Appellant and Petitioner

[I]
SIR SYED & SURANA & SURANANATIONAL CRIMINAL LAW MOOT COURT COMPETITION, 2018
TABLE OF INDEX
LIST OF ABBREVIATIONS………………………………………………………………….IV
INDEX OF AUTHORITIES……………………………………………………………………V
CASES REFERRED.......................................................................................................................V
BOOKS AND COMMENTARIES..............................................................................................VII
ARTICLES AND JOURNALS...................................................................................................VIII
REPORTS……………………………………………………........……………………........…..IX
LEGAL ACTS AND RULES........................................................................................................IX
INTERNATIONAL INSTRUMENTS………………………………………………………..…IX
LEXICON………………………………………………………………………………………..X
WEBSITES.....................................................................................................................................X
STATEMENT OF JURISDICTION………………………………………………………….XI
STATEMENT OF FACTS ………………..………………………………………………….XII
STATEMENT OF ISSUES…………………………………………………………………XIV
SUMMARY OF ARGUMENTS……………………………………………………………...XV
ARGUMENTS ADVANCED……………………………………………………………………1
1. WHETHER THE SPECIAL COURT IS ERRONEOUS IN FINDING THE ACCUSED IN “CONFLICT
WITH LAW” FOR THE OFFENCES UNDER §§ 20, 21, 23 & 25 OF NARCOTIC DRUGS AND
PSYCHOTROPIC SUBSTANCES ACT, 1985, UNDER §121 OF WINTERFELLIAN PENAL CODE,
MEMORIAL ON BEHALF OF THE APPELLANT & PETITIONER

[II]
1860 AND §§ 20, 39 AND 40 OF UNLAWFUL ACTIVITIES (PREVENTION) ACT, 1967?……...….1
[1.1] THAT THE ACCUSED HAS DISCHARGED THE BURDEN OF PROOF UNDER §35…………………1
[1.1.1] Intention was not malafide..........................................................................................2
[1.2] OTHER EVIDENCES IN FAVOUR OF THE ACCUSED......................................................................4
[1.2.1] Good character of the accused....................................................................................4
[1.2.2] Conduct of the accused...............................................................................................5
[1.2.3] Act of absconding of the accused................................................................................6
[1.2.4] Admissibility of electronic evidence............................................................................6
[1.2.5] Arresting the accused near the border...................................................................8
2. WHETHER THE ARBITRARY PROCEDURE OF ASSESSMENT BY THE JUVENILE JUSTICE BOARD
AND THE DRACONIAN APPROACH OF 2015 AMENDMENT ARE AGAINST THE SPIRIT OF A
WELFARE LEGISLATION AND CONSTITUTIONAL VALUES?............................................................9
[2.1] THAT THE JUVENILE JUSTICE BOARD IS ARBITRARY IN ITS PROCESS OF ASSESSMENT IN CASES
OF HEINOUS CRIMES..........................................................................................................................9
[2.1.1] Arbitrariness of procedure of assessment.................................................................10
[2.1.2] That Child friendly approach is to be followed.........................................................10
[2.1.3.] Discretion for the board to take help from experts..................................................11
[2.2] THAT THE JJ ACT, 2015 HAS ADOPTED DRACONIAN APPROACH IN ADJUDICATING THE
JUVENILES IN CONFLICT WITH LAW AND THE SAME IS AGAINST THE SPIRIT OF A WELFARE
LEGISLATION...................................................................................................................................12

[III]
[2.2.1] Violation of Article 15(3)..........................................................................................12
[2.2.2] Violation of Article 14 for assessment by the board is against the rule of law.........13
[2.2.3] Violation of the right of fair trial under Article 21...................................................14
3. WHETHER THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCE ACT, 1985 IS
UNCONSTITUTIONAL FOR BEING DRACONIAN, ARBITRARY AND AGAINST THE PRESUMPTION OF
INNOCENCE?..................................................................................................................................15
[3.1] THAT THERE IS VIOLATION OF THE CARDINAL PRINCIPLE OF PRESUMPTION OF

INNOCENCE...15
[3.1.1] Reverse onus on the accused.....................................................................................16
[3.1.2] No onus probandi on prosecution.............................................................................17
[3.1.3] Self-Incrimination......................................................................................................18
[3.2] THAT THERE IS NO RATIONALISED SENTENCING

STRUCTURE..................................................20
[3.2.1] Mandatory death penalty under §31-A is not valid...................................................20
[3.2.2] §32-A is not valid......................................................................................................23
[3.3] THAT THE PROVISION FOR BAIL IS DRACONIAN AND

ARBITRARY............................................24
4. WHETHER THE TRIAL OF JUVENILES FOR HEINOUS CRIMES AS ADULTS (SUCH AS UNDER
NDPS ACT) WAS IN VIOLATION OF INTERNATIONAL OBLIGATIONS OF WINTERFELL IN UNITED
NATIONS CONVENTION ON THE RIGHTS OF THE CHILD, BEIJING RULES AND OTHER
INTERNATIONAL INSTRUMENTS FOR IT IS DEVIATING FROM THE NOTIONS OF MODERN
CRIMINAL JURISPRUDENCE OF REHABILITATION OF JUVENILES ?...............................................26

[IV]
[4.1] THAT THERE IS VIOLATION OF THE INTERNATIONAL

INSTRUMENTS.........................................26
[4.2] THAT IT DEVIATES FROM THE PRINCIPLE OF REHABILITATION OF

JUVENILES.........................28
PRAYER………………………………………………………………………………....…..XVII
LIST OF ABBREVIATIONS
ABBREVIATION EXPANSION
§/ §§ Section/ Sctions
¶ Paragraph Number
AIR All India Reporter

[V]
Anr. Anothers
Art. Article
CrPC, 1973 The Code of Criminal Procedure, 1973
ed. Edition
HC High Court
ICCPR International Covenant on Civil and Political Rights
IEA The Indian Evidence Act, 1872
IPC, 1860 The Indian Penal Code, 1860
IT Act Information Technology Act, 2000
JJ Act, 2015 Juvenile Justice (Care and Protection of Children) Act, 2015
NDPS, 1985 Narcotic Drugs and Psychotropic Substance Act, 1985.
p. Page Number
S/d Signed
SC Supreme Court
SCC Supreme Court Cases
UNCRC. United Nations Convention on the Rights of the Child
v. Versus
Vol. Volume
W.P. Writ Petition
WPC, 1860 The Winterfellian Penal Code, 1860

[VI]
INDEX OF AUTHORITIES
CASES REFERRED
1. Abdul Rashid Ibrahim Mansuri v. State of Gujarat, (2000) 2 SCC 513.
2. Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473.
3. Bachan Singh v. State of Punjab, (1980) 2 SCC 684.
4. Bachan Singh v. State of Punjab, (1982) 3 SCC 24.
5. Behram Khurshid Pesikaka v. State of Bombay, (1955) 1 SCR 613.
6. Collr. of Cus. v. Narayani Trading Concern (Pvt.) Ltd., 1995 SCC OnLine Cal 463.
7. Dadu v. State of Maharashatra, (2000) 8 SCC 437.
8. E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555; (1974) 4 SCC.3.
9. Furman v. Georgia, 408 US 238.
10. Habeeb Mohd. v. State of Hyderabad, AIR 1954 SC 51.
11. Hanumant v. State of M.P., AIR 1952 SC 343.
12. Harendra Sarkar v. State of Assam AIR 2008 SC 2467.
13. In Re Kemmler, 136 US 436.
14. In Re Medley 134 US 160.
15. Indian Harm Reduction Network v. Union of India, 2011 SCC OnLine Bom 715.
16. Jayesena v. The Queen, (1970) A.C. 618.
17. Kartar Singh v State of Punjab, (1994) 3 SCC 569.

[VII]
18. Kulwinder Singh and Another v. State of Punjab (2015) 6 SCC 674.
19. M.P. Sharma v. Satish Chandra, AIR 1954 SC 300.
20. Mahant Ram Prakash Dass v. Ramesh Chandra, (1999) 9 SCC 420.
21. Malkiat Singh v. State of Punjab, (1969) 1 SCC 157.
22. Mancini v. Director of Public Prosecutions, (1942) A.C. 1.
23. Maneka Gandhi v. Union Of India, 1978 AIR 597.
24. Matru v. State of U.P., (1971) 2 SCC 75.
25. Megh Singh v. State of Punjab, (2003) 8 SCC 666.
26. Mithu Singh v. State of Punjab, 1983 AIR 473.
27. MohoriBibee v. Dhurmodas Ghose , (1903) 30 IA 114.
28. Nagendra v. King-Emperor, AIR 1924 Cal 476.
29. Nasu Sheikh v. State of Bihar, (1972) 3 SCC 428
30. Nikesh Tarachand Shah v. Union of India, 2017 SCC OnLine SC 1355.
31. Noor Aga v. State of Punjab, (2008) 16 SCC 417.
32. Poonam Lata v. M.L. Wadhawan 2 (1987) 3 SCC 347.
33. Pratap Singh v. State of Jharkhand, (2005) 3 SCC 551.
34. R v. Oakes [1986] 1 SCR 103.
35. R.C. Cooper v. Union of India, [1970] 3 SCR 530:
36. Rattiram v. State of M.P. through Inspector of police, AIR 2012 SC 1485 (1495).
37. S.G. Jaisinghani v. UOI, AIR 1967 SC 1427.
38. Sahodara Devi v. Govt. Of India, (1972) 3 SCC 156.

[VIII]
39. Salil Bali v. Union of India, (2013) 7 SCC 705.
40. Sharad birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116.
41. State (Delhi Admn.) v. V.C. Shukla, AIR 1980 SC 1382.
42. State of Bihar v. Project Uchcha Vidya, Sikshak Sangh, (2006) 2 SCC 545.
43. State of Haryana v. Mohinder Singh (2000) SCC(Cri.) 645.

SIR SYED & SURANA & SURANANATIONAL CRIMINAL LAW MOOT COURT COMPETITION, 2018 [IX]
44. State of Madras v. A. Vaidyanatha Iyer, AIR 1958 SC 61.
45. State of U.P. v. Naresh and Ors., (2001) 4 SCC 324.
46. State of U.P. v. Ravindra Prakash Mittal, AIR 1992 SC 2045.
47. Subramaniyam Swamy v. Raju, (2014) 8 SCC 390.
48. Sunil Batra v. Delhi Administration 1980 AIR 1579.
49. Union of India & Another v. Sanjeev V. Deshpande (2014) 13 SCC 1.
50. Union of India v. Kuldip Singh, (2004 ) 2 SCC 590.
51. United States v. Anthony Salerno & Vincent Cafaro, 481 US 739 (1987).
52. V. D. Jhingan v. State of Uttar Pradesh AIR 1966 SC 1762.
53. Woolmington v. Director of Public Prosecutions, (1935) A.C. 432.
54. Zahira Sheikh v. State of Gujarat, (2006) 4 SCC 158.
BOOKS AND COMMENTARIES
1. ANDREW ASHWORTH, PRINCIPLES OF CRIMINAL LAW (2009).
2. ARVIND P DATAR,COMMENTARY ON THE CONSTITUTION OF INDIA (2d ed. 2010).
3. BATUK LAL, LAW OF EVIDENCE(19th ed. 2011).
4. K D GAUR, CRIMINAL LAW: CASES AND MATERIAL (5th ed. 2008).
5. K.D.GAUR, INDIAN PENAL CODE (12th ed. 2014).
6. K.N.PILLAI, GENERAL PRINCIPLES OF CRIMINAL LAW (1st ed. 2003).
7. M P JAIN, INDIAN CONSTITUTIONAL LAW (7th ed. 2014).
8. M.A.KHAN, COMMENTARIES ON THE INDIAN PENAL CODE (2002).
9. NILIMA BHADBHADE, POLLOK & MULLA THE INDIAN CONTRACT AND SPECIFIC RELIEF

[X]
ACT (14th ed. 2016).
10. PSA PILLAI, CRIMINAL LAW (12TH ED. 2016).
11. R A NELSON’S, INDIAN PENAL CODE (10th ed. 2008).
12. RATANLAL&DHIRAJLAL, CRIMINAL PROCEDURE CODE (2d ed. 2015).
13. RATANLALDHIRAJLAL , LAW OF EVIDENCE, (23d ed. 2011) .
14. RATANLALDHIRAJLAL, INDIAN PENAL CODE (34th ed. 2014).
15. S C SARKAR, THE CODE OF CRIMINAL PROCEDURE (10th ed. 2012).
16. S K SARAVARIA, INDIAN PENAL CODE (10th Ed. 2008).
17. SURENDRA MALIK & SUDEEP MALIK, SUPREME COURT ON NARCOTICS AND DRUGS (2d ed.
2016).
ARTICLES AND JOURNALS
1. Anthony M Platt, The child savers: The invention of delinquency 137-172 (University of
Chicago Press, Chicago, 1977).
2. B.B. Pande, Stilling the Turbulent Juvenile Justice Waters, (2013) 9 SCC J-25.
3. Bonnie & Scott, The Teenage Brain: Adolescent Research and the Law‘, CURRENT
DIRECTIONS IN PSYCHOLOGICAL SCIENCE 161 (2013).
4. Byron M. Sheldrick, Shifting Burdens and Required Inferences: The Constitutionality of
Reverse Onus Clauses, 44(2) U. TORONTO FAC. L. REV. 181-182 (1986).
5. Colin Tapper, Cross and Tapper on Evidence 156-158 (London: Butterworths, 1995).

SIR SYED & SURANA & SURANANATIONAL CRIMINAL LAW MOOT COURT COMPETITION, 2018 [XI]
6. Gauri Pillai & Shrikrishna Upadhyay, Juvenile Maturity and heinous crimes: A re-look at
the juvenile justice policy in India.
7. Rehabilitation of Children in Conflict with the Law Possibilities and Opportunities.
8. Victor Tadros & Stephen Tierney, The Presumption of Innocence and the Human Rights
Act, 67(3) MOD. L. REV. 418 (2004).
9. Victor Tadros & Stephen Tierney, The Presumption ofInnocence and the Human Rights
Act, 67(3) MOD. L. REV. 402, 426-427 (2004).
REPORTS
1. GOVT. OF INDIA, LAW COMMISSION OF INDIA, NARCOTIC DRUGS AND PSYCHOTROPIC
SUBSTANCES ACT, 1985 (ACT NO. 61 OF 1985), Report No. 155 (July, 1997).
LEGAL ACTS AND RULES
1.THE CONSTITUTION OF INDIA, 1950.
2.THE CRIMINAL PROCEDURE CODE, 1973.
3.THE DRUGS AND COSMETIC ACT, 1940.
4.THE DRUGS AND COSMETIC RULES, 1940.
5.THE INDIAN EVIDENCE ACT, 1872.
6.THE INDIAN PENAL CODE, 1860.
7.THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHI.LDREN) ACT, 2015.
8.THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985.
9.THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES RULES, 1985.

[XII]
10. THE UNLAWFUL ACTIVITIES (PREVENTION) ACT, 1967.
INTERNATIONAL INSTRUMENTS
1. Committee on the Rights of the Child, General Comment No. 10 (2007).
2. International Covenant on Civil and Political Rights (ICCPR), 1966.
3. International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966.
4. Single Convention on Narcotic Drugs, Mar. 30, 1961.
5. United Nations Convention on the Rights of the Child (UNCRC), Nov. 20, 1989.
6. United Nations Standard Minimum Rules for the Administration of Juvenile Justice
(Beijing Rules), Nov. 29, 1985, UN GAOR A/RES/40/33.
7. Universal Declaration of Human Rights (UDHR), Dec. 10, 1948.
LEXICON
1. GARNER, BLACK’S LAW DICTIONARY (9th ed. 1990).
WEBSITES
1. http://www.lexisnexis.com/in/legal
2. https://www.scconline.co.in/
3. http://www.judis.nic.in
4. www.jstor.org
5. http://www.heinonline.org

SIR SYED & SURANA & SURANANATIONAL CRIMINAL LAW MOOT COURT COMPETITION, 2018 [XIII]
STATEMENT OF JURISDICTION
Criminal Appeal No._______ of 2018
The Appellant has approached the Hon’ble High Court of Stark Pradesh, in the matter of Shaam
Savera Angel v. The State, under Section 101(5) of the Juvenile Justice (Care and Protection of
Children) Act, 2015.
W.P. No._________ of 2018
The Petitioner has approached the Hon’ble High Court of Stark Pradesh, in the matter of Ajeevan
Medical Research Trust v. Union of Winterfell, under Article 226 of the Constitution of
Winterfell, 1950.

[XIV]
All of which is respectfully submitted
STATEMENT OF FACTS
1. Shaam Savera Angel is a 17 year old girl,leader of Manav Cult, with Ten Million followers. Her
cult received donations in millions of Winterfellian Dollars, out of which 80 million Winterfellian
Dollars were used for Drug Rehabilitation Centers (Nasha Mukti Kendra), in the financial year
2015. As per SSA, she holds no possession and has no means of income except what is selflessly
donated to her and anyone can check wealth of Manav Cult which is an open affair. The cult was
involved in developing a medicine NZT-CANCER, as an alternative to chemotherapy.
2. One day, Mr. Jendri Singh, driver of SSA told media that SSA had been doing illegal activities in
the veil of a spiritual activities but he was not certain about the nature of such activities. After this,
on 2nd January, 2016 FIR was lodged against SSA for illicit activities with Republic of Meereen
and on 28th January I.O., Mr. Jamie Sharma, raided Manav Cult properties but could not find

SIR SYED & SURANA & SURANANATIONAL CRIMINAL LAW MOOT COURT COMPETITION, 2018 [XV]
anything incriminating but charitable food and clothes were found in the premises. Following this,
on 29th January SSA made a public statement where she said it was an attempt by her political
enemies.
3. Further, on 9th February around 11.25 p.m, IO raided three pharmaceutical research units of NZT-
CANCER. The team seized total of 190 kilograms of Cannabis. The drug was alleged to be
trafficked from Republic of Meereen by a Terrorist group, Winterfell Liberators. The panchnama
was made around 5:15 a.m. in the morning, before four witnesses. One of the witnesses later turned
hostile. SSA absconded and could not be arrested that night.
4. Mr. Raamsay Naryan, a staff member was arrested and during the investigation he said that all the
products were used for medicinal purpose and research to cure cancer.

S [XVI]
5. Videos featured SSA talking to members of Winterfell Liberators who had boxes of Illegal drugs
along with them went viral. Various media channels ran forensic test on the video claiming that it
wasn’t doctored.
6. Adi Manav Cult, who supported the separatist movements in the state of Winterfell, was against
Manav Cult. On February 26, 2016, Mr. Birpaal Singh, Adi-Manav Cult’s chief, lodged another
FIR against SSA for carrying out racket of illegal drugs and aiding terrorists and threatening the
security and integrity of Winterfell. He declared that SSA was a terrorist and a threat to
Winterfellian national security and put out a bounty of 10 million Winterfellian Dollars on her
head.
7. On 3rd March 2016, SSA was arrested by National Investigation Agency near the border of
Meereen and Winterfell with 20 million Winterfellian dollar, it was believed she was about to cross
the border. Following which Winterfell Liberators made an official statement on the arrest of SSA
that if any harm is done to SSA, Winterfell will face their wrath.
8. SSA was brought to trial under the charges for various crimes under sections 20, 21, 23 and 25 of
NDPS, 1985, section 121 of WPC, 1860 and sections 20, 39 and 40 of Unlawful Activities
(Prevention) Act, 1967 before the Special Court. She was found in “conflict with law” by the
Special Court on all the above mentioned counts.
9. SSA has appealed in the High Court of Stark-Pradesh against the decision of the Special Court,
and also challenged 2015 Amendment with special mention to the arbitrary procedure of
assessment by board. An NGO, Ajeevan Medical Research Trust also filed a (PIL) before the
Hon’ble High Court of Stark-Pradesh challenging the constitutional validity of the Narcotic

[XVII]
Drugs and Psychotropic Substances Act, 1985.
10. The matter is fixed to be adjudicated on 24th February, 2018.
SIR YED & SURANA & SURANANATIONAL CRIMINAL LAW MOOT COURT COMPETITION, 2018
STATEMENT OF ISSUE
-1-
WHETHER THE SPECIAL COURT IS ERRONEOUS IN FINDING THE ACCUSED IN “CONFLICT WITH
LAW” FOR THE OFFENCES UNDER §§ 20, 21, 23 & 25 OF NARCOTIC DRUGS AND PSYCHOTROPIC
SUBSTANCES ACT, 1985, UNDER §121 OF WINTERFELLIAN PENAL CODE, 1860 AND §§ 20, 39
AND 40 OF UNLAWFUL ACTIVITIES (PREVENTION) ACT, 1967?
-2-
WHETHER THE ARBITRARY PROCEDURE OF ASSESSMENT BY THE JUVENILE JUSTICE BOARD
AND THE DRACONIAN APPROACH OF 2015 AMENDMENT ARE AGAINST THE SPIRIT OF A WELFARE
LEGISLATION AND CONSTITUTIONAL VALUES?
-3-
WHETHER THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCE ACT, 1985 IS
INNOCENCE?

S [XVIII]
-4-
WHETHER THE TRIAL OF JUVENILES FOR HEINOUS CRIMES AS ADULTS (SUCH AS UNDER NDPS
ACT) WAS IN VIOLATION OF INTERNATIONAL OBLIGATIONS OF WINTERFELL IN UNITED
NATIONS CONVENTION ON THE RIGHTS OF THE CHILD, BEIJING RULES AND OTHER
CRIMINAL JURISPRUDENCE OF REHABILITATION OF JUVENILES ?
SUMMARY OF ARGUMENT
ISSUE 1: WHETHER THE SPECIAL COURT IS ERRONEOUS IN FINDING THE ACCUSED IN
“CONFLICT WITH LAW” FOR THE OFFENCES UNDER §§ 20, 21, 23 & 25 OF NARCOTIC DRUGS
AND PSYCHOTROPIC SUBSTANCES ACT, 1985, UNDER §121 OF WINTERFELLIAN PENAL CODE,
1860 AND §§ 20, 39 AND 40 OF UNLAWFUL ACTIVITIES (PREVENTION) ACT, 1967.
It is humbly submitted before the Hon’ble High Court of Stark Pradesh that the Special Court is
erroneous in finding the accused in conflict with law because the accused has discharged the
burden of proof against her for the offences under §35of NDPS Act as she does not have any
malafide intention. Also, her good character and conduct remain unquestioned as neither the video
is admissible in the Court nor her act of absconding gives a conclusive proof of guilt. Therefore,
in the light of these other evidences which are in favour of the accused, prosecution case remains

[XIX]
unproved beyond reasonable ground and so the accused should not be convicted for the offences
pitted against her under §§20, 21, 23 and 25 of NDPS Act, §121 of WPC, 1860 and §§ 20, 39 and
40 of Unlawful Activities (Prevention) Act, 1967.
ISSUE 2: WHETHER THE ARBITRARY PROCEDURE OF ASSESSMENT BY THE JUVENILE JUSTICE
BOARD AND THE DRACONIAN APPROACH OF 2015 AMENDMENT ARE AGAINST THE SPIRIT OF A
WELFARE LEGISLATION AND CONSTITUTIONAL VALUES?
It is contended before the Hon’ble High Court that the Juvenile Justice (Care and Protection of
Children) Act, 2015 has given arbitrary power to the juvenile justice board in its assessment
process in case heinous crime because it is not only violative of Article 14,but also devoid of child
friendly approach. also that the JJ Act has adopted draconian approach in adjudicating the juveniles
in conflict with law and the same is against the spirit of this welfare legislation, and it
SIR YED & SURANA & SURANANATIONAL CRIMINAL LAW MOOT COURT COMPETITION, 2018
allegedly violates constitutional provisions name, Article 15(3), 21. The counsel has also put forth
that the discretionary help taken by the Board from the experts must be made mandatory.
ISSUE 3: WHETHER THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCE ACT, 1985 IS
INNOCENCE?
It is respectfully submitted forth the Hon’ble High Court of Stark Pradesh that the NDPS Act, 1985
is unconstitutional for being draconian and arbitrary and against the presumption of innocence

S [XX]
because there is reverse onus on the accused under §35, §54 and §66 which not only releases the
prosecution to prove the case beyond reasonable doubt but also leads to self incrimination by the
accused. The irrational punishment mechanism under§31-A, §32-A are ultra vires. Further,
unreasonably strict bail provisions are violative of Article 14 and 21.
ISSUE 4: WHETHER THE TRIAL OF JUVENILES FOR HEINOUS CRIMES AS ADULTS (SUCH AS
UNDER NDPS ACT) WAS IN VIOLATION OF INTERNATIONAL OBLIGATIONS OF WINTERFELL IN
UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD, BEIJING RULES AND OTHER
CRIMINAL JURISPRUDENCE OF REHABILITATION OF JUVENILES ?
It is contended on behalf of the petitioner that the Juvenile Justice (care and protection of
children) Act, 2015 is in violation of the United Nations Convention On The Rights Of The
Child, Beijing rules and other international instruments. Also, the Act deviates from the principle
of the rehabilitation of the juveniles.

SIR SYED & SURANA & SURANANATIONAL CRIMINAL LAW MOOT COURT COMPETITION, 2018 [ 1]
ARGUMENTS ADVANCED
ISSUE 1: WHETHER THE SPECIAL COURT IS ERRONEOUS IN FINDING THE ACCUSED IN
“CONFLICT WITH LAW” FOR THE OFFENCES UNDER §§ 20, 21, 23 & 25 OF NARCOTIC DRUGS
AND PSYCHOTROPIC SUBSTANCES ACT, 1985, UNDER §121 OF WINTERFELLIAN PENAL CODE,
1860 AND §§ 20, 39 AND 40 OF UNLAWFUL ACTIVITIES (PREVENTION) ACT, 1967?
A. It is humbly submitted before the Hon’ble High Court of Stark Pradesh that the Special Court is
erroneous in finding the accused in conflict with law because- the accused has discharged the
burden of proof against her for the offences under NDPS Act, [1.1] there are other evidences in
favour of the accused that do not prove the prosecution case beyond reasonable ground [1.2]
[1.1] THAT THE ACCUSED HAS DISCHARGED THE BURDEN OF PROOF UNDER §35:
B. The burden of proof cast on the accused under §35, NDPS Act, can be discharged through different
modes. One is that he can rely on the materials available in the prosecution evidence. Next in
addition to that is, he can elicit answers from the prosecution witness through crossexamination to
dispel any such doubt. He may adduce other evidence when he is called upon to enter his defence.
In other words, if circumstances appearing in the prosecution case or in the prosecution evidence
are such as to give reasonable assurance to the court that the accused could not have had the
knowledge or the required intention, the burden cast on him under §35 of NDPS Act would stand

discharged even if he has not adduced any other evidence of his own when he is called upon to
enter on his defence.1
C. It is humbly submitted by the counsel that the accused did not have the required mental culpable
state for she did not have the required malafide intention.
[1.1.1] Intention was not malafide:
D. It is one of the general principles of criminal jurisprudence that crime is not committed if the mind
of a person doing the act in question, is innocent.2 It is said that actus non facit reum, nisi mens sit
rea, which means that the intent and act must both concur.3
E. In the present case, the cannabis found in the pharmaceutical research units of NZT- CANCER
was for the medical use and so no trace of cannabis was found in other properties of the Manav
Cult.4 The use of narcotic drugs and psychotropic substances for scientific and medicinal purpose
is indispensable. For the preparation of a number of life saving drugs like morphine, pethadine and
tranquilizers, these drugs and substances are required. India is one of the leading producers of
opium in the world for medicinal and scientific purposes. Due to the use of narcotic drugs and
psychotropic substances for scientific and medicinal purposes, the production of the same cannot
be banned altogether.5 F. The very preamble of the Narcotics Drugs and Psychotropic Substances
Act, 1985 states: “An Act to consolidate and amend the law relating to narcotic drugs,…………..,
1
Abdul Rashid Ibrahim Mansuri v. State of Gujarat, (2000) 2 SCC 513.
2
RATANLAL & DHIRAJLAL, THE LAW OF EVIDENCE viii (24th ed., Lexis Nexis, 2016); Kartar Singh v State of
Punjab, (1994) 3 SCC 569.
3
R. Balakrishna Pillai v. State of Kerela, (2003) 9 SCC 700.
4
Moot Proposition, Page 2, ¶ 7.
5
GOVT. OF INDIA, LAW COMMISSION OF INDIA, NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 (ACT
NO. 61 OF 1985), Report No. 155 (July, 1997), http://lawmin.nic.in/ld/P-
ACT/1985/The%20Narcotic%20Drugs%20and%20Psychotropic%20Substances%20Act,%201985.pdf.

to implement the provisions of the International Convention on Narcotic Drugs and Psychotropic
Substances] and for matters connected therewith.”
G. Under §70 of the NDPS Act, the Central Government and the State Government have to regard
the international conventions while framing any rule. Winterfell is a party to the Single Convention
on Narcotic Drugs, 1961,6 the preamble of which briefly out-lined the importance of effective
measures against abuse of narcotic drugs in the following words: “The parties, concerned with the
health and welfare of mankind,
Recognising that the medical use of narcotic drugs continues to be indispensable for the
relief of pain and suffering and that adequate provision must be made to ensure the
availability of narcotic drugs for such purposes,………”
H. Also, the Directive Principles of the State Policy enshrined in Art. 47 of the Constitution of
Winterfell lays down as under:
“The State shall regard the raising of the level of nutrition and the standard of living of its
people and the improvement of public health as among its primary duties and, in particular,
the state shall endeavour to bring about prohibition of the consumption, except for medicinal
purposes, of intoxicating drinks and of drugs which are injurious to health.”7
I. Apart from the aforementioned enunciation of law, the counsel would like draw focus on the
statement of the Mr. Raamsay Narayan recorded under §161, CrPC,8 that he did not know much
about the alleged drugs but all the products were used for medicinal purpose and research to
6
Single Convention on Narcotic Drugs, pmbl, Mar. 30, 1961.
7
supra note 5, at 2.
8
The Code of Criminal Procedure, No. 2 of 1974.

cure cancer.9 For the corroboration of this statement, the counsel would give emphasis to the fact
that the pharmaceutical department controlled by the accused was developing a medicine
NZT-CANCER, as an alternative to chemotherapy.10 Also, it is pertinent to note that the cannabis
was found only in the pharmaceutical research units of NZT-CANCER11 and not in any other
property of the Manav Cult.12
J. The counsel humbly submits that the accused has no culpable mental state and it is proved beyond
reasonable doubt. Therefore, the accused is protected by the exception of §8(c) of the NDPS, Act
for the cannabis found was only for the medical and scientific purpose which was precisely to
develop a medicine as an alternative to chemotherapy. Hence, the court has wrongly convicted the
accused for the offences under § 20, 21, 23 and 25 of the NDPS Act.
[1.2] OTHER EVIDENCES IN FAVOUR OF THE ACCUSED:
K. The burden of proof is on the appellant for the offences under NDPS Act, but for the other offences,
the onus probandi is on the prosecution and it should be proved beyond reasonable doubt. 13 This
is a complete case of circumstantial evidence; therefore, the prosecution is required to putforth a
conclusive chain of evidence. 14 But, in the instant case, there are evidences in favour of the
accused; therefore her guilt is not proved beyond reasonable doubt.
9
10
11
Moot Proposition, Page 2, ¶ 8, ¶ 9.
12
13
Behram Khurshid Pesikaka v. State of Bombay, (1955) 1 SCR 613.
14
State of U.P. v. Ravindra Prakash Mittal, AIR 1992 SC 2045.

[1.2.1] Good character of the accused:
L. Under the provision of § 53 of the Evidence Act,15 evidence as to the character of an accused is
always relevant in a criminal case because it plays a pivotal role in explaining his conduct and in
judging his innocence or criminality. 16 In the instant case, where the accused has also been
convicted for the offences under §121 of WPC and §§20, 39 & 40 of Unlawful Activities
(Prevention) Act, therefore it is expected from the accused that her state of mind might be to
accelerate the serious issues of drug addiction among youth in Winterfell and act against the
welfare of Witerfell by entering into alliance with the Winterfell Liberators, the terrorist group.
M. But on the other hand, if we analyze the various established facts, it can be inferred that the accused
is a person of good character and would never want to do anything which will hamper the nation.
These facts are as follows:
• The accused had 10 million followers around the world and out of which 8 million followers
are in Stark Pradesh. Moreover she has helped her followers to counter the peril of drug
addiction and has taken a firm stand against Republic of Meereen for its involvement in
sponsoring terrorism and drug trade in Winterfell.
• Besides, she has also allocated 80 million Winterfellian Dollars for the establishment of a Drug
Rehabilitation Centers, out of 100 million Winterfellian Dollar worth donation received in
2015.17
15
The Indian Evidence Act, No. 1 of 1872, §53.
16
Habeeb Mohd. v. State of Hyderabad, AIR 1954 SC 51.
17
Moot Proposition, Page 1, ¶2.

N. All these instances incline the scale in the favour of the accused because the prosecution has failed
to prove its contention beyond reasonable doubt.
[1.2.2] Conduct of the accused:
O. Apart from the good character of the accused, the counsel would like to throw focus on the conduct
of the accused ante commission of the offence.18
• The accused has fearlessly announced in the public that “anyone can check wealth of the
Manav Cult which is an open affair.”19
• Also the cult of the accused was funding a good cause, i.e., research program to cure cancer
and other incurable diseases and in furtherance of this their pharmaceutical unit was developing
a medicine NZT- CANCER, as an alternative to chemotherapy.19
P. All this conduct makes it very evident that the accused was not having guilty state of mind.
[1.2.3] Act of absconding of the accused:
Q. Mere act of absconding of the accused, cannot point towards the guilty mind of the accused. The
counsel would rely on the decision of the Apex Court in the case of Matru v. State of U.P.,20 mere
absconding by itself does not lead to the firm conclusion of the guilty mind. Even an innocent man
may feel the panicky and try to evade an arrest when wrongly suspected of a grave crime such is
the instinct of self-preservation. In the present case, the accused is a juvenile21 and it is very natural
for her to panic and escape to avoid the arrest for the crime which she has not even committed.
18
The Indian Evidence Act, No. 1 of 1872, §8.
19
20
Matru v. State of U.P., (1971) 2 SCC 75.
21

[1.2.4] Admissibility of electronic evidence:
R. In the present case, the video is shown by the media channels in which the accused is talking to
member of Winterfell Liberators who had boxes of illegal drugs along with them,22 could have
been potent evidence against the accused so as to prove her to be a member of the terrorist group
which aims at hampering the national security and integrity. But, it is an electronic record 23
therefore has to fulfill the concomitants of §65-B of IEA.
S. In the case of Anvar P.V. v. P.K. Basheer,24 it was observed that the very admissibility of the
electronic record which is called as computer output, depends on the satisfaction of the four
conditions under §65-B(2) of IEA, enumerated as under:
(i) The electronic record containing the information should have been produced by the computer
during the period over which the same was used regularly to store or process information for
the purposes of any activities regularly carried on over that period by the person having lawful
control over the use of the computer;
(ii) The information of the kind contained in the electronic record or of the kind from which the
information so contained is derived was regularly fed into the computer in the ordinary course
of the said activities;
(iii)During the material part of the said period, the computer was operating properly and even if it
was not operating properly for some time, the break or breaks had not affected either the
electronic record or the accuracy of its contents; and
22
23
Information Technology Act, No. 21 of 2000, § 2(t).
24
Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473.

(iv) The information contained in the electronic record should be a reproduction or derivation from
the information fed into the computer in the ordinary course of the said activity.
T. In the present case neither of the supra mentioned conditions are fulfilled as no evidence is adduced
as to who recorded the video, nor does any witness speak to the veracity of recording, much less
is there any material as to whether any editing was done. Therefore in the present cases no reliance
can be placed on the video released.25
[1.2.5] Arresting the accused near the border:
U. It is humbly contended by the counsel on behalf of the appellant that the fact that the accused
was found near the border of Meereen and Winterfell 26 does not prove anything against the
accused. In the case of Nasu Sheikh v. State of Bihar,27 it was observed that the prosecution was
not able to prove that whether there was any plan of the accused to cross the border and therefore
the conviction of the accused was set aside. In the instant case, it is clearly stated in the fact
sheet that it is believed that she was about to cross the border, but this does not, in any case,
prove that she was confirmed to cross the border.28
V. Therefore, concluding all the arguments, the counsel on behalf of the appellant humbly pleads
before the Hon’ble High Court of Stark Pradesh that from the above circumstances, the accused
had discharged the burden of proof in such a manner as to rebut the presumption envisaged in
§35 of NDPS Act. Also, the prosecution has badly failed to prove the guilt of the accused
25
Mahant Ram Prakash Dass v. Ramesh Chandra, (1999) 9 SCC 420.
26
27
Nasu Sheikh v. State of Bihar, (1972) 3 SCC 428.
28
Malkiat Singh v. State of Punjab, (1969) 1 SCC 157.

beyond reasonable doubt because the chain of evidence has missing links and does not
unequivocally points towards the hypothesis of guilt of the accused.29 Therefore, Shaam
Savera Angel, the accused, should not be convicted for the offences pitted against her under
§§20, 21, 23 and 25 of NDPS Act, §121 of WPC, 1860 and §§ 20, 39 and 40 of Unlawful Activities
(Prevention) Act, 1967.30
ISSUE 2: WHETHER THE ARBITRARY PROCEDURE OF ASSESSMENT BY THE JUVENILE JUSTICE
BOARD AND THE DRACONIAN APPROACH OF 2015 AMENDMENT ARE AGAINST THE SPIRIT OF A
WELFARE LEGISLATION AND CONSTITUTIONAL VALUES?
A. It is contended before the Hon’ble High Court that the Juvenile Justice (Care and Protection of
Children) Act, 2015 has given arbitrary power to the juvenile justice board in its assessment
process which is violative of Article 14, [2.1] and also that the JJ Act has adopted draconian
approach in adjudicating the juveniles in conflict with law and the same is against the spirit of this
welfare legislation, and it allegedly violates constitutional provisions. [2.2]
[2.1] THAT THE JUVENILE JUSTICE BOARD IS ARBITRARY IN ITS PROCESS OF ASSESSMENT IN
CASES OF HEINOUS CRIMES
B. The Appellant humbly submits before the Hon’ble court that the preliminary assessment procedure
used by Juvenile Justice Board in the cases of heinous crime as laid under §15 of JJ Act is arbitrary
29
Sharad birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116; Hanumant v. State of M.P., AIR 1952 SC
343.
30
Abdul, supra note 1, at 1.

in nature. The said Section authorises the board to conduct assessment to ascertain the mental and
physical capacity of the offender, who has allegedly committed such offence, his ability to
understand the consequences of the same and the circumstances under which he is alleged to have
committed the offence, 31 where such a child is or have completed 16 years of age. Once the
assessment by board is completed and it is ascertained that the child is above 16 years of age and
that the accused child has committed the heinous offence, the board
31
Juvenile Justice (Care and Protection of Children) Act, No. 2 of 2016, § 15(1).

may order a trial of the child as an adult, and further transfer the case to the Children’s court having
the jurisdiction.32
C. It is humbly contended on behalf of the Appellant that the board is arbitrary in its procedure,
[2.1.1] and that the same is violative of Article 14 .[2.1.2]
[2.1.1] Arbitrariness of procedure of assessment
D. It is humbly submitted before the Hon’ble court that as per the definition of ‘juvenile’ under the JJ
Act, a juvenile is a child who has not attained 18 years of age33 and the similar definition is used
to define ‘minor’ under various other laws. The Appellant hereby contends before this Hon’ble
court that same child who is not considered to have enough mental and physical capacity to indulge
in the activities like voting, driving, marriage is even considered mentally incapable of signing his
own contracts under the Winterfelln Contract Act, 1872 (under any circumstances), as the Act
declares any agreement made by a minor as void ab initio34 (the same was held by the Apex Court
in the case of MohoriBibee v. Dhurmodas Ghose35), can be assumed to have the mental capacity
to commit the offence or know about it consequences.
[2.1.2] That Child friendly approach is to be followed
E. Further, it is respectfully put-forth before the Hon’ble court, that the preamble of the JJ Act
provides for using child-friendly approach in the adjudication and disposal of matters in the best
interest of children, but, the act of ascertaining the capacity of the juvenile to commit an offence,
32
33
34
NILIMA BHADBHADE, POLLOK & MULLA THE INDIAN CONTRACT AND SPECIFIC RELIEF ACT 284 (14th ed. 2016).
35
MohoriBibee v. Dhurmodas Ghose , (1903) 30 IA 114.

results in establishing a link between the level of maturity of the child and gravity of the offences,
which may overshadow their childhood,36 as they will be pronounced criminal for the act he would
have done without any understanding or under the influence or force of any adult.
F. Hence, when psycho-social maturity or mental capacity cannot be measured or assessed accurately,
it will be a travesty of justice if children alleged to be in conflict with the law are transferred to an
adult criminal court and ultimately sent to an adult prison based on such a flawed assessment, 37
and therefore such an assessment should be declared invalid and provison bestowing such power
to the board should be eliminated from the Act on the ground of unreasonableness. In the case of
Bachan Singh v. State of Punjab,38 the apex court held that wherever there is unreasonableness,
there is a denial of rule of law. Therefore such a law that provides for such an assessment is
violative of Article 14, as if a law is irrational (or unreasonable) it fall foul of Article 14.
G. Moreover, it is respectfully submitted before the Hon’ble High Court that the board is arbitrary in
its process of assessment, because as contended above that it is not possible for anyone to ascertain
the mental capacity of any child/juvenile, then any process conducted by the board is nothing but
the fulfilment of its fancies to punish the child (juvenile) as an adult and this would lead to arbitrary
transfer of cases to the Children’s Court.
36
Gauri Pillai & Shrikrishna Upadhyay, Juvenile Maturity and heinous crimes: A re-look at the juvenile justice
policy in India,. http://docs.manupatra.in/newsline/articles/Upload/0A6F7370-9CF9-4A96-
8E885B8195F5DD83.pdf.
37
Bonnie & Scott, The Teenage Brain: Adolescent Research and the Law‘, CURRENT DIRECTIONS IN
PSYCHOLOGICAL SCIENCE 161 (2013).
38
Bachan Singh v. State of Punjab, (1982) 3 SCC 24.

[2.1.3.] Discretion for the board to take help from experts
H. Also, the JJ Act gives discretion to the board to take assistance from the experienced psychologists
or psycho-social workers or other experts, while such a step should be mandatory
and not be made discretionary by the use of term ‘May.’ In the case of Sahodara Devi v. Govt. Of
India,39 the Supreme Court held that the word ‘may’ is used to grant discretion and not indicate a
mandatory direction. Thus, this may lead to arbitrary decisions by board and such a requirement
should be made mandatory.
[2.2] THAT THE JJ ACT, 2015 HAS ADOPTED DRACONIAN APPROACH IN ADJUDICATING THE
JUVENILES IN CONFLICT WITH LAW AND THE SAME IS AGAINST THE SPIRIT OF A WELFARE
LEGISLATION
I. It is contended before the Hon’ble court that the procedure of treating child in ‘conflict with law’ as
adult is against the spirit of a welfare legislation and violative of Article 15(3), [2.2.1], against the
rule of law [2.2.2] and is unconstitutional under Article 21 as it does not provide fair
trial.[2.2.3]
[2.2.1] Violation of Article 15(3)
J. It is further submitted before the Hon’ble Court that a preamble is considered as the introductory
statement to the statute which explains the basis and objective of the same.40 It is further submitted
before the Hon’ble court that the preamble of the JJ Act, clearly states that the Act is to cater to
39
Sahodara Devi v. Govt. Of India, (1972) 3 SCC 156.
40
GARNER, BLACK’S LAW DICTIONARY (9th ed. 1990).

basic needs of children, through proper care, protection, development, treatment, social re-
integration, by adopting a child-friendly approach in the adjudication and disposal of matters in
the best interest of children. Underlying this philosophy, the basic assumptions were that the
children are vulnerable, innocent and dependent on the adult section of the society. 41 The
legislation by its preamble appears to be welfare legislation, but then same legislation has
draconian approach in adjudicating the child in “conflict with law” as adult, which can hamper the
childhood of the children. The endeavour of the state should be reformative rather than punitive or
worse retributive and therefore steps should be taken towards their reform and reintegration in
society in place of putting them behind the bars. Hence, it is contended before the Hon’ble court
that Act is in violation of Article 15(3) of the Constitution of Winterfell, which empowers state to
make laws in welfare of children and envisages special protection and affirmative action for
woman and children.42
[2.2.2] Violation of Article 14 for assessment by the board is against the rule of law
K. It is humbly submitted before the Hon’ble Court that accurate assessment of ‘mental capacity’ is
impossible and will inevitably lead to arbitrary transfer of cases to Children’s court by the board.
L. It is further submitted that absence of arbitrary power is the first essential of the rule of law upon
which whole constitutional system is based,43 and same has been upheld by Supreme Court in
41
Anthony M Platt, The child savers: The invention of delinquency 137-172 (University of Chicago Press, Chicago,
1977).
42
State of Bihar v. Project Uchcha Vidya, Sikshak Sangh, (2006) 2 SCC 545.
43
S.G. Jaisinghani v. UOI, AIR 1967 SC 1427.

many cases. In E.P. Royappa v. State of Tamil Nadu,44it was held that equality is antithetic to
arbitrariness from a “positivistic point of view”. Equality and arbitrariness are sworn enemies; one
belongs to the rule of law while the other, to the whim and caprice of an absolute monarchy. If an
act is arbitrary, it is unequal both according to political logic and Constitutional law and therefore
violates Article 14. 45 As every form of arbitrariness or irrationality is anathema in our
constitutional scheme and same is violative of Article 14, therefore the procedure of assessment
should be declared unconstitutional on the basis of being arbitrary and unreasonable.
[2.2.3] Violation of the right of fair trial under Article 21
M. It is respectfully put forth before the Hon’ble court that the Right to fair trial in a criminal
prosecution is enshrined in Article 21.46 It is the heart of criminal jurisprudence and, in any way,
an important facet of a democratic polity that is governed by Rule of Law.47Fair trial means a trial
in which bias or prejudice for or against the accused, the witnesses or the cause which is being
tried is eliminated.48 Failure to accord fair hearing either to the accused or the prosecution violates
even minimum standard of due process of law.49
N. It is further submitted before the Hon’ble court that Section 3 of the JJ Act provides for
‘Presumption of Innocence’ to all children who have not attained 18 years of age, but the same
44
E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555; (1974) 4 SCC.3.
45
ARVIND P DATAR, COMMENTARY ON THE CONSTITUTION OF INDIA 63 (2d ed.2010).
46
M P JAIN, INDIAN CONSTITUTIONAL LAW 1133 ( 7th ed. 2014).
47
Rattiram v. State of M.P. through Inspector of police, AIR 2012 SC 1485 (1495)
48
ARVIND, supra note 46, at 13.
49
Zahira Sheikh v. State of Gujarat, (2006) 4 SCC 158.

presumption is transgressed by the Act itself when the authorises the board to ascertain the age,
capacity to commit the offence in the heinous crime and then transfer it to children’s court under
§18(3) of JJ Act.
O. It is humbly contended before the court that the aforesaid section that empowers the board to
transfer cases for adjudication to Children’s court has a pre-requisite that the case that is transferred
to them can only be of a child who has committed heinous crime as per the assessment by the
board. Now, when it is already ascertained that the child is in ‘conflict with law,’ then there are
high chances of biasness towards the presumption of guilt and not towards presumption of
innocence of the child. Further, in the case of Pratap Singh v. State of Jharkhand Right50 to have
the fair trial strictly in terms of the JJ Act which would include procedural safeguards is a
fundamental right of the juvenile. Hence, the counsel on behalf of the Appellant humbly contend
that implications of the procedure above enunciated is in contravention to ‘fair trial’ and thus
violative of Article 21.
P. Therefore, after concluding the arguments, the counsel on behalf of the appellant to uphold the
arbitrary procedure of assessment by the Juvenile Justice Board and the draconian approach of
2015 amendment against the spirit of a welfare legislation and constitutional values.
50
Pratap Singh v. State of Jharkhand, (2005) 3 SCC 551.

ISSUE 3: WHETHER THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCE ACT, 1985 IS
INNOCENCE?
A. It is respectfully submitted forth the Hon’ble High Court of Stark Pradesh that the NDPS Act, 1985
is unconstitutional for being draconian and arbitrary and against the presumption of innocence
because there is reverse onus on the accused [3.1], irrational punishment [3.2], and unreasonably
strict bail provision.[3.3]
[3.1] THAT THERE IS VIOLATION OF THE CARDINAL PRINCIPLE OF PRESUMPTION OF
INNOCENCE:
B. The Winterfelln Judiciary has recognized presumption of innocence under Article 20 and 21 of
the Constitution of Winterfell as a fundamental right of the
accused.51The presumption of innocence, i.e. ‘innocent until proven
guilty’, is perhaps the fundamental principle of procedural fairness in criminal law52
and is inextricably linked to the burden of proof on the prosecution to prove the guilt of the
accused.53 An offence comprises two elements, the specific action and the guilty mind or
dishonest intention which leads up to it. Per contra, NDPS Act, 1985 dispenses with 'dishonest
intention' in the following Sections of the Act:
51
Maneka Gandhi v. Union Of India, 1978 AIR 597.
52
ANDREW ASHWORTH, PRINCIPLES OF CRIMINAL LAW 72 (2009).
53
The Indian Evidence Act, 1872, §101.

(1) §35 direct the court to presume the existence of a culpable mental state for all the offences
under the Act.
(2) §54 say that an offence is to be presumed, if he fails to account satisfactorily for the possession
of any narcotic drug or psychotropic substance or any other incriminating article.
(3) §66 provides for presumption as to documents.
The above Sections stipulate that in any prosecution for an offence under the Act the Court is
mandated to presume against the accused, unless contrary is proven by the accused.
[3.1.1] Reverse onus on the accused:
C. The counsel on behalf of the Appellant contends that the principle of “Reverse Onus” is against
the Article 11(1) of the UDHR 54 and Article 6(1) and 14(2) of the ICCPR,55 to which Winterfell
is a member and it envisages that Presumption of innocence is a human right.56
D. Reverse onus clause in an Act makes the accused a presumptive criminal who needs to prove his
innocence. It dilutes the prosecution's legal burden to the extent that the prosecutor is required to
prove only a minimum threshold, which is the actus reus.57 Based on the minimal amount of proof
adduced, the culpability of the accused is presumed and the burden to establish absence of mens
rea is then shifted to the accused58, any failure to discharge it will result in the conviction of the
accused.59
54
Universal Declaration of Human Rights (UDHR), art. 11(1), Dec. 10, 1948.
55
International Covenant on Civil and Political Rights (ICCPR), Dec. 16, 1966.
56
Harendra Sarkar v. State of Assam AIR 2008 SC 2467; V. D. Jhingan v.. State of Uttar Pradesh AIR 1966 SC
1762.
57
Byron M. Sheldrick, Shifting Burdens and Required Inferences: The Constitutionality of Reverse Onus Clauses,
44(2) U. TORONTO FAC. L. REV. 181-182 (1986).
58
Victor Tadros & Stephen Tierney, The Presumption of Innocence and the Human Rights Act, 67(3) MOD. L. REV.
418 (2004).
59
State of Madras v. A. Vaidyanatha Iyer, AIR 1958 SC 61.

E. The criminal jurisprudence in Winterfell provides that every accused is assumed to be innocent
unless his guilt is proved, subject to the statutory exceptions.60 In Queen v. Oakes,61 it was held
that 'reverse onus” in §8 of the Narcotic Control Act, 1970, violated the presumption of innocence
guaranteed by section 11(d) of the Canadian Charter of Rights and Freedoms as it failed to
rationalise the connection between the basic fact of possession and the presumed fact of possession
for the purpose of trafficking of persons guilty of possession only of narcotic drugs.
F. In Noor Aga v. State of Punjab62 court recognised the need to protect innocent citizens and the
higher degree of certainty needed to secure convictions in serious offences, but failed to realise the
higher likelihood of reverse burdens convicting innocent individuals even when a reasonable doubt
subsists and upheld the constitutionality of reverse burden of proof.
[3.1.2] No onus probandi on prosecution:

G. Since presumption of innocence is the fundamental element of a trial, the legal or ultimate burden
of proof is always on the prosecution to prove the guilt of the accused.63 In criminal jurisprudence,
principle that the prosecution must prove the guilt of the prisoner is part of the common law and
no attempt to whittle it down can be entertained64 and if there is a reasonable doubt, the prisoner
should have the benefit of it.65 At no stage of the trail the accused is under an obligation to prove
his innocence, save in the case of insanity or of a statutory defence, there was no burden laid on
60
State of U.P. v. Naresh and Ors., (2001) 4 SCC 324.
61
R v. Oakes [1986] 1 SCR 103.
62
Noor Aga v. State of Punjab, (2008) 16 SCC 417.
63
The Indian Evidence Act, No. 1 of 1872, § 101; See, Colin Tapper, Cross and Tapper on Evidence 156-158
(London: Butterworths, 1995).
64
Woolmington v. Director of Public Prosecutions, (1935) A.C. 432; State (Delhi Admn.) v. V.C. Shukla, AIR 1980
SC 1382.
65
Mancini v. Director of Public Prosecutions, (1942) A.C. 1 at 11, State (Delhi Admn.) v. V.C. Shukla, AIR 1980
SC 1382.

die prisoner to prove his innocence and that it was sufficient for him to raise a doubt as to his
guilt. 66 Reverse Onus allows the prosecution dictates the structure of the case. Prosecutors
determine not only the charge against the accused but also the sufficiency of evidence required to
prove the actus reus. In addition, prosecution has easier and greater access to investigative
resources than the accused and is, therefore, better equipped to establish guilt than an accused
trying to establish innocence. Therefore, even if he knows that he is innocent, he may not be able
to prove it on a balance of probabilities and the assumed correlation between knowledge of an
element and the ease of proving the same is false.67
[3.1.3] Self-Incrimination:
H. Widening the scope of the provision in the case of M.P. Sharma v. Satish Chandra68 the Supreme
Court held that the right against self-incrimination includes right to remain silent. Per contra, when
the onus probandi is reversed, it creates a situation where the accused, now presumed guilty, must
adduce evidence beyond reasonable doubt to prove his innocence and be granted an acquittal. It
thus violates the right to remain silent of an accused which comes in the ambit of fundamental
rights in the constitution. Compelling the accused to prove the facts constituting is opposed to the
mandate of Article 20(3), amounts to and compels him to be a witness to prove his innocence.
I. §35, 54 and 66 relieves the prosecution to prove the case beyond reasonable doubt and makes the
accused to disprove the prosecution case. To place the entire burden on the accused by NDPS Act
to prove his innocence, therefore, is arbitrary, unjust and unfair infringing upon his right to life
66
Jayesena v. The Queen, (1970) A.C. 618.
67
Victor supra note 59, 426-427.
68
M.P. Sharma v. Satish Chandra, AIR 1954 SC 300.

and unfair and unjust procedure violating the guarantee under the Articles 14 and 21. 69 The
outcome of these sections has been to presume that the accused is guilty merely on the basis of
physical possession and not conscious possession70. Once the prosecution has proved the former,
the possession is presumed to be conscious and the accused bears the burden of proving the
contrary is possession is per se arbitrary, unfair and unconscionable procedure.intention to commit
an offence is sine qua non for the prosecution of an offender. Like, in Megh
Singh v. State of Punjab,71 the accused was convicted because he was unable to rebut the
presumption of conscious possession, which was based solely on the accused being found sitting
on a gunny bag containing poppy husk.
[3.2] THAT THERE IS NO RATIONALISED SENTENCING STRUCTURE:
J. The counsel on behalf of the appellant contends that the Act does not have a rationalised sentencing
structure when compared to other common law countries like Canada and South Africa. §31-A
provides for mandatory death sentence, in the case of a second conviction, is substantively unfair,
unjust and unreasonable [3.2.1]. §32-A provides that no suspension, remission or commutation to
a convict under NDPS [3.2.2].
69
Harendra, supra note 57, at 16.
70
Kulwinder Singh and Another v. State of Punjab (2015) 6 SCC 674.
71
(2003) 8 SCC 666 : AIR 2003 SC 3184.

[3.2.1] Mandatory death penalty under §31-A is not valid:
K. The counsel on behalf of the appellant humbly contends before the Hon’ble Court that §31-A72
provides mandatory death penalty for offence after previous conviction. On the basis of Mithu
Singh case,73 the counsel on behalf of the appellant submits the following arguments:
L. There is no rational justification for making a distinction in the matter of punishment between
persons who have been previously convicted under §§19, 24, 27-A and for the offences involving
commercial quantity, being awarded mandatory death sentence and persons who have been
convicted under the other offence under the Act being awarded with rigorous imprisonment for a
term which may extend to one-half of the maximum term of imprisonment along with fine.
M. Classification bears no nexus with the object of the statute 74 and imposition of a mandatory
sentence of death. And so, death penalty cannot be regarded as proportionate to the offence when
‘life sentence is the rule and death penalty is the exception’76 based upon special reasons.77
N. 7576 There might have been the semblance of some logic to explain such a provision if the intention
of the legislature was to provide for enhanced sentence for the second time being convicted under
same offence but the statute irrespective of motivation and circumstances of the two offences,
72
The Narcotic Drugs and Psychotropic Substances Act, No. 61 of 1985, § 31A.
73
Mithu Singh v. State of Punjab, 1983 AIR 473.
74
Narcotic drug and Psychotropic Substance Act, No. 61 of 1985, pmbl. : “stringent provisions for the control and
regulation of operations relating to narcotic drugs and psychotropic substances”.
75
Bachan, supra note 39, at 11.
76
The Criminal Procedure Code, No. of 1974, §354(3).

prescribes a mandatory sentence of death for the second offence, of say, mere preparation,77, is
arbitrary beyond the bounds of all reason.
O. Moreover, by giving death sentence to the offender, totally rejects the reformation purpose and it
has no additional deterrent effect which life sentence does not possess and it is therefore not
justified by the deterrence theory of punishment. 78 Therefore, death penalty has no rational
penological purpose and it is arbitrary and irrational. In fact, its psychological effect on the prisoner
in the form of Death Row79 is disastrous.
P. Justice Bhagwati in Bachan Singh v. State of Punjab,80 said, “Death penalty does not serve any
social purpose or advance any constitutional value and is totally arbitrary and unreasonable so as
be violative of Articles 14, 19, and 21 of the Constitution.” Also in Indian Harm Reduction
Network v. Union of India,81 § 31-A of the Act is violative of Article 21 of the Constitution of
Winterfell.
Q. It is said that an offence relating to narcotic drugs or psychotropic substance is more heinous
than a culpable homicide because the latter affects only an individual while the former affects
and leaves its deleterious impact on the society, besides shattering the economy of the nation as
well82 but the aforementioned line fails to acknowledge that “Liberty must be controlled in the
77
The Narcotic Drugs and Psychotropic Substances Act, No. 61 of 1985, § 30.
78
79
Furman v. Georgia, 408 US 238; In Re Kemmler, 136 US 436; In Re Medley 134 US 160.
80
81
Indian Harm Reduction Network v. Union of India, 2011 SCC OnLine Bom 715.
82
Union of India v. Kuldip Singh, (2004 ) 2 SCC 590.

interest of the society but the social interest must never be overbearing to justify total deprivation
of individual liberty”83
R. § 31-A read with presumptions under §§ 35 and 54 deprive a particular class of persons of the
opportunity under § 235(2), CrPC to show cause why they should not be sentenced to death and
the Court is relieved from its obligation under § 354(3), CrPC to state the special reasons for
imposing the sentence of death.84 The deprivation of these rights and safeguards which is bound
to result in injustice is harsh, arbitrary and unjust.
S. Equity and good conscience are the hall-marks of justice. A provision of law which deprives the
court of the use of its wise and beneficent discretion in a matter of life and death, without regard
to the circumstances in which the offence was committed and, therefore without regard to the
gravity of the offence, cannot but be regarded as harsh, unjust and unfair.
T. After the decisions in Maneka Gandhi,85 Sunil Batra86 and Bachan Singh,87 it cannot be contended
that it is for the legislature to prescribe the procedure and for the courts to follow it. The courts are
not bound, to apply a fanciful procedure by a blind adherence to the letter of the
law. Just as reasonableness of restrictions88 under is for the courts to determine, whether the
procedure prescribed by a law for depriving a person of his life or liberty is fair, just and
reasonable. With this said, §31-A should be held unconstitutional.
83
Kartar Singh v. State of Punjab, (1994) 3 SCC 569.
84
The Criminal Procedure Code, No. of 1974, §354(3).
85
Maneka supra note 52, at 15.
86
Sunil Batra v. Delhi Administration 1980 AIR 1579.
87
88
R.C. Cooper v. Union of India, [1970] 3 SCR 530.

[3.2.2] §32-A is not valid:
U. The constitutional validity of §32-A of the Narcotic Drugs and Psychotropic Substance Act,
1985 is contended to be unconstitutional on the basis of arguments submitted as follows:
V. The Section is alleged to be arbitrary, discriminatory and violative of Article 14 and 21 of the
Constitution of Winterfell, which creates an unreasonable distinction between the prisoners
convicted under this Act and prisoners convicted under other statutes.
W. There is complete negation of the statutory provisions of §§ 389,432 and 433 of CrPC in the matter
of deciding whether the conviction under the Act can be remitted, suspended or commuted.
Restrictions or limitation on suspension of sentences could be passed. Although grant of parole is
essentially an executive function but it is not a suspension, remission or commutation of sentence89
or substitution to the period of detention90. It is unjust, unfair and violative of Article 21. So it is
unconstitutional to the extent it takes away the right of the court to suspend the sentence of a
convict under the Act (subject to §37 of NDPS).91
X. Had the legislative intention been only to curb Governments’s power under §432 and 433of
CrPC, Parliament instead of using “Notwithstanding anything contained in the Code of Criminal
89
Dadu v. State of Maharashatra, (2000) 8 SCC 437. “parole” means release of a prisoner temporarily for a special
purpose before the expiry of a sentence, on the promise of good behaviour and return to jail”.
90
Poonam Lata v. M.L. Wadhawan 2 (1987) 3 SCC 347, State of Haryana v. Mohinder Singh (2000) SCC(Cri.) 645.
91
Dadu supra note 90.

Procedure, 1973 would have used “Notwithstanding anything contained in Chapter XXXII of the
Code and any other law”, because apart from CrPC Government could achieve it by exercising
constitutional powers namely under Article 72 and 161 of the Constitution of Winterfell.
[3.3] THAT THE PROVISION FOR BAIL IS DRACONIAN AND ARBITRARY:
Y. §37 of the Act stipulates that all the offences punishable under the Act shall be congnizable 92 It
further stipulates93:
Z. No person accused of an offence involved in “commercial quantity” 94 shall be released on bail,
unless the Public Prosecutor is given an opportunity to oppose the application for the bail;95 and
AA. Unless “Court is satisfied that there are reasonable grounds for believing” that the accused is
not guilty of such an offence. Further, the Court is also required to be satisfied that such a person
is not likely to commit any offence while on bail.96
BB. In other words, §37 departs from the long established principle of presumption of innocence
in favour of an accused person until proved otherwise.
CC. Object of bail is to secure the attendance of the accused at the trial, that the proper test to be
applied in the solution of the question whether bail should be granted or refused is whether it is
probable that the party will appear to take his trial and that it is indisputable that bail is not to be
withheld as a punishment97 because grant of bail is the rule and refusal is the exception98. An
92
The Narcotic Drugs and Psychotropic Substances Act, No. 61 of 1985, § 37(1)(a).
93
Union of India & Another v. Sanjeev V. Deshpande (2014) 13 SCC 1.
94
The Narcotic Drugs and Psychotropic Substances Act, No. 61 of 1985, §2(vii)(a).
95
The Narcotic Drugs and Psychotropic Substances Act, No. 61 of 1985, §37(1)(b)(i).
96
The Narcotic Drugs and Psychotropic Substances Act, No. 61 of 1985, §37(1)(b)(ii).
97
Nagendra v. King-Emperor, AIR 1924 Cal 476.
98
Nikesh Tarachand Shah v. Union of India, 2017 SCC OnLine SC 1355.

accused person who enjoys freedom is in a much better position to look after his case and to
properly defend himself than if he were in custody.
DD. In United States v. Anthony Salerno & Vincent Cafaro 99 a provision of the Bail Reform Act
of 1984, which allowed a Federal Court to permit pre-trial detention on the ground that the person
arrested is likely to commit future crimes, 100 had been declared unconstitutional as offending
substantive due process by the United States Court of Appeals for the Second Circuit.
EE. § 45(1) of the Prevention of Money Laundering Act, 2002101 which imposed two conditions
before grant of bail, similar to §37 of Narcotic Drugs and Psychotropic Substance Act,1985 was
held unconstitutional in Nikesh Tarachand Shah v. Union of India.102 On the ground that it is
manifestly arbitrary, discriminatory and violative of the fundamental rights under Article 14 read
with Article 21 of the Constitution.103 Hence, in the light of above precedent §37 of NDPS Act,
1985 should also be held unconstitutional.
FF. Therefore in the light of the above arguments advanced and considering the above enunciation of
law, the Narcotic Drugs and Psychotropic Substance Act, 1985 should be held unconstitutional for
being draconian, arbitrary and against the presumption of innocence.
99
United States v. Anthony Salerno & Vincent Cafaro, 481 US 739 (1987).
100
The Bail Reform Act, 18 U.S.C. § 3142 (1984).
101
Prevention of Money Laundering Act, No. 15 of 2002.
102
Nikesh supra note 99, at 24.
103
Nikesh supra note 99, at 24.

ISSUE 4: WHETHER THE TRIAL OF JUVENILES FOR HEINOUS CRIMES AS ADULTS (SUCH AS
UNDER NDPS ACT) WAS IN VIOLATION OF INTERNATIONAL OBLIGATIONS OF WINTERFELL IN
UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD, BEIJING RULES AND OTHER
INTERNATIONAL INSTRUMENTS FOR IT IS DEVIATING FROM THE NOTIONS OF MODERN CRIMINAL
JURISPRUDENCE OF REHABILITATION OF JUVENILES?
A. The philosophy of Juvenile justice is strongly premised on non-discrimination between different
categories of children, rather than creation of a new category, i.e., “children with criminal
propensities”. 104 It is contended on behalf of the petitioner that the Juvenile Justice (care and
protection of children) Act, 2015 is in violation of the international instruments, [4.1] and that it is
also violative of the principle of the rehabilitation of the juveniles. [4.2]
[4.1] THAT THERE IS VIOLATION OF THE INTERNATIONAL INSTRUMENTS :
B. It is humbly submitted before the Hon’ble Court that treaties create legal rights and duties, and it
is this obligatory aspect that makes them part of International Law. In order to look into the legal
effect of the treaties or conventions entered into by the countries, the basic principle of pacta sunt
servanda has to be borne in mind. The principle means, “Every treaty in force is binding upon the
104
B.B. Pande, Stilling the Turbulent Juvenile Justice Waters, (2013) 9 SCC J-25.

parties to it and must be performed by them in good faith.” The notion of good faith in the
observance of international agreements, and is of course, a fundamental principle of international
law.105
C. In the present cases, Winterfell has ratified (or acceded) to various international instruments
concerning with rights of the juvenile justice systems; like United Nations Convention on the
Rights of the Child, 1992, Convention on the Rights of the Child, the United Nations Standard
Minimum Rules for the Administration of Juvenile Justice, 1985 (the Beijing Rules), the United
Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990), and the
International Covenant on Civil and Political Rights (ICCPR),106 to name a few. D. Also, the
preamble of the 2015 Act states: “AND WHEREAS, the Government of India has acceded on the
11th December, 1992 to the Convention on the Rights of the Child, adopted by the General
Assembly of United Nations, which has prescribed a set of standards to be adhered to by all State
parties in securing the best interest of the child;”
E. It is contended before the Hon’ble Court that a clear inference can be drawn from the supra
statement, that the set of standard laid down in UNCRC, and for that matter in all the other
international instruments ratified or acceded by Winterfell, should be strictly adhered under the
principle of pacta sunt servanda, else it will lead to the violation of the same.
F. Further, it is contended before the Hon’ble Court that the provision for the trial of a juvenile as an
adult has defeated the whole object of the JJ Act, 2015 which is to provide for the care, protection,
treatment, development and rehabilitation of juveniles. The Act being benevolent legislation,
105
Collr. of Cus. v. Narayani Trading Concern (Pvt.) Ltd., 1995 SCC OnLine Cal 463.
106
International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3.

as interpretation must be given which would advance the cause of the legislation, i.e. to give benefit
to the juveniles.107
G. The JJ Act, 2015 in its present form has been enacted in discharge of the obligation of our country
to follow the various international instruments like UNCRC, Beijing Rules, and so on, which
specifically refers to the international law. The international treaties, covenants and conventions
although may not be a part of our municipal law, the same can be referred to and followed by the
courts having regard to the fact that Winterfell a party to the said treaties or convention. 108 In the
case of Pratap Singh v. State of Jharkhand109, the court was of the view
that:
“the principles of international law whenever applicable operate as a statutory implication,

but the legislature in the instant case held itself bound thereby and, thus, did not legislate in
disregard of the constitutional provision or the international law as also in the context of
Articles 20 and 21 of the Constitution. The law has to be understood, therefore, in
accordance with the international law. A contextual meaning to the statute is required to be
assigned having regard to the constitutional as well as international law operating in the
field.”
H. Thus, it is submitted before the Hon’ble Court that the trial of Juveniles for heinous crimes as
Adults (such as under NDPS Act) was in violation of International obligations of Winterfell under
various international instruments.
[4.2] THAT IT DEVIATES FROM THE PRINCIPLE OF REHABILITATION OF JUVENILES:
I. It is humbly submitted before the Hon’ble Court that according to modern criminal
107
Pratap supra note 51, at 15.
108
Id.
109
Id.

jurisprudence, the most effective way to find constructive solutions to involvement of children in
activities that violate a law is to involve children in the process of rehabilitation and not to consider
them as merely ‘trouble makers’ or ‘problem children’ in need of punishment. Recognition of and
respect for their rights as human being and as a child is an important first step in this direction.110
Also, Children in conflict with law should be treated as children in difficult circumstances and the
approach of the juvenile justice system should be aimed at addressing the vulnerabilities of
children and ensuring their rehabilitation.111
J. The petitioner hereby put-forth that even though Winterfell has ratified (or acceded) various
international instruments, yet had failed to incorporate it in its laws. Following are the instances
that are stated in these instruments that do not find its place in the JJ Act, 2015:
• UNCRC:112 The Convention has greatly emphasized on opting for rehabilitative measures
like working for the best interest of the child,113 non-discrimination on any basis,114 defining
the child as a person below 18 years of age.115 Articles 23(3) and (4) and Article 24 of the
Convention specifically deal with the rehabilitative measures for the juveniles.
110
Rehabilitation of Children in Conflict with the Law Possibilities and Opportunities,
http://www.wcd.nic.in/sites/default/files/SOP%20ON%20REHABILITATION%20OF%20CHILDREN%20IN%20
CONFLICT%20WITH%20THE%20LAW_0_0.pdf.
111
Id.
112
United Nations Convention on the Rights of the Child (UNCRC), Nov. 20, 1989.
113
United Nations Convention on the Rights of the Child (UNCRC), art.3, Nov. 20, 1989.
114
115

• Committee on the Rights of the Child: In its General Comment No. 10, it notes that “the
protection of the best interests of the child means, the States must give way to rehabilitation
and restorative justice objectives in dealing with child offenders”.116
• Beijing Rules:117 Rule 24 emphasizes the importance of providing requisite facilities,
services and other necessary assistance as may further the best interests of the juvenile
throughout the rehabilitative process.
• ICCPR:118 Article 14(4) states that in the case of juvenile persons, the procedure shall be
such as will take account of their age and the desirability of promoting their rehabilitation.
K. Also, it is pertinent to note that in most of these international instruments, it is contemplated that
the Minimum Age of Criminal Responsibility should be kept near to 18 so that it not too low.119
But per contra, in Winterfell, the impugned amendment has shifted MACR to 16 years in not in
consonance with the rehabilitation principle. Moreover, in the case of Salil Bali v. Union of
India,120 it was observed by the Supreme Court that the age of eighteen years has been fixed on
the account the understanding of experts in psychology and behavioral patterns that till such an
age the children in conflict with law could still be redeemed and restored to mainstream society,
instead of becoming hardened criminals in future. Therefore, in this light, it can be inferred that
116
Committee on the Rights of the Child, General Comment No. 10 (2007), ¶ 10.
117
United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules), Nov. 29,
1985, UN GAOR A/RES/40/33.
118
International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3.
119
United Nations Convention on the Rights of the Child (UNCRC), art.1, Nov. 20, 1989; United Nations Standard
Minimum Rules for the Administration of Juvenile Justice (Beijing Rules), Rule 4.1., Nov. 29, 1985, UN GAOR
A/RES/40/33; See, Subramaniyam Swamy v. Raju, (2014) 8 SCC 390.
120
Salil Bali v. Union of India, (2013) 7 SCC 705.

the impugned provision has created discrimination between the MACR121 i.e. 16 years in case of
heinous crime and the maximum age of majority. Also, this provision is a regressive step and
therefore, deviating from the notions of modern criminal jurisprudence of rehabilitation of
juveniles.
L. Therefore, in light of the above state arguments, the counsel submits that there is clear violation of
the International Instruments because there is a deviation from the notions of modern criminal
jurisprudence of rehabilitation of juveniles.
121
United Nations Convention on the Rights of the Child (UNCRC), art.40(3), Nov. 20, 1989.

SIR SYED & SURANA & SURANANATIONAL CRIMINAL LAW MOOT COURT COMPETITION, 2018 [XVII]
PRAYER
Therefore in the light of the facts stated, arguments advanced and authorities cited, it is prayed on
behalf of the appellant, that this Hon’ble Court may be pleased to adjudicate and declare
that:
• The decision of conviction by the Special Court should be set aside.
• The Juvenile Justice Board is arbitrary in its procedure of assessment and the 2015
Amendment is against the spirit of welfare legislation and constitutional values.
It is prayed on behalf of the petitioner, that this Hon’ble Court may be pleased to adjudicate and
declare that:
• The Narcotic Drugs and Psychotropic Substances Act, 1985 is unconstitutional.
• The trial of Juveniles for heinous crimes as adults is in violation of UNCRC, Beijing
Rules and other International Instruments.
And pass any other appropriate order as the Hon’ble Court may deem fit in the interest of equity,
justice and good conscience.
And for this act of Kindness, the Appellant & Petitioner as in duty bound, shall forever pray.
Respectfully Submitted

Sd/-
Counsel for the Appellant & Petitioner

Appellant and Petitioner

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[I]

BOOKS AND COMMENTARIES..............................................................................................VII

ARTICLES AND JOURNALS...................................................................................................VIII

LEGAL ACTS AND RULES........................................................................................................IX

STATEMENT OF FACTS ………………..………………………………………………….XII

1. WHETHER THE SPECIAL COURT IS ERRONEOUS IN FINDING THE ACCUSED IN “CONFLICT

PSYCHOTROPIC SUBSTANCES ACT, 1985, UNDER §121 OF WINTERFELLIAN PENAL CODE,

MEMORIAL ON BEHALF OF THE APPELLANT & PETITIONER

1860 AND §§ 20, 39 AND 40 OF UNLAWFUL ACTIVITIES (PREVENTION) ACT, 1967?……...….1

[1.1.1] Intention was not malafide..........................................................................................2

[1.2] OTHER EVIDENCES IN FAVOUR OF THE ACCUSED......................................................................4

[1.2.1] Good character of the accused....................................................................................4

[1.2.2] Conduct of the accused...............................................................................................5

[1.2.3] Act of absconding of the accused................................................................................6

[1.2.4] Admissibility of electronic evidence............................................................................6

[1.2.5] Arresting the accused near the border...................................................................8

2. WHETHER THE ARBITRARY PROCEDURE OF ASSESSMENT BY THE JUVENILE JUSTICE BOARD

WELFARE LEGISLATION AND CONSTITUTIONAL VALUES?............................................................9

[2.1.1] Arbitrariness of procedure of assessment.................................................................10

[2.1.2] That Child friendly approach is to be followed.........................................................10

[2.1.3.] Discretion for the board to take help from experts..................................................11

MEMORIAL ON BEHALF OF THE APPELLANT & PETITIONER

[2.2.1] Violation of Article 15(3)..........................................................................................12

[2.2.3] Violation of the right of fair trial under Article 21...................................................14

3. WHETHER THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCE ACT, 1985 IS

UNCONSTITUTIONAL FOR BEING DRACONIAN, ARBITRARY AND AGAINST THE PRESUMPTION OF

[3.1] THAT THERE IS VIOLATION OF THE CARDINAL PRINCIPLE OF PRESUMPTION OF

[3.1.1] Reverse onus on the accused.....................................................................................16

[3.1.2] No onus probandi on prosecution.............................................................................17

[3.2] THAT THERE IS NO RATIONALISED SENTENCING

[3.2.1] Mandatory death penalty under §31-A is not valid...................................................20

[3.2.2] §32-A is not valid......................................................................................................23

[3.3] THAT THE PROVISION FOR BAIL IS DRACONIAN AND

NDPS ACT) WAS IN VIOLATION OF INTERNATIONAL OBLIGATIONS OF WINTERFELL IN UNITED

INTERNATIONAL INSTRUMENTS FOR IT IS DEVIATING FROM THE NOTIONS OF MODERN

CRIMINAL JURISPRUDENCE OF REHABILITATION OF JUVENILES ?...............................................26

MEMORIAL ON BEHALF OF THE APPELLANT & PETITIONER

[4.1] THAT THERE IS VIOLATION OF THE INTERNATIONAL

[4.2] THAT IT DEVIATES FROM THE PRINCIPLE OF REHABILITATION OF

AIR All India Reporter

MEMORIAL ON BEHALF OF THE APPELLANT & PETITIONER

CrPC, 1973 The Code of Criminal Procedure, 1973

ICCPR International Covenant on Civil and Political Rights

IEA The Indian Evidence Act, 1872

IPC, 1860 The Indian Penal Code, 1860

IT Act Information Technology Act, 2000

NDPS, 1985 Narcotic Drugs and Psychotropic Substance Act, 1985.

SCC Supreme Court Cases

UNCRC. United Nations Convention on the Rights of the Child

W.P. Writ Petition

WPC, 1860 The Winterfellian Penal Code, 1860

MEMORIAL ON BEHALF OF THE APPELLANT & PETITIONER

1. Abdul Rashid Ibrahim Mansuri v. State of Gujarat, (2000) 2 SCC 513.

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

3. Bachan Singh v. State of Punjab, (1980) 2 SCC 684.

4. Bachan Singh v. State of Punjab, (1982) 3 SCC 24.

5. Behram Khurshid Pesikaka v. State of Bombay, (1955) 1 SCR 613.

7. Dadu v. State of Maharashatra, (2000) 8 SCC 437.

9. Furman v. Georgia, 408 US 238.

10. Habeeb Mohd. v. State of Hyderabad, AIR 1954 SC 51.

11. Hanumant v. State of M.P., AIR 1952 SC 343.

12. Harendra Sarkar v. State of Assam AIR 2008 SC 2467.

13. In Re Kemmler, 136 US 436.

14. In Re Medley 134 US 160.