in this instant case is invoking the extraordinary
jurisdiction of the Hon’ble SC under Art 136 just to set aside their conviction under the
NDPS Act,1985. The nature of the questions put forth before this forum has not been raised
before the previous forums thereby making it evident that the Petitioner’s only intention is to
cause inordinate delay in the due execution of the criminal proceedings.

II. WHETHER THE UNFETTERED DISCRETION VESTED UPON THE

CENTRAL GOVT. PERTAINING TO ASCERTAINMENT OF COMMERCIAL
QUANTITY LEADS TO ARBITRARY EXERCISE OF POWER?

(¶6.) It is most humbly submitted before the Hon’ble Court that the discretion vested upon
the Central Government under the Narcotic Drugs and Psychotropic Substances Act, 1985

7
Union of India v. Carpenter Workers Union, (2006) 12 SCC 435, 436 (para 2); Daya Singh Lahoriya v. State of
Rajasthan, (2007) 5 SCC 366, 369 (¶ 15 & 16).

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MEMORIAL FOR RESPONDENT
(herein after NDPS Act) for ascertainment of small quantity 8and commercial quantity9 is not
unfettered and does not lead to arbitrary exercise of power. The afore- stated contention is
substantiated in a two-fold manner. [2.1] The delegation of power to Central Government is

not vague, [2.2] The delegation of power to Central Government is not arbitrary.

[2.1] THE DELEGATION OF POWER TO THE CENTRAL GOVERNMENT IS NOT

VAGUE

(¶7.) It is most humbly submitted before the Hon’ble Court that § 2(viia) and § 2(xxiiia) of
the NDPS Act, 1985 gives power to the Central Government to ascertain the specific quantity
which would amount to commercial quantity and small quantity respectively by a notification
in the Official Gazette, thus making the above provisions a delegated legislation. Delegated
legislation is a legislation made by a body or person other than by the legislature or
Parliament by virtue of the powers conferred upon it by a statute.10

(¶8.) As a result of the expanding of the horizons of the State, activity, the bulk of legislation
is so great that it is not possible for the legislature to devote sufficient time to discuss each
aspect of a matter with utmost detail. The legislature only forms the general policy, that is,
the ‘skeleton’ and empowers the executive to fill in the details, that is, give flesh and bone to
the skeleton and give it life.11

(¶9.) It is was held in the case of, Hamdard Dawakhana v. Union of India12 before this
Hon’ble Court, that a delegated legislation will be held to be excessive if the legislature does
not provide a criteria, standards or guidelines according to which the Government is expected

8
§2(viia) of Narcotic Drugs and Psychotropic Substances Act, 1985, Commercial Quantity.
9
§2(xxiii) of Narcotic Drugs and Psychotropic Substances Act, 1985, Small Quantity
10
CK Takwani, Lectures on Administrative Law p39 (3rc Edn., Lexis Nexis Publication
11
In Re Delhi Laws Act, AIR 1951 SC 332; See also, Gwalior Rayon Silk Mfg. Co. Ltd. v. CST, (1974) 4 SCC
98; M.K. Papiah and Sons v. Excise Commissioner, (1975) 1 SCC 492; Kerala SEB V. Indian Aluminium Co.
Ltd., (1976) 1 SCC 466; St. John Teacher’s Training Institute v. NCTE.
12
AIR 1960 SC 354.

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MEMORIAL FOR RESPONDENT
to function. The delegated powers will be held to be excessive if the power conferred is
unguided and uncontrolled.

(¶10.) It is humbly submitted that when delegating legislative powers to the Executive, one
must take into account that sometimes the subject-matter of the delegation is extremely
technical, in a manner that goes beyond the capabilities of the legislator and the presence and

assistance of experts is required. Hence, the legislative powers may be delegated to experts to

efficiently deal with the highly technical problems, example being, gas, atomic energy, drugs,

electricity, etc.13

(¶11.) The laws regarding narcotic drugs and psychotropic substances are still at a nascent
and developing stage in Erangle14 It is humbly submitted before the Hon’ble Court that area
of narcotic drugs and psychotropic substances is a very technical and scientific field. In the
present case, a question regarding the Central Government’s power to ascertain of specific
weight of commercial quantity has been raised by the Petitioners. However, it is reverently
contended that the ascertainment of specific weight of commercial quantity falls within the
technical aspect of law-making. Such ascertainment is based development in research and
statistical data to ensure that penalties levied upon persons under the NDPS Act are based in a
manner that is not extremely harsh or arbitrary.

(¶12.) The power delegated to the central government is very specific and guided, therefore,
it is humbly submitted before the Hon’ble Court that the delegated legislation is not vague in
nature.

2.2 THE DELEGATION OF POWER TO THE CENTRAL GOVERNMENT IS NOT

ARBITRARY

13
Ibid
14
¶ 1, Moot Proposition.
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(¶13.) It is humbly submitted before the Hon’ble Court that, the power given to the Central
Government to ascertain the quantities of commercial quantity of contraband substances is
not an arbitrary delegation of power.

(¶14.) It is submitted before the Hon’ble Court that, the power of delegation given to the
Central Government to ascertain commercial quantity is not unfettered or arbitrary. It is
submitted that statistical data regarding possession and use of narcotics is constantly
developing and bringing new information to light that needs to be taken into consideration
while deciding penalties under NDPS Act. Therefore, it is submitted that the ascertainment to
commercial quantities comes with significant amount of unforeseen contingencies. The
discretion granted upon the Central Government is made after taking into account the
flexibility required in this subject area.

(¶15.) It is humbly submitted before the Hon’ble Court that a questions raised in the present
matter by the Petitioners is that there is a perceived ambiguity when it comes measuring the
seized on contraband substances to determine whether or not they fall within or beyond limits
of commercial quantity.

(¶16.) To the question regarding clubbing or adding of the weights of the contraband
substances seized, in the instant case. The addition of the seized quantities is not based on
arbitrariness, but upon the fact that the seized marijuana found in both places have a single
common denominator. It is the fact that both the restaurant and car where, from where the
substances were seized were managed and owned by Prem chopra, respectively. Which
further goes to strengthen the involvement of Prem Chopra and Pinky Chopra (Director of the
restaurant, who is involved in daily affairs) and thus uphold their conviction.15

(¶17.) The second ambiguity, which has been raised by the Petitioners is whether neutral
product is to be included while weighing the contraband substances to decide penalty. It is
humbly submitted before the Hon’ble Court that the law is clear on the mode of ascertaining
the weight of the contraband substances. It was held in the case of Hira Singh V. Union of
15
¶ 10, Moot Proposition
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India 16that while weighing contraband substances, the neutral product has to be included
with the narcotic product.

(¶18.) Thus, it is humbly submitted before the Hon’ble Court that there has been no arbitrary
delegation of power upon the Central Government, additionally, the discretion exercised by
the Central Government is also not creating any ambiguities which is causing harm or injury
to any of the parties involved.

III. WHETHER THE CONVICTION IMPOSED UPON PREM CHOPRA AND

PINKY CHOPRA IS LIABLE TO BE SET ASIDE?

(¶21.) It is humbly submitted before the Hon’ble Court that the offences under which Prem
Chopra and Pinky Chopra were convicted has been clearly made out and thus the convictionis

not liable to be set aside. The following has been substantiated in a three-fold manner: - [3.1]

The offences are being made out against Prem Chopra and Pinky Chopra, [3.2] Courts below
have rightfully upheld the conviction of the accused [3.3] The conviction upheld by the
Hon’ble High Court is not premised upon a series of doubts.

[3.1] THE OFFENCES ARE MADE OUT AGAINST PREM CHOPRA AND PINKY
CHOPRA

(¶19.) The aim and purpose of NDPS Act, 1985 has been to induct stringent provisions which
would regulate and prohibit the operations relating to narcotics drugs and psychotropic
substances.17The law enforcement is responsible for upholding law and order in communities
and preserving public safety as well as protecting its reputation. India’s Preamble clearly
16
6 (2020) SCC OnLine SC 382.

17
Kamruddin v. State (NCT of Delhi), CRL. A. No. 992 of 217
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shows that no-one is above the law. various constitutional provisions including the Chapters
on Fundamental Rights and Directive Principles of State Policy, it is clear that the rule of law
permeates the entire fabric of the Constitution and indeed forms one of its basic features. The
rule of law excludes arbitrariness; its postulate is “intelligence without passion” and “reason
freed from desire”18.

(¶20.) It is submitted before the Hon’ble Court that the essential ingredients of the provisions
under which Prem Chopra and Pinky Chopra are convicted, are being fulfilled. It is submitted
that the Central Bureau of Narcotics has followed procedural requirements. Thus, the
convictions are not liable to be set aside.

[3.1.1] Offence under § 19 is not made out against Prem Chopra

(¶21.) Section 1919 lists out the punishment for embezzlement of opium by the cultivator. It is
humbly submitted that, according to the provision, any cultivator, who is licensed to cultivate
opium by the Central Government, embezzles or illegally disposes of opium shall be held
liable under this provision.

(¶22.) Section 1920 lists out the punishment for embezzlement of opium by the cultivator. It is
humbly submitted that, according to the provision, any cultivator, who is licensed to cultivate
opium by the Central Government, embezzles or illegally disposes off opium shall be held
liable under this provision.

(¶23.) It is humbly submitted before the Hon’ble Court that, Prem Chopra has the licence to
cultivate marijuana, provided by the Central Bureau of Narcotics. Prem Chopra is one of the
directors of the Happy-Day Pvt. Ltd ., he also plays a key role in managing and overseeing
operations of the restaurant. It is humbly submitted before the Hon’ble Court Prem Chopra

18
Bachan Singh v. State of Punjab, AIR 1980 SC 898, See also Sushil Murmu v. State of Jharkhand, AIR 2004
SC 394, State of Rajasthan v. Kheraj Ram, AIR 2004 SC 3432.

19
§ 19 of Narcotic Drugs and Psychotropic Substances Act, 1985, Punishment for embezzlement of opium by
cultivator.
20
§ 19 of Narcotic Drugs and Psychotropic Substances Act, 1985, Punishment for embezzlement of opium by
cultivator.
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used to sell the marijuana he cultivated, in his restaurant to special access card holders. It is
reverently contented before the Hon’ble Court that Prem Chopra has used the restaurant as a

front to veil the sale marijuana. It is humbly submitted that cultivation licence for marijuana
is only provided for scientific and medicinal purposes. 21It is also submitted that after the
cultivation of marijuana, as per section 9(2)(b) 22, the cultivators are required to deposit the
marijuana in government authorised offices. However, in the present case, the 19.7Kg pack
marijuana was found in an SUV with the Happy Days logo, belonging to Prem Chopra in the
parking lot of the restaurant. The pack of marijuana was placed in the boot of the SUV. Thus,
it humbly submitted before the Hon’ble Court that the chain of events displays a clear picture
of the fact that Prem Chopra was misusing his cultivation licence to sell marijuana in the
private lounge of his restaurant to special access card members.

[3.1.2] Offences under § 20(b)(ii)(C) and § 38 are being made out against Prem Chopra
and Pinky Chopra.

(¶24.) It is humbly submitted that § 38 23 of the NDPS Act, 1985 deals with offences by
companies, where any and every person who at the time of the offence being committed was
in charge of, and was responsible for the conduct of the company shall be held liable and
punished accordingly.

(¶25.) It is humbly submitted before the Hon’ble Court that, § 20(b)(ii)(C) 24 of the NDPS Act,
1985 states that whoever, in contravention of the provisions of the Act, possesses,
sells,purchases or transports cannabis exceeding the limit for commercial quantity, shall be
punished with a term of not less than 10 years and may extended up to 20 years with a fine.

21
§ 8 of Narcotic Drugs and Psychotropic Substances Act, 1985, Prohibition of certain operations
22
§9(2)(b) of Narcotic Drugs and Psychotropic Substances Act, 1985, Power of Central Government to permit,
control and regulate.

23
§38 of Narcotic Drugs and Psychotropic Substances Act, 1985, Offences by Companies
24
§20(b)(ii)(C) of Narcotic Drugs and Psychotropic Substances Act, 1985, Punishment for contravention in
relation to cannabis plant and cannabis.
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(¶26.) It is humbly submitted before the Hon’ble Court that when the raiding party enquired
with the restaurant staff they admitted having possession of marijuana. On check of the
premium lounge, which was only accessible to special access card holders, 400g of
Marijuana was found and seized. These access cards are not ordinary in nature because they
are only made available to selected number of chosen individuals and is not available to the
rest, even on request.25 The 19.7Kg pack of marijuana which was found, was found in an
SUV owned by Prem Chopra, in the parking lot of the restaurant. The car had the restaurant
sticker and the marijuana was hidden in the boot of the vehicle. It is therefore, evident that
the sale of marijuana in the restaurant was a well-established system that even included
several safeguards to ensure the secrecy of these illicit affairs. There no way, the petitioners
can claim lack of knowledge or the fact that they had done their due diligence to prevent the
happening or commission of these offences.

(¶27.) It is humbly submitted before the Hon’ble court that all procedural compliances
mentioned under the NDPS Act, 1985 were complied with by the raiding party. The
contention placed by Petitioners that § 50 of the NDPS Act, 1985 has not been complied with
lacks relevancy.26It is submitted before the Hon’ble Court that § 50 of the NDPS Act, 1985
only comes into play in case of search of a person and not premises.27

(¶28.) It is therefore, humbly submitted that the offences under § 38 and section 20(b)(ii)(C)
has been clearly made out against Prem Chopra and Pinky Chopra and their convictions are
not liable to be set aside.

(¶29.) It is humbly submitted that, having regard to the fact that the ganja was recovered
during the transferred being carried away by the persons and the search and seizure was made
at a public place while during the transfer process, so the recovery can well be said under
Section 43 of the Act and the provision of Section 42 of the Act is not applicable as when the
seizure effect in public place, hence, Section 42 of the Act becomes irrelevant and this view

25
¶ 5, Moot Proposition
26
¶ 14, Moot Proposition.
27
State of Punjab v. Baldev Singh, 1999 (6) SCC 172; See also, Dilip Singh v. State of M.P., (2007) AIR SC 369,
State of Punjab Vs. Baljinder Singh, AIR 2019 SC 5298

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MEMORIAL FOR RESPONDENT
is taken in a decisions. 28Therefore, the argument that the accused had any right in respect of
the aforementioned search and that right has been breached is wholly incorrect. The law is
now settled that this condition under Section 50 applies only where the search is of a "person"
of the accused. 29

(¶30.) The exercise of a power which affects the rights of an individual must be exercised in
a manner which is fair and just, and not arbitrary or capricious. 30The non-observance of
natural justice is in itself prejudice to any man and proof of prejudice independently proof of
denial of natural justice is unnecessary.31 In the present case there is no noticeable fact or
evidence that proves that there has been non-compliance on the part of the police or the
prosecution, which seems to have prejudiced the accused. The question of prejudice or bias
has to be established and not inferred and there cannot be any legal presumption in this
regard.3 32

[3.2] THE COURT BELOW HAVE RIGHTFULLY UPHELD THE CONVICTION OF

THE ACCUSED
(¶31.) It is most humbly submitted before this Hon’ble Supreme Court that there is an
absence of a substantial question of law and the Hon’ble High Court has rightfully upheld the
conviction of Prem Chopra and Pinky Chopra under the NDPS Act, 1985.

(¶32.) It is humbly submitted before the Hon’ble Supreme Court that there must be a chain of
events so complete as not to leave any substantial doubt in the mind of the court. Irresistibly,
the evidence should lead to the conclusion which is inconsistent with the innocence of the
accused and the only possibility is that the accused has committed the crime. 33 In furtherance
to this, in the present case the complete chain of events have conclusively lead to the
conviction of Prem Chopra and Pinky Chopra based upon the circumstantial evidence and
facts present before both the Hon’ble Hight Court of Vikaspur and the Additional Sessions
28
Union of India v. Major Singh, (2006) 9 SCC 170.
29
State of H.P. v. Pawan Kumar, (2005) 4 SCC 350
30
Jai Ram Yadav v. State of U.P., 2020 SCC OnLine All 1362 (India).
31
F. L. Kapoor v. Jagmohan, AIR 1981 SC 136 (India).
32
State of Rajasthan v. Ram Chandra, AIR 2005 SC 2221.

33
Rajendra Pralhadrao Wasnik v State of Maharashtra, (2019) 12 SCC 495.
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Judge/Fast Track Court II,Bharatpur. It is further humbly submitted that the raiding party
headed by the senior most officer of the Narcotics Department, has duly followed all the
procedural requirements laid down under the NDPS Act, 1985 with respect to search, seizure
and investigation which is being evidently established by the chain of events.

(¶33.) It is humbly submitted that there is hardly a case, civil or criminal, which does not
raise some question of law or other. It is time that it was realised that the jurisdiction of this
court to grant special leave to appeal can be invoked in very exceptional circumstances. 34

[3.3] ABSENCE OF SERIES OF DOUBTS IN THE PROCEEDINGS OF THE

CONVICTION

(¶34.) It is most humbly submitted before this Hon’ble Court that there has been no scope for
any doubts to arise during the entire procedure that lead to the conviction of Prem Chopra and
Pinky Chopra. It is further humbly submitted that the facts clearly indicate that the premium
lounge of the restaurant was being used for the commission of illegal activities and the
discovery of 400g of Ganja from the premium lounge itself further strengthens the suspicion.

(¶35.) It is most reverently contended that the surprise visit made by the Central Bureau of
Narcotics to the restaurant was deliberate as they received a prior information through an
undisclosed identity which created a reasonable suspicion in the mind of the officers. It is
further submitted that the search was initiated in compliance with § 42 of the NDPS Act,
1985.35 In furtherance to the aforementioned, the officer has complete reason to believe that a
search warrant cannot be obtained without affording opportunity for the concealment of
evidence or facility for the escape of the offender. Prem Chopra is considered to be one of the
influential tribal leaders which creates an undue influence that could alter the circumstances.
Furthermore, along with the procedural requirements under the NDPS Act, 1985, the officers

34
Ujagar Singh and Another v State (Delhi Administration) (1979) 4 SCC 530.
35
§ 42 of Narcotics Drugs And Psychotropic Substances Act of 1985, Power of entry, search, seizure and arrest
without warrant or authorisation.

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went above and beyond and complied with § 50 of the NDPS Act, 1985 even though it was
not pertinent for them to do so which strikes out the possibility of a mala fide intention.

(¶36.) It is humbly submitted before the Hon’ble Court that the non-compliance of the
procedure of search and seizure envisaged under Chapter V of the NDPS act, 1985 does not
vitiate the conviction.36

IV. WHETHER ROAST BEING AN INDERMEDIARY BE HELD LIABLE UNDER

FOR TRANSPORTATION OF CONTRABAND SUBSTANCES?

(¶37.) It is humbly submitted before this Hon’ble Court that the present issue will be
substantiated in a two- fold manner as follows:

[4.1] ROAST WAS IN CONSTRUCTIVE POSSESSION OF CONTRABAND

SUBSTANCES.

(¶38.) Section 35 of the NDPS Act speaks about the presumption of culpable mental state of
the accused. For offences under the NDPS Act, the Court shall presume the existence of such
mental state, the onus to prove otherwise rests upon the accused, that he had no such mental
state with respect to the act charged as offence.

(¶39.) It is humbly contended by the Respondents that presumption of the culpable state of
Mind under Section 35 of the NDPS Act, 1985. Sections 35, 54 and 66 under NDPS Act,
1985 raise presumptions (which are rebuttable) over accused to prove his innocence, although
the standard of proof required for the accused to prove his innocence is Preponderance of
Probability which accused shall have to establish. NDPS Act, 1985 carries reverse burden of
proof under Sections 35 and 54. 37It is humbly submitted by the respondents that Section 35
of the NDPS Act, 1985 deals with the presumption of the culpable mental state of an accused.

36
Sajan Abhraham v State of Kerala, (2001) 6 SCC 69; Karnail Singh v State of Punjab, (2009) 8 SCC 539
37
Noor Aga v. State of Punjab, (2008) 16 SCC 417
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This implies that the court will presume that the accused has such a mental state to proceed
with the prosecution.38

39
(¶40.) It was held in the case of Mohan Lal v. State of Rajasthan, A person who
knowingly has direct physical control over a thing at a given time, the person or persons, then
is called to be in the constructive possession of the contraband substances.

(¶41.) It is humbly submitted before the Hon’ble Court that relationship between Roast
(OPC) and Happy- Day Pvt,Ltd. is a well-established scheme which has been carefully
crafted to facilitate this elaborate form of drug trade between the restaurant and its special
access card holders. Happy-Day Pvt. Ltd., through Roast, the online delivery partner had
created a system through which, the special access card holders when they add their access
number into the app, an option for an add-on is created with their order, called, “Extra-
Greens”.40 It is contented that, “Extra-Greens” was used as a code name to deliver marijuana
to the access card holders.41

(¶42.) It is humbly submitted before the Hon’ble Court that, taking into account procedures
created within Roast for a specific add-on for Happy-Day, shows a clear understanding
between the accused. Therefore, it is humbly submitted before the Hon’ble Court that Roast
did have knowledge of the fact that they are being an intermediary in transport of marijuana
from the restaurant to the special access members.

[4.2] THE INTERMEDIARY CANNOT BE HELD LIABLE AS PER § 79 OF IT ACT,

2000

It is humbly submitted before this Hon’ble Court that § 79(3) of the Information Technology
Act, 2000 prescribes the conditions when an Intermediary is liable for third-party
information.An Intermediary is liable for third-party information, if it conspires or abets or
aids or induces through threats or promises or otherwise to commit an unlawful act. It is
38
Inder Sain v. State of Punjab, AIR 1973 2309
39
(2015) 6 SCC 222; See also, Gunwantlal v. State of M.P., AIR 1972 SC 1756.
40
¶ 7, Moot Proposition.
41
¶ 13, Moot Proposition.
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further contended that in the present case, an unlawful act is being committed as Roast OPC
Pvt Ltd. is aiding in the transport of contraband substances. The Central Bureau of Narcotics
was anonymously informed about the delivery of small packets (20g) of Marijuana to holders
of special access cards under the code name of “Extra Greens” as an add on to the ordered
food from the Happy-Day Restaurant (Bharatpur Branch). This was further verified by the
CBN upon investigation that clearly indicates the commission of the unlawful act.

It is further humbly submitted that in the case of Sanjay Kumar Kedia v Narcotics Control
Bureau42 the petitioner’s plea to escape liability under the old § 79 was rejected by the Court
as the petitioner’s company had actual knowledge of the malafide actions of sale of
‘psychotropic substances’ through their website which violated the NDPS Act, 1985. On this
ground they were not considered to fall within the immunity provision provided under § 79 of

the I.T Act, 2000. Therefore, it is humbly contended that the delivery app of the Roast OPC
Pvt Ltd. included a suspicious feature of mentioning the special access card numbers to get
access to the add on of “Extra Greens” thereby strengthening the anonymous tip regarding the

transport of contraband substance that was received by CBN.43

It is humbly submitted before this Hon’ble Court that in the present case, the Intermediary
concerned that is the Roast OPC Pvt Ltd. cannot be considered to fall under the immunity
provisions under § 79(3) of the I.T Act, 2000 and therefore Jali Singh, director of the said
company has been rightfully convicted under § 20(b)(ii)(B) of the NDPS Act, 1985.44

42
[2010] 1 S.C.R. 555
43
¶ 13, Moot Proposition.
44
§ 20(b)(ii)(B) of Narcotics Drugs Psychotropic Substance Act of 1985, Punishment for contravention in
relation to cannabis plant and cannabis.

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MEMORIAL FOR RESPONDENT
 PRAYER FOR RELIEF

Wherefore, in light of the issues raised, arguments advanced & authorities cited, may this
Hon‘ble Court be pleased:

1)hold that the Petition is not Maintainable before this Hon’ble Court,
2)to declare that there is an absence of arbitrary exercise of discretionary power by the
Central Government,
3)to uphold conviction of the of Prem Chopra and Pinky Chopra.,
4)to uphold the conviction of Jali Singh,
5)to declare Happy-Day Pvt. Ltd. and Roast (OPC) guilty of the offences they were
charged with

&/OR

Pass any other order it may deem fit, in the interest of Justice, Equity & Good Conscience

All of which is most humbly & respectfully submitted

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MEMORIAL FOR RESPONDENT
Place: S/d_____________
Date: 19th November, 2022 COUNSEL FOR THE
RESPONDENT

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