Memorial on Behalf of APPELLANT

THE 5th RGNUL NATIONAL MOOT COURT COMPETITION, 2016 Team Code: A-58

THE 5TH RGNUL NATIONAL MOOT COURT COMPETITION, 2016

______________________________________________________________________________ BEFORE THE HON’BLE PUNJAB & HARYANA HIGH COURT _____________________________________________________________________________

SATNAM SINGH and ANOTHER……………………………..APPELLANTS

VERSUS

STATE OF PUNJAB…………………………………………….RESPONDENT

________________________________________________________________________ UPON SUBMISSION TO THE HON’BLE PUNJAB & HARYANA HIGH COURT ______________________________________________________________________________

MEMORANDUM ON BEHALF OF THE APPELLANTS

Memorandum on Behalf of the Appellants

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THE 5th RGNUL NATIONAL MOOT COURT COMPETITION, 2016 CONTENTS 1. List of Abbreviations

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2. List of Authorities

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a. List of Cases

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b. Books

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c. Legal Database

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d. Lexicons

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e. Legislations

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3. Statement of Jurisdiction

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4. Statement of Facts

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5. Statement of Issues

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6. Summary of Arguments

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7. Arguments Advanced

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8. Prayer

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Memorandum on Behalf of the Appellants

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THE 5th RGNUL NATIONAL MOOT COURT COMPETITION, 2016 LIST OF ABBREVIATIONS 1) AIR…..........................................................................................................All India Report 2) Asstt….....................................................................................................................Assistant 3) Bom.....................................................................................................................….Bombay 4) Cr.L.J…..............................................................................................Criminal Law Journal 5) Cr.P.C............................................................................................Criminal Procedure Code 6) Cri............................................................................................................................Criminal 7) Govt................................................................................................................…Government 8) Kg.......................................................................................................................…Kilogram 9) NCT..........................................................................................…National Capital Territory 10) NDPS….........................................................Narcotic Drugs and Psychotropic Substances 11) No..........................................................................................................................…Number 12) Ors...............................................................................................................................Others 13) P.................................................................................................................................….Page 14) r/w.....................................................................................................................….Read with 15) S.............................................................................................................................…Section 16) SC..................................................................................................................Supreme Court 17) SCC….................................................................................................Supreme Court Cases 18) SLP….................................................................................................Special Leave Petition 19) Ss.........................................................................................................................Sub-section 20) u/s…................................................................................................................Under Section 21) v.............................................................................................................................….Versus 22) ¶…………………………………………………………………………………Paragraph Memorandum on Behalf of the Appellants

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THE 5th RGNUL NATIONAL MOOT COURT COMPETITION, 2016 LIST OF AUTHORITIES LIST OF CASES 1. Ajmer Singh v. State of Haryana, (2010) 3 SCC 746. 2. Bahadur Singh v. State of Madhya Pradesh, (2014) 6 SCC 639. 3. Basau Ram Alias Om Nath v State of Haryana, Cr. Appeal No.175-Sb of 2001. 4. Gurmit and others v State of Haryana, 2008 (4) RCR(Criminal) 412. 5. In Beckodan Abdul Rahiman v. State of Kerala, 2002 (3) SCR 53. 6. Kuruma vs the Queen, [1955] A.C. 197. 7. Makhan Singh v State of Haryana, Cr. App. No. 682 of 2015. 8. Man Singh @ Mana & Anr. v. State of Haryana, CRA-D 495-DB of 2005. 9. Manjit Singh@Raju v. State of Punjab, Cr. A. No. 1902 of 2009. 10. Munsar Ali and Others v Union Territory of Tripura, AIR 1964 TRI 45. 11. Om Prakash v. State of Delhi CRL.A. 453 of 2014. 12. Prema Shah v. State of Uttarakhand, 2013 Indlaw UTT 119. 13. Raghunandan v. State of Uttar Pradesh, 1974 AIR 463. 14. Regina v. Leathem, (1861) 8 Cox CC 498. 15. Satpal @ Pala vs. State of Haryana, Crl. M. No. M-17238 of 2013 (O&M). 16. State of H.P. v. Pawan Kumar (2005) 4 SCC 350. 17. Sundar Singh v. State, AIR 1956 SC 411. 18. Usman Haidarkhan Shaikh v State of Maharashtra, 1990 (3) BomCR 181.

Memorandum on Behalf of the Appellants

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THE 5th RGNUL NATIONAL MOOT COURT COMPETITION, 2016 BOOKS: 1. Sharma & Mago, Narcotic Drugs and Psychotropic Substances Laws, 3rd edition, 2014, Eastern Book Company, Lucknow 2. S. C. Sarkar, The Code of Criminal Procedure, Vol. 2, 10th Edition 2012, Lexis Nexis Butterworth Wadhwa, Nagpur 3. Pillai PSA, Criminal law, 10th Edition, 2009, Lexis Nexis Butterworth Wadhwa, Nagpur 4. Bindra NS, Interpretation of Statutes, 10th Edition, Lexis Nexis Butterworths Wadhwa, New Delhi. 5. Woodroffe and Amir Ali, Law of Evidence, 19th Edition 2012, Lexis Nexis, Butterworths Wadhwa, Nagpur LEGAL DATABASE: 1. Manupatra 2. SCC Online 3. Westlaw 4. Hein Online LEXICONS: 1. Garner Bryana, Black‟s Law Dictionary, 7th Edition, 1999 2. P. Ramanatha Aiyar, Concise Law Dictionary, 3rd Edition, 2011 LEGISLATION: 1. The Narcotic Drugs and Psychotropic Substances Act, 1985 2. Code of Criminal Procedure, 1973 3. The Indian Evidence Act, 1872

Memorandum on Behalf of the Appellants

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THE 5th RGNUL NATIONAL MOOT COURT COMPETITION, 2016 STATEMENTS OF JURISDICTION The appellants humbly submits to the Hon’ble High Court of Patiala that it has the jurisdiction to try, entertain and dispose the present matter under Section 374 (2) Cr.P.C. The appellant has approached the Hon’ble High Court against the order of conviction of Special Court. The respondent submits that the petition has been opposed on behalf of the respondents. “The Criminal Procedure Code; Under Section 374” reads as: Appeals from convictions: (2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years has been passed against him or against any other person convicted at the same trial, may appeal to the High Court.

Memorandum on Behalf of the Appellants

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THE 5th RGNUL NATIONAL MOOT COURT COMPETITION, 2016 STATEMENT OF FACTS Satnam Singh went on trip to Rajasthan with his family. Taking benefit of the absence of Satnam Singh, Shamsher Singh encroached upon part of the land of his house on house owned by Satnam Singh No. 789, Green Avenue, Patiala. Satnam Singh went to Central Police Station Patiala on 8 th January 2015 at about 10:00 am to lodge complaint against Shamsher Singh for the said encroachment of his land. Satnam Singh met Inspector Joginder Singh, Station House Officer of Central Police Station, Patiala to lodge his complaint against Shamsher Singh. Inspector Joginder Singh marked his complaint to SubInspector Hakam Singh. Copy of the complaint was submitted to the court. When Satnam Singh contacted Sub Inspector Hakam Singh at 11 am on 8th January 2015, Sub-Inspector Hakam Singh told Satnam Singh that he was busy in some other matter and Satnam Singh could see him in the evening, and at that time he would be at Naka Duty on Patiala-Nabha Road. Thereafter Satnam Singh accompanied by Balbir Singh during their return journey from Nabha to Patiala at about 7:00 pm on 8th January 2015, Satnam Singh and Balbir Singh halted at Police Naka on Patiala-Nabha Road, to see Sub-Inspector Hakam Singh regarding Satnam Singh's complaint against Shamsher Singh. Both Satnam Singh and Balbir Singh were put in the lock up. Thereafter accused in the present case were falsely implicated for the offences under NDPS Act as Sub-Inspector Hakam Singh was out to favour Shamsher Singh as he was an influential person with political links. An FIR No. 1234 was recorded at Central Police Station Patiala u/s. 8 (c) read with Ss. 18 (c), 25 and 29 of the Narcotic Drugs and Psychotropic Act, 1985 against Satnam Singh, Balbir Singh and Kuldeep Kaur, on 9th January 2015 at 10:00 am. Memorandum on Behalf of the Appellants

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THE 5th RGNUL NATIONAL MOOT COURT COMPETITION, 2016 During trial, Harnam Singh, a neighbour of Satnam Singh, deposed before the court about said encroachment. Sardul Singh (DW-1) deposed before the trial court that he had not witnessed any search or seizure at police Naka on Patiala-Nabha Road on 8 th January 2015. But police got his signatures on some papers, on 9th January 2015 by calling him at Central Police Station, Patiala. He did not know what was written on those papers. Defence also pleaded before the trial court that Deena Nath was a gambler and he remained witness in many cases at the behest of Police, as and when required by Police. The trial court after considering all the material on record convicted Satnam Singh and Balbir Singh. Satnam Singh was sentenced with Rigorous Imprisonment of 10 years and a fine of Rs. One lac and in default of payment of fine a further rigorous imprisonment of six months under section 18 (c) of NDPS Act, 1985. Accused No. 2 Balbir Singh was sentenced to Rigorous Imprisonment of 15 years and a fine of Rs. One lac Fifty thousand under sections 18 (c) read with section 31 (1) of the NDPS Act, 1985. In default of payment of fine Balbir Singh was to undergo a further term of rigorous imprisonment for one year. Accused No. 3 Kuldeep Kaur was acquitted.

Memorandum on Behalf of the Appellants

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THE 5th RGNUL NATIONAL MOOT COURT COMPETITION, 2016 STATEMENT OF ISSUES

ISSUE I WHETHER THE APPEAL FILED IN THE HIGH COURT OF PUNJAB AND HARYANA AGAINST THE CONVICTION ORDER PASSED BY SPECIAL COURT, PATIALA IS MAINTAINABLE? ISSUE II WHETHER THE PROCEDURE FOLLOWED BY POLICE WAS ACCORDING TO THE PRESCRIBED LAW? ISSUE III: WHETHER THE APPELLANTS HAS BEEN FALSELY IMPLICATED OR NOT?

Memorandum on Behalf of the Appellants

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THE 5th RGNUL NATIONAL MOOT COURT COMPETITION, 2016 SUMARRY OF ARGUMENTS WHETHER THE APPEAL FILED IN THE HIGH COURT OF PUNJAB AND HARYANA AGAINST THE CONVICTION ORDER PASSED BY SPECIAL COURT, PATIALA IS MAINTAINABLE? The counsel on behalf of the appellants humbly plead before the Hon’ble High Court that the conviction order passed by the Special Court is not maintainable and requests the court to reconsider the decision passed by the Special Court. The Lower Court has failed to notice some relevant facts and examine the prime witnesses properly. WHETHER THE PROCEDURE FOLLOWED BY POLICE WAS ACCORDING TO THE PRESCRIBED LAW? The counsel on behalf of the appellants humbly pleads before the court of law about the procedure followed by the police was full of discrepancies and had many faults in it, which the Special Court completely failed to notice. Steps taken by the police are questionable and there were procedural lapse in the search and seizure conducted by the police. WHETHER THE APPELLANTS HAS BEEN FALSELY IMPLICATED OR NOT? The counsel on behalf of the appellant humbly pleads before the court of law that the Police in the present case has falsely implicated the appellants. The independent witness couldn’t be trusted and subsequent evidences have been widely discussed in the later part of the memorial. There has been established links between the Police and the Prosecution side. So, it is clear that the police have falsely implicated the appellants in the given case.

Memorandum on Behalf of the Appellants

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THE 5th RGNUL NATIONAL MOOT COURT COMPETITION, 2016 ARGUMENTS ADVANCED 1. WHETHER THE APPEAL FILED IN THE HIGH COURT OF PUNJAB AND HARYANA AGAINST THE CONVICTION ORDER PASSED BY SPECIAL COURT, PATIALA IS MAINTAINABLE? The appellants humbly submit that the appeal in the present case is maintainable as Hon’ble Trial Court has not considered various evidences and testimony of witness. Court was not justified in their judgement and hence the present appeal. The Special Court has passed an order of conviction against the appellant’s u/s 8(c) r/w 18 (c) of NDPS Act, 1985. The judgment passed by the Special Court Patiala is challenged in the Hon’ble High Court of Punjab and Haryana by the appellant through this appeal. A. The trial court was not just and was unfair with regard to examination of the relevant facts and laws. The Special Court has failed to examine certain important facts of the case and also ignored many relevant evidences which were produced before the Special Court. There was nonapplication of mind with regard to the judgment and hence it is the responsibility of the High Court to examine the evidences which are produced and was ignored by the Special Court. The eye witnesses no doubt seem to have impressed the Special Court which had the advantage of seeing them depose. There are, however, at least two features of this case which could provide serious grounds for suspecting the prosecution version in the Special Court1.

1

Raghunandan v. State of Uttar Pradesh, 1974 AIR 463, ¶ 9

Memorandum on Behalf of the Appellants

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THE 5th RGNUL NATIONAL MOOT COURT COMPETITION, 2016 a) The Special Court was aware of the complaint made by the appellant regarding the encroachment of the appellant’s property by his neighbor one Shamsher Singh when he was in Rajasthan with his family for a holiday. After Satnam Singh (Accused No. 1) returned from Rajasthan and found a wall built in his property, he lodged a complaint against one Shamsher Singh at Central Police Station Patiala on 8th January 2015 at about 10:00 am for the said encroachment of the land. Satnam Singh met Inspector Joginder Singh, Station House Officer of Central Police Station with regard to the complaint against Shamsher Singh. Inspector Joginder Singh marked his complaint to Sub-Inspector Hakam Singh. Copy of the complaint was submitted to the court2. b) One Harnam Singh was the neighbor of appellant; also deposed before the Special Court regarding the above said encroachment3. The Special Court ignored such relevant evidences and also did not inquire further in regard to the deposition made by Harnam Singh or with regard to the complaint filed by the appellant himself. Therefore from the above stated facts and evidences, though it does not completely prove at this instance that the appellants are innocent regarding the case but it creates certain ambiguity in both the versions and the questions their conviction order passed as it clearly shows that the Learned Special Court have failed to examine the evidences completely and have not explained the reasons for such judgment when there are various inconsistency. The Prosecution has failed to establish the case beyond reasonable doubt. Justice Virender Singh in a case observed that, “The provisions of the Act are very stringent and the minimum sentence provided is imprisonment for ten years and a fine of Rs.1,00,000/-. Therefore, before the conviction is recorded, the prosecution should not leave any room for 2 3

¶¶ 11,12, Pg. 4-5, Moot Proposition, 5th RGNUL National Moot Court Competition, 2016. ¶ 11, Pg. 4-5, Moot Proposition, 5th RGNUL National Moot Court Competition, 2016.

Memorandum on Behalf of the Appellants

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THE 5th RGNUL NATIONAL MOOT COURT COMPETITION, 2016 doubt at least on vital aspects and one of them is certainly that there should not be any chance of tampering with the case property at any stage. If the court finds that the prosecution is unable to prove the link evidence beyond doubt, the benefit has to be extended to the accused irrespective of the quantity of the contraband. I am appreciating the case in hand on that aspect on the basis of the evidence on record”4. “The Special Court could and should have, put to the witnesses to clear, up the position. If the Special Court had failed to consider their importance, the High Court should have taken further evidence on this matter under section 540 of Criminal Procedure Code.”5 The Section 540 read as, “Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case”. The present Code provides the same interpretation u/s 311. In a criminal case, the fate of the proceeding cannot always be left entirely in the hands of the parties6. In the present case also the High Court should take further evidence under Section 311 of Cr. P.C7. The Apex court observed, “It is a well settled principle of the criminal jurisprudence that more stringent the punishment, the more heavy is the burden upon the prosecution to prove the offence. When the independent witnesses PW1 and DW2 have not supported the prosecution case and the recovery of the contraband has not been satisfactorily proved, the conviction of the

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Basau Ram Alias Om Nath v State of Haryana, 2006 Indlaw PNH 609; p 3. Supra.1, ¶ 11 6 Ibid. ¶ ¶ 9,11 7 Power to summon material witness, or examine person present. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re- examine any person already examined; and the Court shall summon and examine or recall and re- examine any such person if his evidence appears to it to be essential to the just decision of the case. 5

Memorandum on Behalf of the Appellants

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THE 5th RGNUL NATIONAL MOOT COURT COMPETITION, 2016 appellant under Section 15 of the NDPS Act cannot be sustained.”8 Similarly, in the present case the D.W.- 2 has supported the defense version and it has questioned the prosecution story, and also the Special Court have failed to inquire into the matter even after the submission of a copy of Police Complaint which the defense stated in their version. The order passed by the Special Court should not stand as it does not prove the case against the accused and the High Court should look into the matter once again. In a similar case, the Hon’ble Punjab and Haryana High Court, in a Single Bench Judge; held, “perusal of the prosecution evidence shows that there are certain loop holes which have not been plugged. Trial Court has convicted the appellant on the testimony of police officials. There must be some independent corroboration as far as possible.”9 B. There were various procedural flaws in search, seizure and arrest as per prescribed statues with reference to NDPS Act and Cr.P.C. To add to this section 50 (6) of NDPS Act has also not been complied which is very important with regard to the search, seizure and arrest. It is clearly laid down in Section 50 (6) of NDPS Act that, “After a search is conducted under subsection (5),10 the officer shall record the reasons for such belief which necessitated such search and within a seventy- two hours send a copy thereof to his immediate official superior.”11 Compliance with Section 50 of the NDPS Act will come into play only in the case of personal search of the accused and not of some baggage like a bag, article or container, etc. which the accused may be carrying ought to be searched, ruled in

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Makhan Singh v State of Haryana, Cr. App. No. 682 of 2015 Satpal @ Pala vs. State of Haryana, Crl. M. No. M-17238 of 2013 (O&M) 10 50(5),When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974). 11 Section 50(6), Narcotics Drugs and Psychotropic Substances Act, 1985. 9

Memorandum on Behalf of the Appellants

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THE 5th RGNUL NATIONAL MOOT COURT COMPETITION, 2016 State of H.P. v. Pawan Kumar.12 In Beckodan Abdul Rahiman v. State of Kerala,13 11 gms of opium was found in a polythene bag which had been concealed in the fold of dhoti which the accused was wearing. This was clearly a case of search of a person, as explained above, and Section 50 was rightly held applicable. Same view was reiterated in Ajmer Singh v. State of Haryana.14 Here, the court should understand the reason why this discrepancies needs to be answered. In the present case the facts and evidences have not been consistent and both parties have their own version to the incident. The trial court failed to explain any reason for such discrepancies and passed an order. The non compliance of provisions of section 50 would question the prosecution and there are no concrete evidences produced by them to convict the accused. Since the appellants have denied the fact that there was search and seizure, and the prosecution have not brought any evidence to prove it, and in addition to it, there are certain discrepancies which needs to be answered before the High Court concludes and pass an order. The entire recovery of the contraband allegedly recovered from the appellant is shrouded in mystery and in any case, the mandatory procedure as required under Section 50 of the NDPS Act was not adhered to. The contradictions which are material in nature and go to the root of the matter falsify the prosecution story and it cannot be said that the case has been proved against the appellant15.

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State of H.P. v. Pawan Kumar, (2005) 4 SCC 350, ¶ (11)

13

Beckodan Abdul Rahiman v. State of Kerala, JT 2002 (3) Cri.L.J. 2529 (SC). Ajmer Singh v. State of Haryana, (2010) 3 SCC 746. 15 Manjit Singh@Raju v. State of Punjab, Cr. A. No. 1902 of 2009. 14

Memorandum on Behalf of the Appellants

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THE 5th RGNUL NATIONAL MOOT COURT COMPETITION, 2016

2. WHETHER THE PROCEDURE FOLLOWED BY POLICE WAS ACCORDING TO THE PRESCRIBED LAW. The appellant humbly submits that the search and seizure of the appellants by the prosecution was unjustifiable and was against with the provisions of the NDPS Act as well as the Criminal Procedure Code. As the counsel have already pointed out to the Special Court that the arrest itself was unlawful and there was no search taken place at the Naka. There are many questions of law which needs to be answered which according to the Special Court was not relevant which was seen when it passed a conviction order without having an explanation to such questions. There are serious material discrepancies in the evidence in respect of recovery and seizure. 16 Therefore the council would like to bring to the notice of the High Court, the Procedural lapse which the prosecution failed to prove. A. There was illegality with regards to the obtaining of evidences Earlier to 94th Law Commission Report, the courts did not question the evidences brought in front of the court. In Kuruma vs the Queen17, Lord Goddard said: „In their Lordships‟ opinion the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained.” In Regina v. Leathem,18 The court overruled an objection to production of a

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Bahadur Singh v. State of Madhya Pradesh, (2014) 6 SCC 639. [1955] A.C. 197 18 ((1861) 8 Cox CC 498) 17

Memorandum on Behalf of the Appellants

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THE 5th RGNUL NATIONAL MOOT COURT COMPETITION, 2016 letter which had been discovered in consequence of an inadmissible statement made by the accused: „It matters not how you get it; if you steal it even, it would be admissible.” After the 94th Law commission, the admission of the evidence were to be done only after proving the fact there was no unlawful means used to obtain the evidence. The Code of Criminal Procedure, 1973 lays down the procedure for the carrying out of searches by the police during the investigation of the offence. These provisions also lay down a number of safeguards that have to be observed by the police in carrying out these searches. However, when the question arose about the admissibility of evidence which contravened these procedures, particularly the requirement wherein two independent witnesses are required to be present during the search, the court adopted a legalist approach and held that such evidence would not be per se inadmissible.19 Supreme Court observed, “There rests no discretion with the judge to exclude evidence obtained through search which has not been conducted with the accordance of the provisions of law. The only impact that such illegality in procuring of such evidence may be strictures against the police and can affect the weight of the evidence but the legality of the evidence remains unaffected by the defect in the search.”20 B. There was delay in lodging FIR and due procedure was not followed by the prosecution for investigation. The law makers have taken proper steps by providing specific procedures and provisions to ensure speedy and fair trial. Any delay in part of the concerned authority can question the entire investigation and when such officers cannot explain the delay in procedure the weight-age of the evidence can be questioned. In the present case, as the Prosecution specifies, the accused were 19 20

Valayudhan v The State, AIR 1961 Ker. 8 (FB); Kau Sain v The State of Punjab, AIR 1974 SC 329; Sundar Singh v. State, AIR 1956 SC 411

Memorandum on Behalf of the Appellants

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THE 5th RGNUL NATIONAL MOOT COURT COMPETITION, 2016 stopped by the officers at about 7: 30 pm on January 8th, 2015 near Bhakhra Nehar Bridge, when they were on their way to Patiala.21 The FIR of the same was filed on the Morning of January 9th, at 10 am22. There is a time span of 14 hours and 30 minutes of which the officials have failed to account for the reason of such delay. It was observed by Uttarakhand High Court in the case observed, “FIR was lodged with police station after 3 hours from time of arrest, and admittedly police station was within a kilometer from place of arrest. No explanation with regard to delay in registering FIR did come forward. However, if any narcotic drug or psychotropic substance was seized, keeping in mind vulnerability to theft, misuse, substitution and constraints of proper storage space - It was desirable that officer-in-charge of police station or officer empowered u/s. 53 of the Act, to whom such seized contraband was forwarded u/s. 52 of the Act, should immediately approach Magistrate for certifying correctness of inventory, taking photographs and for taking all samples in presence of Magistrate under his certificate so that false implication of innocent people might be avoided.” 23 In the present case also the proper procedure prescribed by the law has not been duly complied. The prosecution failed to explain such delay in lodging FIR. C. Delay in sending samples to Forensic science laboratory with regard to standing order issued by Narcotics Bureau. At this juncture, it deserves to be pointed out here that sample parcels were sent to Forensic Science Laboratory after 18 days though as per the standing instructions of Narcotic Control Bureau Centre, the same should be sent within 72 hours24. In Man Singh @ Mana v. State of

21

¶ 1, Pg. 1, Moot Proposition, 5th RGNUL National Moot Court Competition, 2016. ¶ 7, Pg. 3, Moot Proposition, 5th RGNUL National Moot Court Competition, 2016. 23 Prema Shah v. State of Uttrakhand, 2013 Indlaw UTT 119 24 Gurmit and others v State of Haryana, 2008 (4) RCR(Criminal) 412. 22

Memorandum on Behalf of the Appellants

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THE 5th RGNUL NATIONAL MOOT COURT COMPETITION, 2016 Haryana, it was made clear by the Punjab & Haryana High Court “the investigating agency has violated the standing instructions No.1/88 dated 15.3.1988 issued by the Narcotic Control Bureau, New Delhi. Clause 1.13 of these instructions postulates the mode and time limit for dispatch of sample to Laboratory. As per these instructions, the sample should be sent either by insured post or through special messenger duly authorized for the purpose. The dispatch of samples by registered post or ordinary mail should not be resorted to. The samples must be dispatched to the Laboratory within 72 hours of seizure to avoid any legal objection. Therefore, it was the duty of the Investigating agency to send the sample parcels to the Laboratory within 72 hours of the seizure to avoid any legal objection but in the present case, the samples were admittedly not sent within 72 hours, which were sent after five days”25 Thus, the prosecution has violated the instructions issued by Narcotic Control Bureau and no explanation for late sending the samples is forth coming on record, which creates a doubt upon the veracity of the prosecution version. 3. WHETHER THE POLICE HAVE FALSELY IMPLICATED THE ACCUSED IN THIS PRESENT CASE. In the present Appeal, the Appellants plead that they have been falsely implicated in the present case. As far as the arrest, seizure memos and other documents are concerned, they are all false and forged and prepared at the Police Station. Fake recovery has been fabricated and nothing was recovered as no incident ever happened at Patiala Nabha Road as alleged in the investigation by the prosecution. The delay in sending the samples to the forensic lab also creates doubt in the entire search procedure. The Sub-Inspector Hakam Singh was out to favour Shamsher Singh as

25

Man Singh @ Mana & Anr. v. State of Haryana, CRA-D 495-DB of 2005.

Memorandum on Behalf of the Appellants

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THE 5th RGNUL NATIONAL MOOT COURT COMPETITION, 2016 he was an influential person with political links. Both the accused, Satnam Singh and Balbir Singh were taken to Central Police Station, Patiala along with their vehicle and were put in the lock up. Thereafter appellants in the present case were falsely implicated for the offences under NDPS Act. Sardul Singh (PW-2)26 (DW-1)27 deposed before the trial court that he had not witnessed any search or seizure at police Naka on Patiala-Nabha Road on 8th January 2015. But police got his signatures on some papers, on 9th January 2015 by calling him at Central Police Station, Patiala. He did not know what was written on those papers.28 The Special Court should have asked further questions when the witness made such statement. When there are different versions brought by the parties in a case, and the evidence shows some inconsistencies and discrepancies, “the powers of the court under s. 165 of the Evidence Act to put any questions to a witness are also couched in very wide terms authorizing the judge in order to discover or to obtain proper proof of relevant facts"29. In the present case, the Special Court failed to inquire the facts. The special court was in the advantage of seeing the witness depose but it failed to bring out the facts. The Appellants in the present case have pointed out various points which show the inconsistencies in the different versions by the party. The conviction of the appellants was based on the statement made by Deena Nath and other official witnesses. In Makhan Singh vs State of Haryana30, the Apex court held that, “Though it is well settled that a conviction can be based solely on the testimony of official witnesses, condition precedent is that the evidence of such official witnesses must inspire confidence. In the 26

¶ 9, Pg. 4, Moot Proposition, 5th RGNUL National Moot Court Competition, 2016. ¶ 16, Pg. 5, Moot Proposition, 5th RGNUL National Moot Court Competition, 2016. 28 ¶ 16, Pg. 5, Moot Proposition, 5th RGNUL National Moot Court Competition, 2016. 29 Supra note 1. 30 Supra note 8. 27

Memorandum on Behalf of the Appellants

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THE 5th RGNUL NATIONAL MOOT COURT COMPETITION, 2016 present case, it is not as if independent witnesses were not available. Independent witnesses PW1 and another independent witness examined as DW2 has spoken in one voice that the accused person was taken from his residence. In such circumstances, in our view, the High Court ought not to have overlooked the testimony of independent witnesses, especially when it casts doubt on the recovery and the genuineness of the prosecution version.” In the present case also the statements of the official witness and that of Deena Nath (P.W. 1) are one while the statement of other independent witness is different and he does not generate any confidence in the prosecution’s case. Deena Nath was a gambler and a stooge of police. He remained witness in many cases at the behest of Police, as and when required by Police. He has in the present case made statements which support the prosecution but how much weight-age can be given to the statement of a stooge of police and a gambler. “Sub Inspector called on phone one Deena Nath a resident of nearby village Ranbirpura..”31 The fact that Sub Inspector had the phone number of the witness signifies that he is not an independent witness but has certain thereabouts with the Policemen for the reason undisclosed. It is very strenuously contended on behalf of the Accused that this evidence is sufficient to show that the said witness is actually a "stooge", in the hands of the police. It is therefore further contended that when the prosecution relies on the evidence of such witness who cannot be considered as an independent witness, no reliance could be placed on his evidence, it appears that the learned Special Judge did not consider the said infirmity as fatal to the prosecution32, and solely basing conviction on statement of such witness who is unworthy of credit 33 is not meeting

31

¶ 3, Pg. 2, Moot Proposition, 5th RGNUL National Moot Court Competition, 2016. Usman Haidarkhan Shaikh v State of Maharashtra, 1990 (3) BomCR 181 33 Section 155 (1), Indian Evidence Act, 1872. 32

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THE 5th RGNUL NATIONAL MOOT COURT COMPETITION, 2016 the ends of Justice. Section 15534 of Indian Evidence Act provides that the credit of a witness can be impeached. Impeaching the credit of a witness means exposing his real character to the court so that the court may not trust him.35 It is always necessary to ascertain the trustworthiness of the witness as it being a medium through which the court is to arrive at the truth or falsity of the claim or charge in litigation.36 In the absence of clear evidence to show that a sincere effort was made, the Court should not simply accept the proposition that generally in such cases no member of the public comes forward to help the prosecution.37 In Ajmer Singh v. State of Haryana38, it was held that in such circumstances the “Court will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence”. In the present case, given the shoddy investigation, the failure to associate any witness to confirm the prosecution story, and the deposition of Sardul Singh (PW2) constituted an additional factor to disbelieve the case of the prosecution. He was a won over witness by the defense. “Now, the discretion given under sec. 154 of the Indian Evidence Act, 1872 is a discretion vested in the trial court and, this discretion was exercised after perusal of the statement given u/s. 161 Code Of Criminal Procedure, 1898 to the police. The appellate court cannot lightly interfere with such discretion exercised by the trial court and that too without perusing the statement given by this witness u/s. 161 Cr. P. C. Even if the appellate court was holding that permission to cross-examine the witness should have been given by the trial court, the proper thing for the appellate court to do would be to send back the 34

Impeaching credit of witness.- The credit of a witness may be impeached in the following ways by the adverse party, or with the consent of the Court, by the party who calls him :- (1) by the evidence of persons who testify that they, from their knowledge of the witness believe him to be unworthy of credit; 35 Dr Avatar Singh, Principles Of Law Of Evidence, Central Law Publication, p. 555. 36 Woodroffe & Amir Ali, Law of Evidence, 19 th Ed., Vol. 4, p. 5344. 37 Om Prakash vs State of Delhi, CRL.A. 453 of 2014 38 Supra note 14.

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THE 5th RGNUL NATIONAL MOOT COURT COMPETITION, 2016 case to the trial court to take the evidence of the said witness further after granting the prosecution permission to cross-examine the witness. Without doing so, the appellate court cannot straightway proceed to reject the entire evidence of the said witness, as if he was a hostile witness and had been won over by the defense”39. There have been many cases there were certain discrepancies in the procedure of Search and Seizure, the statement of the witnesses vary, the delay in sending the sample and many other aspects which give an indication towards false implication. The act is incomplete without the mens rea for such implication. The entire case is being reported to the Station House officer. He is a person with high rank in the Police Department and also has built some Political Links. The fact is disclosed to the court that there existed a property dispute between Satnam Singh and his neighbour, Shamsher Singh. Samsher Singh was an influential person and also had Political Links. When the entire story could be completed and the gap between the two stories would be filled when this fact is placed as a bridge. The entire case was to help Shamsher Singh and under some Political influence. Hence considering all the facts the High Court should acquit the appellants in the present case as the respondents were not able to prove the case against the appellants beyond reasonable doubt. It was held in Satpal @ Pala v State of Haryana40, “Perusal of the prosecution evidence shows that there are certain loop holes which have not been plugged. Trial Court has convicted the appellant on the testimony of police officials. There must be some independent corroboration as far as possible” The present case, when observed very carefully is very similar to the facts and circumstance in the case of Makhan Singh v. State of Haryana.41 It was contended in the case that, “Challenging his conviction, the appellant has approached this Court with a contention that he 39

Munsar Ali and Others v Union Territory of Tripura, AIR 1964 TRI 45 Supra note 9 41 Supra note. 8 40

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THE 5th RGNUL NATIONAL MOOT COURT COMPETITION, 2016 has been falsely implicated in the case and that he was brought from his house and was put behind the bars. Learned counsel for the appellant contended that the case of the prosecution is based solely on the testimony of official witnesses PW2 and PW6 and much weightage ought not to have been attached to their testimony, especially by discarding the testimony of both the defence witnesses. It was submitted that since both the independent witnesses did not support the prosecution story, the prosecution has not proved its case beyond reasonable doubt and this material aspect has been ignored by the courts below. Appellant also alleges that noncompliance of mandatory provisions under Sections 50 and 52 of the NDPS Act vitiates the alleged recovery of contraband.”42 It was held by R. Banumathi, J. “Section 15 provides for punishment for contravention in relation to poppy straw. The maximum punishment provided in the section is imprisonment of twenty years and fine of two lakh rupees and minimum sentence of imprisonment of ten years and a fine of one lakh rupee. Since in the cases of NDPS Act the punishment is severe, therefore strict proof is required for proving the search, seizure and the recovery. The conviction of the appellant and the sentence imposed on him is set aside and this appeal is allowed. Fine amount of Rs.1, 00,000/-, if paid, is ordered to be refunded to the appellant. The appellant is ordered to be set at liberty forthwith unless required in any other case.”43

42 43

Makhan Singh v State of Haryana, Cr. App. No. 682 of 2015. Ibid.

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THE 5th RGNUL NATIONAL MOOT COURT COMPETITION, 2016 PRAYER In the light of the issues raised, arguments advanced and authorities cited may this Hon’ble Court be pleased to: 1. Allow the appeal. 2. Set aside the conviction order passed by the Special Court, Patiala. AND/OR Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience. And for this, the Petitioner as in duty bound, shall humbly pray. . All of which humbly submitted by Counsel on behalf of Appellants

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