MEMORIAL ON BEHALF OF APPELLANT

Sir Syed & Surana & Surana

National Criminal Law Moot Court Competition,2018

Before the Hon’ble High Court of Stark Pradesh

SHAAM SAVERA ANGEL

………… (Appellant)

V.

THE STATE
………..(Respondent)

PETIITON INVOKED UNDER SECTION-101(5) OF THE

JUVENILE JUSTICE (CARE AND PROTECTION OF
CHILDREN) ACT,2015

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MEMORIAL ON BEHALF OF APPELLANT

Table Of Contents

1.Statement of Jurisdiction………………………………………………… 3
2.Statement Of Facts………………………………………………………...4
3.Arguments Advanced……………………………………………………...7
3.1 The registration of FIR against appellant on the basis of vague
allegation………………………………………………………………………7
3.2There exists serious non-compliance of the provisions of Sec-100 and
165,CrPC………………………………………………………………………8
3.3There exists unnecessary delay in investigation and the accused is
denied fair trial……………………………………………………………….10
4.Prayer…………………………………………………………………….....12

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MEMORIAL ON BEHALF OF APPELLANT

STATEMENT OF JURISDICTION
The Appellant has approached the Hon’ble High Court Of Stark- Pradesh under the Section-
101(5) of the Juvenile Justice (Care and Protection of Children) Act,2015 which is herein as
under:

Section 101.Appeals

1. Subject to the provisions of this Act, any person aggrieved by an order made by the
Committee or the Board under this Act may, within thirty days from the date of such order,
prefer an appeal to the Children’s Court, except for decisions by the Committee related to
Foster Care and Sponsorship After Care for which the appeal shall lie with the District
Magistrate:

Provided that the Court of Sessions, or the District Magistrate, as the case may be, may
entertain the appeal after the expiry of the said period of thirty days, if it is satisfied that the
appellant was prevented by sufficient cause from filing the appeal in time and such appeal shall
be decided within a period of thirty days.

2. An appeal shall lie against an order of the Board passed after making the preliminary
assessment into a heinous offence under section 15 of the Act, before the Court of Sessions and
the Court may, while deciding the appeal, take the assistance of experienced psychologists and
medical specialists other than those whose assistance has been obtained by the Board in
passing the order under the said section.
3. No appeal shall lie from,—
a. any order of acquittal made by the Board in respect of a child alleged to have committed
an offence other than the heinous offence by a child who has completed or is above the age of
sixteen years; or
b. any order made by a Committee in respect of finding that a person is not a child in need
of care and protection.
4. No second appeal shall lie from any order of the Court of Session, passed in appeal under
this section.
5. Any person aggrieved by an order of the Children’s Court may file an appeal before the
High Court in accordance with the procedure specified in the Code of Criminal Procedure,
1973.

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MEMORIAL ON BEHALF OF APPELLANT

STATEMENT OF FACTS
1. Winterfell is a country situated in the Northern kingdom of Westeros. It has one of the
richest history and heritage. The most serious problem which Winterfell faces is that of rapid
increase in violence due to drug addiction. Stark-Pradesh which is one of the 29 states of
Winterfell has the most serious situation of increasing addiction of drugs among the youth
and the new generation.. It was alleged that Republic of Meereen sponsored terrorism and
drug-trade in Winterfell, especially in Stark-Pradesh, as it borders Republic of Meereen.

2. Shaam Savera Angel (fondly called SSA), a well-known God woman and leader of Manav
Cult, is a philanthropist believing in the idea of advancing humanitarianism and multi-
cultural.. She is a young woman with good public image having Ten Million followers
around the world. She tutored her followers to fight the menace of drug addiction and in turn
fight the alleged involvement of Republic of Meereen. In the financial year 2015, Manav Cult
received a total of 100 million Winterfellian Dollars as monetary donations, out of which
SSA, allocated 80 million Winterfellian Dollars for Drug Rehabilitation Centers.

3. A shrine belonging to Manav Cult was situated in the state of Stark-Pradesh which was no
less than a five-star hotel and had all the facilities which made it almost self-sufficient. SSA
once publicly said that 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.
Recently it was heard that their pharmaceutical department was developing a medicine NZT-
CANCER, as an alternative to chemotherapy. The ideas and campaigns of Manav Cult were
vehemently opposed by a group named Adi-Manav Cult. Adi-Manav Cult believed that the
ideas of SSA and her cult were propagating a pseudo-science and she was befooling people
by her antics. It is to be noted that Adi-Manav Cult once supported the separatist movements
in the state of Winterfell. Adi-Manav Cult has 7.8 million followers around the world out of
which 7.5 million followers reside in Stark-Pradesh.
4.Mr. Jendri Singh, driver of SSA came out infront of media and revealed 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. Due to media uproar, an FIR was lodged against SSA for illicit
activities with Republic of Meereen on 2nd January 2016. Investigating officer, Mr. Jamie
Sharma raided Manav Cult properties on 28th January 2016. However, the search teams

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could not find anything incriminating but charitable food and clothes were found in the
premises.

5. SSA made a public statement on 29th January 2016 where she said it was an attempt by
her political enemies and drug mafias to implicate her for the crimes which she herself stood
against. She also said that Mr. Jamie Sharma was sponsored by Republic of Meereen and
they were after her as she was a hindrance to their drug trade.

6. Mr. Jamie Sharma raided without warrants on the night of 9th February 2016 around 11.25
p.m. on the pharmaceutical research unit of NZT-CANCER. The team seized 90 kilograms of
Cannabis in the factory’s entrance courtyard in a truck. It was alleged that drugs were
trafficked from Republic of Meereen by a Terrorist group, Winterfell Liberators, a declared
terrorist organisation in Winterfell seeking liberation of a territorial part of Stark-Pradesh.
The panchnama was made around 5:15 a.m. in the morning, the two witnesses were Mr. Peter
Bailesh and Mr. Ashok Solemon, (considered staunch supporters of Adi-Manav Cult), as they
were the incharge of the adjacent Adi-Manav Cult headquarters in the vicinity of NZT unit.
The other Pancha Mr. Addharth Singh was a local resident, who once went to prison for a
minor theft crime. Mr.Khal Singh was the fourth witness to the panchnama, who was a local
resident and a government employee. Within two kilometres the other two facilities of NZT-
Cancer Units were also raided on the same night and 50 kilograms of cannabis were seized at
each facility. One of the staff members of Pharmaceutical unit, Mr. Raamsay Naryan, was
arrested from the site and during the investigation he said that he did not know much about
the alleged drugs but all the products were used for medicinal purpose and research to cure
cancer .On the same night search raids were done to arrest SSA, however, she absconded and
could not be arrested that night. In a public statement, Manav Cult clarified that SSA is not
guilty and didn’t commit any crime, and cult has full faith in the institution of judiciary.

7. During this period, videos showing SSA surfaced over media channels and were primarily
shown by Winterfell Samachar. Videos featured SSA talking to members of Winterfell
Liberators who had boxes of Illegal drugs along with them. The video was alleged to be
released by a group of hackers known as ‘Anonymous’. Various media channels ran forensic
test on the video claiming that it wasn’t doctored. 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. On the

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MEMORIAL ON BEHALF OF APPELLANT

same day Mr. Birpaal Singh was interviewed by Winterfell Samachar, 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.

8. 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. Winterfell Liberators made an official statement on the arrest of SSA that
if any harm is done to SSA, Winterfell will face their wrath

9. After she was arrested, it was found by the authorities that she was a juvenile and the same
was verified by various cogent sources that she was born on 20th June 1999. The Juvenile
Justice Board made an assessment by virtue of 2015 Amendment and decided to try her as an
adult given the heinous nature of crimes involved.

10. She was brought to trial under the charges for various crimes under sections 20, 21, 23
and 25 of Narcotic Drugs and Psychotropic Substances Act, 1985, section 121 of
Winterfellian Penal Code, 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. Though during the examination of
witnesses, the fourth witness (Khal Singh) to the panchnamas went hostile and said that he
was not shown any seized drug and was coerced to an extent by the officers.

11. SSA has now approached the Hon’ble High Court of Stark-Pradesh by way of Appeal
against the decision of the Special Court. Further, the arbitrary procedure of assessment by
board and the draconian approach of 2015 Amendment has been challenged in Appeal as they
are against the spirit of a welfare legislation and constitutional values.

12. An NGO, Ajeevan Medical Research Trust, which was researching the medicinal benefits
of the cannabis and happened to be a supporter of Manav Cult’s ideology, filed
filed a Public Interest Litigation (PIL) before the Hon’ble High Court of Stark-Pradesh
challenging the constitutional validity of the Narcotic Drugs and Psychotropic Substances
Act, 1985.

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MEMORIAL ON BEHALF OF APPELLANT

ARGUMENTS ADVANCED

ISSUE -1) WHETHER THE ACCUSED I.E SHAM SAVERA ANGEL IS LIABLE TO
BE PUNISHED UDER THE NARCOTIC DRUGS AND PSYCHOTROPIC
SUBSTANCES ACT,1985 , THE WINTERFELLIAN PENAL CODE,1860 AND THE
UNLAWFUL ACTIVITIES(PREVENTION) ACT,1967?

It is Most Respectfully submitted before the Hon’ble High Court that looking into the facts
and circumstances of the present case and the conduct of the accused it is contended that
there exists no sufficient evidences against the accused i.e the appellant to prove her guilty of
the offences under Section-20,21,23 and 25 of the Narcotic Drugs and Psychotropic
Substances Act,1985 , Section-121 of the Winterfellian Penal Code,1860 and Sections-20,39
and 40 of the Unlawful Activities (Prevention) Act,1967. Moreover, Non Compliance of the
procedure enumerated under The Code Of Criminal Procedure,1973 by the Investigating
Officer i.e.Mr. Jamie Sharma rasies a strong suspicion to its genuiness and does prove the
guilt of the appellant beyond reasonable doubt.

1.) Registration of FIR against the appellant on a mere vague allegation by the
Investigating Officer.

It is most humbly submitted that whenever a police officer gets the information of the
commission of a cognizable offence, Section-154 of The CrPC,1973 mandates the recording
of such information as a First Information Report(FIR). The principal object of the First
Information Report is to set criminal law in motion.1 It is worthwhile to emphasize here that
an information to have the status of the First Information Report under Section-154 must be
an information relating to the commission of a cognizable offence and must not be a vague
allegation.2 It was held by the Apex court that a vague allegation not accompanied by the
Statement of Facts of showing the commission of a cognizable offence cannot be a sufficient
basis for commencing the investigation.3 Therefore, in the matter herein the allegations by the
Driver of the appellant i.e Mr.Jendri Singh being indulged in illegal activities but not

1
Hasib.v. State of Bihar,(1972) 4 SCC 773.
2
State of Haryana v. Bhajan Lal,1992 Supp.(1) SCC 335.
3
Mahant Baba Madhav Das v. State of Rajasthan,(1998) CrilJ 4341 (Raj).

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MEMORIAL ON BEHALF OF APPELLANT

specifying what sort of illegal activities is a vague allegation and does not form an
appropriate basis for the FIR registered against the appellant on 2nd January 2016.

Moreover, In a landmark case the Apex Court held that if the information does not disclose
the commission of a cognizable offence then no FIR can be registered under Section-154. In
such a situation, a ‘Preliminary Inquiry’ should be conducted by the Police Officer to
ascertain whether an offence has been committed or not.4 But in present case no Such effort
of Preliminary Inquiry was conducted, which raises a presumption of doubt on the part of the
Investigating officer.

In addition to that it is Most Humbly submitted that the another FIR lodged by Mr. Birpal
Singh against the accused on February 26,2016 is liable to be quashed because it has been
held that in a case of Subsequent FIR, the Court has to examine the facts and circumstances
giving rise to both the FIRs relates to the same incident, the Second FIR is liable to be
quashed.

Hence, it is submitted that the mere allegation against the Appellant didn’t formed firm basis
for registration of an FIR. Under section-154 of The Code Of Criminal Procedure,1973.

2.) There has been strict Non-Compliance of the provisions of Section-100 & 165 of
The CrPC,1973 and Section-42 of the NDPS Act,1985.

The Provisions for General Search and Seizure are guided by the section-100 and Section-
165 of The CrPC,1973 and these provisions have been made applicable to the searches made
under the NDPS Act,1985.

Section-100(4) of CrPC mandates that the search should be made in the presence of at least
two ‘Independent and Respectable’ witnesses of the locality in which the place to be searched
is situated. A person is entitled to claim respectability provided he is not dis-reputable in any
way5. A dismissed constable, a thief, or a criminal of some kind will not be considered as
‘respectable’6 therefore, the Panch witness Mr.Addharth Singh being prosecuted for a theft
cannot be taken to be a respectable witness. An ‘independent witness’ is the one who is
unprejudiced and disinterested in the result of the search7 But in the present case the two
witnesses i.e. Mr. Peter Bailesh and Mr.Ashok Solemon being the staunch reporters of Adi-

4
Lalita Kumari v. State Of UP, (2014) 2 SCC 1.
5
Yakub Abdul Rajak Menon v. State Of Maharashtra,2013 SC.
6
Ashfaq v. Empror,(1936) 37 Cri Lj 1108.
7
Rajabather,In Re, AIR 1959 MAD 450.

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MEMORIAL ON BEHALF OF APPELLANT

Manav Cult could not be called as independent witnesses. In a case the Apex Court refused to
rely upon the statement of the witnesses who were interested in the conviction of the
accused.8 The Fourth Witness i.e. Mr.Khal Singh, the only independent and respectable
witness to the Panchnama turned hostile during the investigation. In a case it was held that,
Normally,it is expected that the investigating officer will take independent witnesses and if
knowingly he has taken pliable witnesses as panch witnesses, the entire raid would become
suspect and in such a case it would not be possible to hold that the evidence of the police
witnesses by themselves would be sufficient to base a conviction. Therefore, the conviction
cannot be sustained.9 In a case when the prosecution did not join independent witnesses, the
court held that the seizure was made, time was a little after 5:00 a.m. in the morning and the
Head Constable could have easily managed to get some independent and respectable
witnesses.10 Therefore it is most humbly submitted that the Prosecution has failed to
establish by good and reliable evidences that the alleged quantity of Cannabis was seized
from the units of NZT-Cancer.

The Investigating Officer i.e. Mr. Jamie Sharma raided without warrants on the night of 9th
February,2016 around 11:25p.m. A search without warrant is governed by the provisions of
Section-165 of The CrPc and Section-42 of The NDPS Act,1985. According to Section-
165,The power to search a place without a search warrant can only be conducted when the
police officer has reasonable grounds for believing that-(a) any specific thing necessary for
the purpose of the investigation may be found in the place within the limits of his police
station and (b) such thing, in his opinion it would be too late before a search warrant is
obtained from a magistrate. The expression “reasonable grounds for believing” means a
belief based on some definite facts.11 In the present case no such immediate and definite
grounds existed to raid the Factory without warrants more than a month after the registration
of the FIR against the appellant. Moreover , Section-42 of The NDPS Act,1985 provides that
the police officer has the power to enter, search a place without a warrant after sunset only
after recording his grounds of belief. Therefore there existed strict non-compliance with these
statutory provisions.

8
Raghubir Singh v. State Of Punjab,AIR 1976 SC 91.
9
Mohd. Hussain Babamiyan Ramzaan v. State Of Maharashtra, 1994 CriLj 1020.
10
Bhagwan Singh v. The State of Rajasthan, AIR 1976 SC 985.
11
Pratap v. Director of Enforcement,(1985) 3 SCC 72.

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MEMORIAL ON BEHALF OF APPELLANT

The non-compliance with the provisions of Sec-100(4) and Section-165 leads the prosecution
shaky12 and the accused gets benefit of doubt on the facts and circumstances of the case as
procedure is not being followed.13and such irregularity must be taken into consideration
while appreciating the Evidence on Record.14 It was held that the investigating agency must
follow the procedure as envisaged by the statute scrupulously and failure to do so would lead
to unfair trial contrary to concept of Justice.15 And it would affect the weight of evidence in
support of the search and recovery.16 Hence, it is most humbly submitted that the such a
serious non-compliance with the provisions of Section-100(4) and 165 of The CrPC,1973 and
section-42 of The NDPS Act,1985 raises a presumption of doubt on the part of the
prosecution and raises a serious possibility of fabrication of evidence.

3.) There exists an extraordinary delay in investigation and the accused is denied a
right to fair trial.

It is brought to the notice of the Court that the Investigating Officer raided Manav Cult
properties on 28th January,2016 i.e. 26 days after filing of the FIR. In the Fact Sheet no
justification has been provided for the same. In a case the filed for the offence under Section-
15 of The NDPS act, the investigating officer after receiving a secret information of the
cognizable offence reached two hours late when the distance was just 6 km and he was in a
jeep. The Apex Court held that not an iota of evidence is provided to justify what the
investigating officer was doing for those 2 hours and the accused was acquitted.17

It is submitted that the mere recovery of the alleged quantity of Cannabis form a truck in the
Factory’s entrance Courtyard does not prove that the accused was in conscious possession of
it. For example in a case, in the appellant’s agricultural field, 17 Ganja Plants were found
planted. The Apex Court reversing the order of High Court held that there must be a
supporting evidence to prove that the accused had cultivated this prohibited plant and it is not
enough that plants were found in the property of the accused. As a result the accused was
held not guilty of the offence under Section-20 of The NDPS act.18 In an another case where
the respondents were sitting on the gunny bags containing poppy Husk. The Supreme Court
held that the mere presence of Respondents there does not prove that they were in possession

12
Premlata v. State, (1987) CriLj 1539
13
State Of H.P v. Sudarshan Kumar,(1989)Crilj 1492
14
State of Punjab v. Balbir Singh(1995) 1 SCC 382.
15
State Of Punjab v. Baldev Singh, (1999) 6 SCC 172.
16
Madan Lal v. The State of Punjab,(1995) SCC 834.
17
Sukhdev Singh v. State Of Haryana, (2012).
18
Alakh Ram v. State Of U.P.,2004 (1) SCR 394.

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of these articles. In fairness, the Police should have conducted further investigation to prove
that those accused were really in possession of these articles. The Police should have found
out the owner and how it came there.19 In an another case where the packet of Ganja was
seized from the tea stall owned by the appellant and was accused of selling Ganja illegally.
The independent witness did not support the prosecution case and said that no search was
conducted in front of him. Therefore, the Court held that Prosecution has failed to prove
beyond a reasonable doubt that the Ganja seized from the shop of accused was in the
possession of appellant.20

In a case it was held that not only fair trial but fair investigation is also a part of
Constitutional Rights guaranteed under Article-20 and 21 of the Constitution. Therefore, the
investigation must be fair, transparent and judicious as it is the minimum requirement of rule
of law. The investigation must be from objectionable features or infirmities which may
legitimately lead to a grievance on the part of the accused that investigation was unfair and
carried with an alterior motive. The investigating officer should be fair and conscious so as to
rule out any possibility of fabrication of evidence and his impartial conduct must dispel any
suspicion as to its geniunes.21

Therefore, from the facts and cases cited above it can be safely inferred that the prosecution
failed to establish the guilt of the accused beyond reasonable doubt and it appears that the
Special Court failed to notice the above circumstances which throw considerable doubt on the
prosecution case against the appellant. Hence, it is submitted that the appellant i.e. Sham
Savera Angel is being falsely implicated in the offence as she is a hindrance in the drug trade
of the Winterfell Liberators.

19
State Of Punjab v.Balkar Singh, 2004(3) SCR 25.
20
Ram Narayan Raikwar v. State Of Madhya Pradesh,2012.
21
Babubhai v. State of Gujarat and Others.,(2010) 12 SCC 254.

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PRAYER

Wherefore, in the light of the issues raised , arguments advanced and authorities cited , the
counsel for the appellant most humbly and respectfully pray before the Hon’ble High Court
Of Stark Pradesh that it may be pleased to adjudge and declare –

1.)That the Appellant is not guilty of the offences charged under Section-20,21,23 and 25 of
The Narcotic Drugs and Psychotropic Substances Act, 1985 , Section-121 of the
Winterfellian Penal Code and Section-20,39,40 of the Unlawful Activities (Prevention)
Act,1967 and hence pass an order of the acquittal of the Appellant by setting aside the order
of the Special Court.

Pass any other order, writ or direction as this hon’ble court deems fit and proper, in the
interest of Justice, Equity and Good Conscience.

And for this act of kindness the appellant shall as in duty bound ever pay.

-Sd-

Counsel for Appellant

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