RGNUL Moot Court Competition 2016 (R)

5TH RGNUL NATIONAL MOOT COURT COMPETITION, 2016

R 47 TEAM CODE: R 47

IN THE HON’BLE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH CRIMINAL APPEAL NO……….. OF 2016

IN THE MATTER OF:

SATNAM SINGH

... APPELLANT-1

BALBIR SINGH

…APPELLANT-2

V.

…RESPONDENT

STATE OF PUNJAB

CRIMINAL APPEAL AGAINST CONVICTION UNDER § 36B OF NDPS ACT R/W § 374 OF CRPC

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TABLE OF CONTENTS S. NO.

PARTICULARS

PAGE NO.

1.

LIST OF ABBREVIATIONS

Ii

2.

INDEX OF AUTHORITIES

Iii

3.

STATEMENT OF JURISDICTION

4.

STATEMENT OF FACTS

Ix

5.

ISSUES RAISED

Xi

6.

SUMMARY OF ARGUMENTS

Xii

7.

ARGUMENTS ADVANCED

1-20

I.

Viii

WHETHER RESPONDENT HAS ESTABLISHED THE COMMISSION OF ALLEGED OFFENCE AGAINST THE APPELLANTS? A. That the Appellants were present at the spot. B. That the Appellants were in conscious possession of the contraband. C. That the Appellants had a culpable state of mind. D. That the recovery of the contraband was affected from the Appellants.

II.

WHETHER THE APPELLANTS HAVE BEEN FALSELY IMPLICATED? A. That no prejudice has been caused due to delay in F.I.R. B. That the delay in sending samples is of inconsequence. C. That there are major discrepancies in the defence version.

III.

WHETHER THE PROCEDURE ALLEGED TO BE ADOPTED IN SEARCH AND SEIZURE STANDS THE SCRUTINY OF LAW OR NOT?

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A. That PW-2 is a hostile witness. B. That PW-1 is an independent and reliable witness. C. That official witnesses are credible witnesses. IV.

WHETHER THE PROCEDURAL SAFEGUARDS UNDER § 50 OF NDPS ACT, 1985 HAVE BEEN COMPLIED WITH OR NOT? A. That there is no prescribed format in which the right has to be informed. B. That in case of chance recovery compliance of § 50 is not mandatory. C. That there is no need to serve a written notice to the person to be searched.

V.

WHETHER THE ENHANCEMENT OF SENTENCE BASED ON PREVIOUS CONVICTION IS VALID OR NOT? A. That charge of Previous Conviction was duly framed. B. That there was proper evidence on record regarding previous conviction. C. That the questions put to the accused under §313 did not cause prejudice to the Appellant No. 2.

8.

21

PRAYER

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LIST OF ABBREVIATIONS

S. NO.

ABBREVIATION

FULL FORM

1.

&

And

2.

§

Section

3.

@

Alias

4.

AIR

All India Reporter

5.

Anr.

Another

6.

CrLJ

Criminal Law Journal

7.

CrPC

Code of Criminal Procedure

8.

DW

Defence Witness

9.

ed.

Edition

10.

HC

High Court

11.

NCB

Narcotics Control Bureau

12.

NDPS

Narcotic Drugs and Psychotropic Substances

13.

NOC

Notes on Cases

14.

Ors.

Others

15.

PW

Prosecution Witness

16.

P&H

Punjab and Haryana

17.

r/w

Read with

18.

SC

Supreme Court

19.

SCALE

Supreme Court Almanac

20.

SCC

Supreme Court Cases

21.

SI

Sub Inspector

22.

thr

Through

23.

v.

Versus

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INDEX OF AUTHORITIES BOOKS REFERRED: S. NO. 1.

BOOK NAME Dibyajyoti De, Guide to Narcotic Drugs and Psychotropic Substances Act (Wadhwa& Co., Nagpur 2003). Dr. M.C. Mehanathan, Law of Control on Narcotic Drugs and

2.

PsychotropicSubstances in India (2nd ed. Capital Law House, Delhi 2007) 3.

2 Dr. V. Kesava Rao, Sir John Woodroffe & Syed Ameer Ali’s Law Of Evidence (18th ed. Lexis Nexis Butterworths Wadhwa, Ngpur 2008)

4.

Justice C.K. Thakker, Law of Evidence (2nd ed.Whytes& Co., New Delhi 2015)

5.

K.P. Kataria, Law Relating to Narcotic Drugs and Psychotropic Substances in India (3rd ed. Orient Publishing Co., New Delhi 2010)

6.

Sir John Woodroff, Code of Criminal Procedure (3rd ed. Law Publishers Pvt. Ltd., Allahabad 2009)

STATUTES REFERRED: S. NO.

NAME OF THE STATUTE

1.

THE INDIAN EVIDENCE ACT, 1872

2.

NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985

3.

THE CODE OF CRIMINAL PROCEDURE, 1973

RULES REFERRED: S. NO. 1.

NAME OF THE RULE PUNJAB POLICE RULES, 1934

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NCB INSTRUCTIONS

2.

JOURNAL REFERRED: S. NO.

NAME OF THE JOURNAL SHRIYA GAUBA, PREVIOUS CONVICTION, CRIMINAL LAW JOURNAL, MARCH,

1.

2015, 11.

WEBSITES REFERRED: S.NO.

NAME OF THE WEBSITE

1.

www.airwebworld.com

2.

www.judis.nic.in

3.

www.manupatra.com

4.

www.scconline.com

CASES REFERRED: S. NO.

CASE NAME

CITATION

PG. NO.

Ananda Biswas and another v. State of West

2015 Cri. L. J.

9

Bengal

(N.O.C.) 219 (CAL.)

2.

Apren Joseph v. State of Kerala

A.I.R. 1973 S.C. 1

7

3.

Ashok @ Dangra Jaiswal v. State of Madhya

(2011) 5 S.C.C. 123

9

1.

Pradesh 4.

B. Ramaih v. State of Karnataka

(2014) 9 S.C.C. 365

7

5.

Baldev Singh v. State of Haryana

2016 Cri. L.J. 154

12

6.

Dharampal Singh v. State of Punjab

(2010) 9 S.C.C. 608

3

7.

Gian Chand v. State Of Haryana

(2013) 14 S.C.C. 420

4

8.

Gurpreet Singh and another v. State of Punjab

2015 Cri. L.J.

5

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(N.O.C.) 179 (P. & H.) 9.

Gurumukh Singh v. State of Uttaranchal

2015 Cri. L. J. 4211

6

(Utt.) 10.

Hardip Singh v. State of Punjab

A.I.R. 2009 S.C. 432

7

11.

Hari Singh v. State of Himachal Pradesh

2012 Cri. L. J. 2036

13

(H.P.) 12.

Jeet Ram v. State of H.P.

2012 Cri. L. J.

7

(N.O.C.) 2 (H. P.) 13.

Joseph Fernandez v. State of Goa

2000 Cri. L.J. 3485

12

14.

Kashmirilal v. State of Haryana

(2014) 1S.C.C. (Cri.)

13

441 15.

Khan RukhsenaBanoo v.Asstt.Collector of

1994 Cri. L.J. 785

3

Customs 16.

Kulwinder Singh v. State of Punjab

(2015) 6 S.C.C. 674

10

17.

M. Nityanandam v. State

2002 Drug Cases

2

(Narcotics) 681 18.

Makhan Singh v. State of Haryana

2015 Cri.L.J. 3282

12

(S.C.) 19.

Mohan Lal v. State of Rajasthan

2015 Cri. L. J. 2811

7

20.

Murlidhar Yadav v. State of Maharashtra

1978Mh.L.J.609

21

21.

Navdeep Singh v. State of Haryana

CRM No.16764 of

14

2014. 22.

Ramesh Harijan v. State of UttarPradesh

(2012) 5 S.C.C. 777

9

23.

Ramesh Kumar v. State of Himachal Pradesh

2002 Cri. L.J. 1880

12

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Satyavir Singh Rathi v. State thr. C.B.I.

2011 Cri. L. J. 2908

R 47 21

(S.C.). 25.

Sriskandaraja v. State

2014-2-L.W.(Crl.)515

21

26.

State of Haryana v. Asha Devi

2015 Cri. L.J. 3406

4

27.

State of Madhya Pradesh v.Gobbar Singh

1996 Drugs Cases 167

1

28.

State of Punjab v. Baldev Singh

A.I.R. 1999 S.C. 2378

15

29.

SupapornPatsak v. State

2015 (6) A.D.R. 638

11

30.

Vijaysinh Chandubha Jadejav. State of Gujarat

(2011) 1 S.C.C. 609.

14, 16

31.

Vinod Dwivedi v. State of M.P.

2012 Cri. L. J. (NOC)

10

160 (M.P.) 32. Vutukuru Lakshmaiah v.State of Andhra Pradesh

2015 (2) Crimes 349

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STATEMENT OF JURISDICTION The Hon’ble High Court of Punjab and Haryana is empowered to hear this appeal by virtue of § 36B1 of the Narcotic Drugs and Psychotropic Act, 1985 which deals with appeal from Special Court r/w § 374(2)2 of the Code of Criminal Procedure, 1973 which deals with appeal against conviction.

1

36B. Appeal and revision.The High Court may exercise, so far as may be applicable, all the powers conferred by Chapters XXIX and XXX of the Code of Criminal Procedure, 1973 (2 of 1974), on a High Court, as if a Special Court within the local limits of the jurisdiction of the High Court were a Court of Session trying cases within the local limits of the jurisdiction of the High Court. 2 374. Appeals from convictions. (1) Any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court. (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. (3) Save as otherwise provided in sub-§ (2), any person,(a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first class or of the second class, or (b) sentenced under § 325, or (c) in respect of whom an order has been made or a sentence has been passed under § 360 by any Magistrate, may appeal to the Court of Session.

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STATEMENT OF FACTS I. TRIAL AND APPEAL 1. Satnam Singh, Balbir Singh and Kuldeep Kaur were tried by the Special Court for offences under NDPS Act, 1985. As a result, Satnam Singh and Balbir Singh were convicted and Kuldeep Kaur was acquitted. Dissatisfied by the decision of the trial court, both the convicts have preferred an appeal in the Punjab and Haryana High Court. II. PROSECUTION VERSION AT THE TRIAL 2. Both the Appellants were halted at Naka at around 7:30 p.m. on 8th of January for the search of the vehicle. Satnam Singh hesitated for the search. Nevertheless, the search was conducted and a bag was found in the rear of the car. The search of the bag was conducted in the presence of two independent witnesses, Deena Nath and Sardul Singh, from which 1950 grams of opium was found. Satnam Singh ran away from the spot. Thereafter, personal search of Balbir Singh was conducted after giving him a due option of being searched in front of Magistrate or Gazetted Officer. He submitted to search by police officer. 80 grams of opium was found from him too. 3. All the material was taken to the police station and the matter was reported to the SHO. FIR was registered in the morning of 9th of January. Satnam Singh was arrested from his home. The seized material was sent to FSL for examination. After due investigation and interrogation, police report was filed under § 173(2) of CrPC. Trial was commenced and prosecution tried to base its case by examining its witnesses, submitting the reports of

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FSL, submitting the ownership proof of vehicle in the name of Kuldeep Kaur and tendering the copy of judgment regarding the previous conviction of Balbir Singh in 2005. Examination of all the accused was also done u/s 313 of CrPC. III. DEFENCE VERSION AT THE TRIAL 4. The defence pleaded that the accused have been falsely implicated. As there was a dispute between Satnam Singh and one Shamsher Singh regarding boundary wall, which Shamsher Singh encroached upon taking benefit of his absence. He was a person with influential links. 5. Satnam Singh went to the police station to report about the said incident. His complaint was marked by SHO to SI Hakam Singh. He asked Satnam Singh to meet him at the Naka Duty in the evening. When he actually went there, he was taken to the police station and was put in lock up. 6. Sardul Singh deposed on behalf of the defence and said that he did not witness any search and his signatures on some papers were taken on the next day. 7. Defence pleaded that Deena Nath is a gambler and a stooge of police. It also pleaded that Hakam Singh was out to favour Shamsher Singh. IV. DECISION OF SPECIAL COURT 8. The Special Court, after considering all the material on record, convicted Satnam Singh and Balbir Singh of offences u/s 8(c) and 18(c). Balbir Singh was also convicted u/s 31 of NDPS Act, 1985. The court acquitted Kuldeep Kaur of all charges. WRITTEN SUBMISSION ON BEHALF OF RESPONDENT

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ISSUES RAISED THE RESPONDENT RESPECTFULLY ASKS THE HON’BLE PUNJAB & HARYANA HIGH COURT, THE FOLLOWING QUESTIONS:

ISSUE-I WHETHER THE RESPONDENT HAS PROVED THE ALLEGED OFFENCE AGAINST THE APPELLANTS? ISSUE-II WHETHER THE APPELLANTS HAVE BEEN FALSELY IMPLICATED? ISSUE-III WHETHER THE PROCEDURE ALLEGED TO BE ADOPTED IN SEARCH AND SEIZURE STANDS THE SCRUTINY OF LAW? ISSUE-IV WHETHER THE PROCEDURAL SAFEGUARDS UNDER § 50 OF NDPS ACT, 1985 HAVE BEEN COMPLIED WITH? ISSUE-V WHETHER THE ENHANCEMENT OF SENTENCE BASED ON PREVIOUS CONVICTION IS VALID?

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SUMMARY OF ARGUMENTS ISSUE-I WHETHER RESPONDENT HAS ESTABLISHED THE COMMISSION OF ALLEGED OFFENCE AGAINST THE APPELLANTS? It is submitted that all the necessary essentials to prove the offences under the NDPS Act have been satisfied which are presence, conscious possession and recovery of the material. Hence, the conviction of both the Appellants should be upheld and they should be convicted u/s 8 (c) and 18(c) of the NDPS Act, 1985. ISSUE-II WHETHER THE APPELLANTS HAVE BEEN FALSELY IMPLICATED? It is submitted that no false case has been planted against the Appellants. There is no delay in filing the FIR. And the delay in sending the samples to FSL, Chandigarh has not caused any prejudice to the accused. Moreover, there are certain discrepancies in the defence version itself which create doubt in their story. ISSUE-III WHETHER THE PROCEDURE ALLEGED TO BE ADOPTED IN SEARCH AND SEIZURE STANDS THE SCRUTINY OF LAW OR NOT? It is submitted that the procedure adopted stands the scrutiny of law as one witness has turned hostile and there are certain facts which he himself has admitted. Secondly, the other witness is an independent and respected witness as required by CrPC and his independence cannot be

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doubted on mere allegations. Lastly, even if the statement of both the witness is kept out of consideration then also, conviction can be based solely on official witnesses. ISSUE-IV WHETHER THE PROCEDURAL SAFEGUARDS UNDER § 50 OF NDPS ACT, 1985 HAVE BEEN COMPLIED WITH OR NOT? It is submitted that it was not required to comply with § 50 as it was a chance recovery. Moreover, § 50 has no application in case of search of a vehicle. Even if, it needed to be complied with, then also, there is no prescribed format in which the person to be searched should be informed about his right and in the light of decided judgments of the Hon’ble SC it is compliance of § 50 and the right need not be informed in writing. Thus, the requirements under § 50 have been complied with. ISSUE-V WHETHER THE ENHANCEMENT OF SENTENCE BASED ON PREVIOUS CONVICTION IS VALID? It is submitted that the charge for previous conviction was duly framed after the conviction for subsequent offence was upheld as per due criminal procedure. In arguendo, even omission to frame charge is curable if the accused had knowledge of what he is being tried for and the mode of trial does not change. Also, there was proper evidence on record as proof of his previous conviction. And, no prejudice has been caused due to questions asked under Section 313 Cr.P.C.

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ARGUMENTS ADVANCED

MOST RESPECTFULLY SHOWETH:

I.

WHETHER RESPONDENT HAS ESTABLISHED THE COMMISSION OF ALLEGED OFFENCE AGAINST THE APPELLANTS?

1. It is submitted that all the necessary components to prove the offences under the NDPS Act

have

been

proved

and

hence,

the

conviction

should

be

upheld.

A. THAT THE APPELLANTS WERE PRESENT AT THE SPOT 2. It is humbly submitted that the Appellants, namely Satnam Singh, Appellant No. 1 and Balbir Singh, Appellant No. 2, have themselves averred in their written submission that they were on their return journey from Nabha to Patiala at about 7 pm on 8th January, 2015 and thereafter halted at the Police Naka near Bhakra Nehar Bridge on Patiala-Nabha Road. According to § 56 of Indian Evidence Act3, their presence on the spot is not controverted, thus established.

B. THAT THE APPELLANTS WERE IN CONSCIOUS POSSESSION OF THE CONTRABAND 3. It is humbly submitted that possession is made of two elements; 'corpus' and 'animus'. The prosecution is required to prove the physical control and then the knowledge will be

3

Facts admitted need not be proved. —No fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings: Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.

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presumed unless disproved by the accused.4 Possession in order to justify a conviction need not necessarily be in one's exclusive possession. A person can be in possession jointly with others. If the contraband was found in the joint possession of two persons, it can be presumed that both are in possession of the article. The prosecution, no doubt, should prove that each of the accused had either physical or constructive possession of the property and that one or more of them had possession thereof either physical or constructive on behalf of themselves and the other accused to the knowledge of the latter.5 4. It is humbly submitted that when the Appellants were signaled to stop at a Police Naka, they showed mild resistance, by making an excuse of some urgent work in Patiala.  Appellant-1: That a handbag was lying in the boot of the vehicle, white-colored Toyota Fortuner bearing registration no. PB 11 XZ 2345. Sub-Inspector Hakam Singh asked Satnam Singh (Accused 1) to open the bag. Showing similar resistance yet again, he remarked that the bag contained nothing else but clothes and prevaricated checking of the bag which gave rise to suspicion.  Appellant-2: That it is true that Appellant-2 said that he knew nothing about narcotic found in the vehicle under seize. Undeniably, it is seen that such statements are made in almost every case. It is for this reason that the law has made specific provision under which any person found in possession of substance that come within the ambit of NDPS Act6 shall be presumed to have knowledge of

4

State of Madhya Pradesh v.Gobbar Singh, 1996 Drugs Cases 167. M. Nityanandam v. State, 2002 Drug Cases (Narcotics) 681. 6 Presumption from possession of illicit articlesIn trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of(a) Any narcotic drug or psychotropic substance or controlled substance; (b) Any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated; (c) Any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance; or (d) Any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic 5

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the nature of the contraband.7 5. The burden of proof resting on accused cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must be further shown that the explanation is a true one. The words ‘unless the contrary is proved’ which occur in this provision make it clear that the presumption has to be rebutted by proof and not by a bare explanation which is merely plausible. Unless therefore the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted.8 6. The Apex Court repelling the contention in the said9 case (in which opium was found in the rear of the car when the Appellant was driving himself) that the said act would not establish conscious possession, held that in the factual scenario of the present case, not only possession but conscious possession has been established.

C. THAT THE APPELLANTS HAD A CULPABLE STATE OF MIND 7. It is submitted that § 35 of NDPS Act, 198510 provides that the Court shall presume existence of such mental state when exclusive conscious possession is established. Under § 4 of Indian Evidence Act “Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved”. So

drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily. 7 Khan RukhsenaBanoo v.Asstt.Collector of Customs, 1994 Cri.L.J. 785 (Bom.) (D.B.). 8 Dibyajyoti De, Guide to Narcotic Drugs and Psychotropic Substances Act 685 (Wadhwa& Co., Nagpur 2003). 9 Dharampal Singh v State of Punjab, (2010) 9 S.C.C. 608. 10 Presumption of culpable mental state.– (1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Explanation -- In this § "culpable mental state" includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact. (2) For the purpose of this §, a fact is said to be proved only when the Court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability".

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the court has no option but to presume that the accused was in conscious possession of the contraband.  Appellant-1: It is humbly submitted that when the police seized a heavy recovery of two kg opium, Appellant-1 absconded from the spot, while the officers were busy in searching for further recovery. It has been held in a case11, regarding absconding accused that there are positive statements by several prosecution witnesses that he ran away on seeing the police party and these statements have withstood the test of cross examination as well. Further, no other evidence was led to disprove the fact of running away of accused. So, we are of the view that the High Court and the Trial Court is based on conjecture and assumption.  Appellant-2: That the Appellant after been given notice under § 50 of NDPS Act, was personally searched through which a packet of opium of about 50 gm was found. Moreover, during investigation it was found that he had agreed to sell off the opium brought from Rajasthan by Appellant-1 which was delivered to him during the return journey to Patiala from Nabha on 8th January, 2015. 8. That similarly has been held in the case12 where a bag was kept in the rear seat of the car which contained poppy husk to which the Court held that from the recovery of poppy husk from that car, it is believed that the accused were in possession of poppy husk. Under these circumstances and as per § 35 of the Act, it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as offences in that prosecution. The degree of burden of proof is 'beyond a reasonable doubt'.

11 12

State of Haryana v. Asha Devi, 2015 Cri. L.J. 3406. Gian Chand v State of Haryana, (2013) 14 SCC 420.

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D. THAT THE RECOVERY OF THE CONTRABAND WAS AFFECTED FROM THE APPELLANTS 9. It is submitted that as per §71 of Indian Evidence Act13, other evidence can be lead to prove the execution of the document so that the fate of the attested document does not lie at the mercy of an attesting witness. If he turns hostile other evidence may be given. Such document may then be proved in the same manner as documents not required to be attested. Before the Section can be applied it is necessary to comply with § 68 Evidence Act, and to call as a witness one at least of the attesting witness. The principle is well settled that the Court may take into consideration the circumstances of the case and come to the conclusion that they are willfully misleading the Court and discard their testimony and pronounce in favour of the document.14  Recovery Memo: It is a known fact that signature of accused is not required on the recovery memo15. The recovery memo of two packets has been duly signed by Sardul Singh (PW-1) and Sardul Singh (PW-2) as independent witnesses.  Search Memo: It is the undisputed fact that a written notice is not necessary and an oral explanation is good enough.16 During personal search of Appellant-2, apart from the personal belongings, opium like substance of about 50 grams. Search memo was prepared and signed by the said independent witnesses and also by SI Hakam Singh and Head Constable Narotam Singh. 10. Thus, the Respondent has produced various witnesses who have been subjected to the hot-seat of cross-examination. Still the Appellants could not discredit their 13

Proof when attesting witness denies the execution – If the attesting witness denies or does not recollect the execution of the document its execution may be proved by other evidence. 14 2 Dr. V. Kesava Rao, Sir John Woodroffe& Syed Ameer Ali’s Law Of Evidence 3236 (18th ed. Lexis Nexis Butterworths Wadhwa, Ngpur 2008). 15 Gurpreet Singh and another v. State of Punjab, 2015 Cri.L.J. (N.O.C.) 179 (P. & H.). 16 2001 Cri.L.J. 4002.

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trustworthiness.

II.

WHETHER ANY FALSE CASE HAD BEEN IMPLICATED AGAINST THE APPELLANTS?

11. It is submitted that no false case has been planted by the Respondent and it is a genuine recovery that has taken place. The case of the prosecution must not be struck down

merely

because

there

are

some

procedural

flaws.

A. THAT NO PREJUDICE HAS BEEN CAUSED DUE TO DELAY IN F.I.R. 12. In a case17 the incident allegedly took place on at 08:35p.m. The distance between the place of incident and the police station concerned was 3 kilometers. It was held that there appears to be no delay in lodging the FIR. 13. It is humbly submitted that the search proceedings concluded late at night. The fact that one of the Accused-1 was absconding, the police team was on search for him in the foggy night of January 8-9, 2015. The matter had to be reported to the Station House Officer of the Central Police Station Patiala, Inspector Joginder Singh. Therefore, mere delay of few hours cannot be the relevant fact to doubt the prosecution entire material evidence. The Apex Court has held18 that mere delay in lodging F.I.R is not necessarily, as a matter of law, fatal to the prosecution; delay can be condoned if there is necessary explanation. Delay per se does not render prosecution case doubtful, absence of explanation does.19

17

Gurumukh Singh v. State of Uttaranchal, 2015 Cri. L. J. 4211 (Utt.). Apren Joseph v. State of Kerala, A.I.R. 1973 S.C. 1. 19 B. Ramaih v. State of Karnataka, (2014) 9 S.C.C. 365. 18

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B. THAT DELAY IN SENDING SAMPLES IS OF INCONSEQUENCE 14. It is humbly submitted that the seized articles were properly sealed on the spot with a distinguishable mark on it, being recorded in a recovery memo. The same was weighed with seals intact and the case property was handed over with the seals intact to the officer-in-charge of the said police station who assigned the same for proper custody in inventory room (Malkhana). Thus, when prosecution has established the link from recovery till examination of sample, every allegation of false implication needs to be overruled.20 15. In a case21 where the samples were sent after delay of 40 days. It was held that delay has no consequence for the fact that the recovery of the said sample from the possession of the appellant stands proved and established by cogent and reliable evidence led in the trial. It has also come on evidence that till the date the parcels of sample were received by the Chemical Examiner, the seal put on the said parcels was intact. 16. In a case22 it was contended that the seized articles were not sent immediately for chemical examination. It was held that the seal being intact, the description of the case number and the impression of seal having been fixed on memo of recovery, there is no reason or justification to discard the prosecution case on the ground of delay on this score.

C. THAT THERE ARE MAJOR DISCREPANCIES IN THE DEFENCE VERSION 17. It is humbly submitted that there are material contradiction in Appellants’ case.  Political Link Theory: It is humbly submitted that it is not believable that mere fact that his neighbour is an influential person can be a reason for false 20

Jeet Ram v State of H.P., 2012 Cri. L. J. (N.O.C.) 2 (H. P.). Hardip Singh vs State of Punjab, A.I.R. 2009 S.C. 432. 22 Mohan Lal vs State of Rajasthan, 2015 Cri. L. J. 2811. 21

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implication of the appellant. There is also no material on record to show that as to what was the status of Shamsher Singh, as to whether he was in a position to exercise any influence over police officials of the area. The Appellant has not moved any representation to the higher police authorities against S.I. Hakam Singh for his false implication. Nor, were they able to extract anything from the cross-examination PW-3 to establish any nexus between S.I. Hakam Singh and Shamsher Singh.  One Person at two different spots: It is the case of Appellants that they were put up in lock up along with their vehicle from the naka. However, Appellant1 was arrested from his house in the evening on January 9, 2015 with due procedure.  Copy of Complaint: It is humbly submitted that Appellants have woven up their story around a complaint filed against their neighbor about an entirely alien matter establishing no link to the gravity of the charge alleged against them. According to § 9123, which incorporates the rule of best evidence states that in case of writing all proceedings and contemporaneous oral expressions of the thing are merged in the writing or displaced by it. In case of secondary evidence the rule is “copy of a copy” is not admissible.24 § 77 of Evidence Act25 states that public documents may be proved by production their certified copies. In the instant case, neither the certified copy nor the original copy of complaint is produced. Therefore, it is inadmissible in evidence. 23

Evidence of terms of contracts, grants and other dispositions of property reduced to form of documents.—When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence1 shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained. 24 § 63 of Indian Evidence Act, 1872 25 Proof of documents by production of certified copies.—Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.

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WHETHER THE PROCEDURE ALLEGED TO BE ADOPTED IN SEARCH AND SEIZURE DOES STANDS THE SCRUTINY OF LAW OR NOT?

18. It is submitted that a proper procedure has been followed during the search and seizure of the vehicle and the person of Appellant No. 2.

A. THAT NO RELIANCE CAN BE PLACED ON THE TESTIMONY OF PW-2 19. The Apex Court has observed that seizure witnesses turning hostile may not be very significant by itself, as it is not an uncommon phenomenon in criminal trials, particularly in cases relating to NDPS Act.26 20. In a case27 in which one independent witness stated that he signed on blank papers as per direction of the police officer and other independent witness was declared hostile, plea of false implication was held to be untenable by the Court as there was nothing shown by accused on the basis of which the testimonies of the witnesses could be treated as untrustworthy. The court found that it absolutely unimpeachable. 21. In the instant case, DW-1 has never disputed his signature, so this fact stands proved by the admission of the writer himself that he signed on the Recovery memo and the Search memo. It has been held in the case28 that any portion of evidence consistent with case of prosecution or defence can be relied upon. Seizure/recovery witnesses though turning hostile, but admitting their signatures/thumb impressions on recovery memo, they could be relied on by prosecution. 22. In a case29 independent witnesses on their depositions turned hostile. However, both the witnesses had categorically admitted their signatures on all the papers. It was held

26

Ashok @ Dangra Jaiswal v. State of Madhya Pradesh, (2011) 5 S.C.C. 123. Ananda Biswas and another v. State of West Bengal, 2015 Cri. L. J. (N.O.C.) 219 (Cal.). 28 Ramesh Harijan v. State of UttarPradesh, (2012) 5 S.C.C. 777. 29 Vinod Dwivedi v State of M.P., 2012 Cri. L. J. (N.O.C.) 160 (M.P.). 27

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that merely because independent witnesses of search and seizure turned hostile, Police Official witnesses could not be disbelieved for extending acquittal to accused. Hence, conviction of accused, proper. 23. It is humbly submitted that the fact that Sardul Singh, PW-2/ DW-1 has been won over by the Defence and it is not appropriate to rely on his evidence. He has been won over by the Appellants has been substantiated inasmuch as he has been examined as defence witness. Similarly was observed in Kulwinder Singh v State of Punjab.30 24. Moreover, it is already established that DW-1 was present as witness as the scene of crime. The onus of proof lies upon him to show his presence elsewhere under § 11 of Indian Evidence Act31 . It is submitted that there is no force behind the deposition of DW-1 that he was not present at the scene of the crime when he has never denied identification of both the accused. 25. It is submitted that burden of proof lies upon DW-1 under § 106 of Indian Evidence Act as to explain the circumstances or compulsions in which they had to sign the blank papers. The Special Court ought to have looked into it in proper perspective, thus convicting the accused of the alleged offence. 26. Even if, the court finds that his statement is not credible, his statement may be kept out of consideration and case can be based solely on official witnesses and the other independent witnesses. B. THAT PW-1 IS AN INDEPENDENT AND RELIABLE WITNESS 27. It is humbly submitted that Patiala-Nabha road is a Highway road, generally deserted and isolated at evening time. Moreover, the seizure was effected in the month of 30

(2015) 6 S.C.C. 674. When Facts not otherwise relevant become relevant – Facts not otherwise relevant, are relevant. (1) if they are inconsistent with any fact in issue or relevant fact; (2) if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable. 31

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January when winter is at its peak. It is a tough break situation to request people to bear witness to the search proceeding on a highway as people generally show disinclination to involve themselves with any criminal proceeding. 28. Thus, learning from past jarring experiences to arrange independent witnesses, the Sub-Inspector had to call on phone one Deena Nath, a resident of nearby village Ranbirpura to bear as independent witness in the search and seizure proceedings. In a case32 where there was recovery of contraband from airport by DRI. Assistant Supervisor of the Airport, who was also the witness in another case of the DRI, was made as a witness in the instant case. It was held that Raids by the DRI are largely effected at the International Airports and this is a well-known fact. It is also fairly common that persons who are easily available in this sector would be requisitioned as public witnesses and in such an eventuality, PW16 having joined investigation in another prosecution (wholly unconnected with the present case) by the DRI would not make him a stock witness. A stock witness is a person who is engrained time and again by the same Department to toe the line of the prosecution without any independent information. 29. It has been held that where the facts do not show as to in how many occasions, the panch witness had stood as a panch witness and, therefore if a person happened to witness other instances that would not denude him of his independent character, would not be of any significance to the case.33 Merely because a witness had in the past appeared as a prosecution witness in two cases, would not render him to be labeled as a stock witness in the absence of any other evidence to show that he was a stock witness.34

32

Supaporn Patsak v. State, 2015 (6) A.D.R. 638. Joseph Fernandez v. State of Goa, 2000 Cri. L.J. 3485. 34 Ramesh Kumar v. State of Himachal Pradesh , 2002 Cri. L.J. 1880. 33

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30. It is humbly submitted that Police Officers have not tried to hide this fact that Deena Nath was called on phone and also that he acted as witness in few other cases (unrelated to the present case). 31. In arguendo, while not conceding the fact that PW-1 is a stock witness. The Apex Court has held that in peculiar circumstances of the case, it may not be possible to find out independent witnesses at all places at all times. Independent witnesses who live in the same village or nearby villages of the accused are at times afraid to come and depose in favour of the prosecution. 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.35 32. Also, the burden of proof to prove that Deena Nath was a gambler lies on the Appellants under § 103 of Indian Evidence Act36 lies on the Defence/Appellant which they have utterly failed to prove at trial stage.

C. THAT OFFICIAL WITNESSES ARE CREDIBLE WITNESSES 33. In the recent Supreme Court case of Baldev Singh v. State of Haryana37, it is held “Conviction can be based solely on the testimony of official witnesses if evidence of such official witnesses inspires confidence. There is no legal proposition that evidence of police officials unless supported by independent evidence is unworthy of acceptance. Evidence of police witnesses cannot be discarded merely on the ground that they belong to police force and interested in the investigation and their desire to see the success of the case.” 35

Makhan Singh v State of Haryana, 2015 Cri. L.J. 3282 (S.C.). Burden of proof as to particular fact.—The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. 37 2016 Cri. L.J. 154. 36

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34. It has been held in a case38 since the place was a secluded one, it was a public road, there is no need to make a search in the presence of independent witnesses nor is it a requirement of law. The statements of official witnesses of the recovery are consistent and confidence inspiring thus rightly acted upon by the learned trial Court. 35. In the case39 it was held that if the testimony of the police officer is found to be reliable and trustworthy, the Court can definitely act upon the same. The Court cannot disbelieve the testimony of police officials solely on the presumption that a witness from the department of police should be viewed with distrust. 36. It is submitted that the learned Special Court found the testimony of prosecution witnesses unimpeachable and without any material contradiction. Moreover, Test Triplicate memo and other documents were prepared on the spot which proves the fact of incident.

IV) WHETHER THE PROCEDURAL SAFEGUARDS UNDER §50 OF NDPS ACT, 1985 HAVE BEEN COMPLIED WITH OR NOT? 37. The Respondent submits that the Appellants were informed about their right by the police officials and the manner in which they informed the Appellants can be held to be due compliance of §50. This contention can be proved on the basis of following grounds: A. THAT THERE IS NO PRESCRIBED FORMAT IN WHICH THE RIGHT HAS TO BE INFORMED. 38. The Apex Court has never laid down any set formula as to the manner in which the right has to be informed to the person to be searched. 38 39

Hari Singh vs State of Himachal Pradesh, 2012 Cri. L. J. 2036 (H.P.). Kashmirilal vs. State of Haryana, (2014) 1S.C.C. (Cri.) 441.

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39. In Navdeep Singh v. State of Haryana40, in which the police party held a picket an option was given to be searched in the presence of a Gazetted Officer or a Magistrate. The court opined that a substantial question was put across the appellant as to whether he chooses to be searched by a Gazetted Officer or a Magistrate and stated “In our opinion, the provisions do not prescribed any set format for such notice. The essence is to appraise the accused of his legal right of being searched either by a Gazetted Officer or a Magistrate. Here, when the Appellant was apprised of his statutory rights under § 50 by PW-3 and opts to be searched by a Gazetted Officer, then he has, by necessary implication, consciously exercised his right. In that view of the matter, we cannot accept the submission of the learned counsel for the Appellant that the mandatory provisions of § 50 of the Act were breached. 40. In Vijaysinh Chandubha Jadeja v. State of Gujarat41, the Apex Court went on to saying that, “Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of § 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf.”

B. THAT IN CASE OF CHANCE RECOVERY COMPLIANCE OF § 50 IS NOT MANDATORY 41. It is humbly submitted that requirements under sub-section 1 of § 50 need not be complied with in case of chance recovery. The Constitution Bench of the Apex Court in State of Punjab v. Baldev Singh42 held, “On its plain reading, § 50 would come into place only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as

40

CRM No.16764 of 2014. (2011) 1 S.C.C. 609. 42 A.I.R. 1999 S.C. 2378. 41

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contemplated by § 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of § 50 of the Act are not attracted.” 42. In the case43, the police officers were looking for passengers who were travelling ticketless. They accidentally or unexpectedly came across drugs carried by a passenger. The Court held that this can only be described as a recovery by chance since they were neither looking for drugs nor expecting to find drugs carried by anybody. It is true that the accused behaved in a suspicious manner which resulted in his personal search being conducted Mere suspicion, even if it is 'positive suspicion' or grave suspicion cannot be equated with 'reason to believe'. We are not in agreement that it could be said or assumed that they had reason to believe or prior information that he was carrying charas or some other narcotic substance and so, before his personal or body search was conducted, the provisions of § 50 of the Act ought to have been complied with. The recovery of charas on the body or personal search of the accused was clearly a chance recovery and, in view of Baldev Singh44, it was not necessary for the police officers to comply with the provisions of § 50 of the Act. 43. It is humbly submitted that the police team were on their regular patrol duty while setting up the police naka at Patiala-Nabha Road. On seeing the police, the Accused became perplexed and prevaricated the search which aroused the suspicion of police. Thus, the Accused-2 was given option to be searched before the Magistrate or Gazetted

43 44

Officer

apprising

of

his

right

under

§

50

of

NDPS.

2015 (5) S.C.J. 58. (1999) 6 S.C.C. 172.

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C. THAT THERE IS NO NEED TO SERVE A WRITTEN NOTICE TO THE PERSON TO BE SEARCHED 44. In Vijaysinh Chandubha Jadeja v. State of Gujarat45, the Apex Court has held, “It was not necessary that the information required to be given under § 50 should be in a prescribed form or in writing but it was mandatory that the suspect was made aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate, if so required by him.” Thus, the contention that there was non-compliance of § 50 falls flat on its face and the Appellants have cooked up their own goose by raising this contention.

V. WHETHER THE ENHANCEMENT OF SENTENCE BASED ON PREVIOUS CONVICTION IS VALID OR NOT? 45. It is submitted that the enhancement of sentence is properly valid and there has been proper framing of charges and proper evidence has been tendered in the court of law. A. THAT CHARGE OF PREVIOUS CONVICTION WAS DULY FRAMED A.1. THAT FRAMING OF CHARGES IS DONE AFTER THE CONVICTION OF SUBSEQUENT OFFENCE 46. It is humbly submitted that the conjoint reading of § 211(7) Cr.P.C in the light of § 236 or § 248(3) Cr.P.C., as the case maybe, indicates that the criminal court is not permitted to frame a charge carrying the element of ‘previous conviction’ for the purpose of invoking § 75 IPC, so as to fulfil the requirement of § 211(7) of the Cr.P.C. except after the trial, on the fresh charge of such (subsequent) offence has been concluded and has resulted in finding of guilty being recorded. Court has been given discretionary power to alter or add to any charge at any time until the

45

(2011) 1 S.C.C. 609.

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pronouncement of the judgment.46 If the alteration/addition47 is such that proceeding immediately would not occasion prejudice to the accused or prosecution, the court may proceed with the trial as if the altered/added charge were the original charge. 48 47. It is submitted that the contention of the Appellants that no charge has been framed pales into insignificance as the charge has been frame according the procedural propriety, after the conviction for the subsequent offence mentioned in the instant case so that there is no question of prejudice entering into the process of trial. A.2. THAT NO PREJUDICE HAS BEEN CAUSED TO THE ACCUSED 48. In arguendo, while not conceding the fact that charge was not framed, even if we believe that charges were not framed, § 464 of Code of Criminal Procedure states that no finding or sentence pronounced or passed shall be deemed invalid merely on the ground that no charge was framed, unless, in the opinion of the Court of appeal or revision, a failure of justice has in fact been occasioned thereby. 49. In judging a question of prejudice, as of guilt, courts must act with a broad vision and look to the substance and not to technicalities; and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself.49 50. In a recent case, the Apex Court held that if, on a careful consideration of all the facts, prejudice, or a reasonable and substantial likelihood of it, is not disclosed that accused is misled due non-framing of charge, the conviction must stand; also it will

46

§ 215 Code of Criminal Procedure, 1973. § 464 Code of Criminal Procedure, 1973. 48 Shriya Gauba, Previous Conviction, Criminal Law Journal, March, 2015, 11. 49 Willie (William) Slaney v.The State Of Madhya Pradesh, 1955 S.C.R. (2)1140. 47

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always be material to consider whether objection to the nature of the charge, or a total want of one, was taken at an early stage.50 51. It is submitted that Accused/Appellant-2 had full knowledge of what he was being tried for and the fact of being tried for enhanced punishment. The prosecution has led in evidence, viz., the copy of unmarked judgment, Police Report stating the fact about undergoing rigorous imprisonment for selling opium in 2005, reference about previous conviction in Bail Orders and the questions by Special Judge about his previous

conviction

under

§

313

Code

of

Criminal

Procedure.

B. THAT THERE WAS PROPER EVIDENCE ON RECORD REGARDING PREVIOUS CONVICTION B.1.JUDGMENT UNMARKED: 52. The proviso to § 236 and § 248(3) of the Cr.PC makes it even further clear that even a reference to previous conviction or production of evidence in support, of such allegation by the prosecution is not to be allowed until the charge in the trial for the subsequent offence has been brought home. Thus, the inquiry into the charge for ‘previous conviction’ is postponed until the trial and conviction of the accused for the offence charged.51 53. Thus, even though a copy of judgment was submitted by Prosecution, the judge did not mark it as exhibit as a matter of judicial prudence as no evidence can be received with reference to previous conviction. B.2.INVESTIGATION REPORT 54. According to Rule 27.1(3), Punjab Police Rules, 1934 dealing with ‘charge sheets— preparations and scrutiny of’ states that Charge sheets shall be thoroughly scrutinized 50 51

Vutukuru Lakshmaiah v .State of Andhra Pradesh, 2015 (2) Crimes 349 (S.C.). Shriya Gauba, Previous Conviction, Criminal Law Journal, March, 2015, 11.

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by an officer of the prosecuting branch not below the rank of prosecuting subinspector that the identity and previous convictions of the accused persons have been established. It is the duty of the police, in conducting the investigation, to take proper steps to establish the identity of an accused person and to obtain and produce evidence of previous convictions against him52. As per the said rules requisitions for particular of previous convictions (Form 27.10) needs to be made early during the investigation, the details of which are provided by the officer in custody of the conviction register of the particular village. 55. It is submitted that the identity of the accused of being previously convicted is already established in the charge-sheet under § 173 submitted to the learned Court. Thus, it cannot be contended that there was no proper evidence on record or there was noncompliance of § 298 CrPC.

C. THAT THE QUESTIONS PUT TO THE ACCUSED UNDER §313 DID NOT CAUSE PREJUDICE TO THE ACCUSED/ APPELLANT-2 56. It is submitted that no prejudice has been caused to the accused when questions regarding previous conviction were asked by the judge. In the case53 it has been held that ‘the questioning of accused under § 313 Cr.P.C is not an empty formality, the essence of accusation has to be brought to the notice of the accused while examining him under § 313 Cr.P.C. The omission to put questions with regard to the charge under § 31 of the Narcotic Drugs and Psychotropic Substances Act, 1985 to the accused under § 313 Cr.P.C. definitely caused prejudiced to the accused.’

52 53

Rule 27.10 of Punjab Police Rules, 1934 Sriskandaraja v. State, 2014-2-L.W.(Crl.)515.

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57. The contention that the mind of the judge has been prejudiced holds no ground as the judgment of the Special Court is an exhaustive judgment based on appreciation of facts and law and does not suffer from any legal infirmity .The fact of previous conviction was kept out of consideration during the application of judicial mind to determine the culpability of the Accused/Appellant-2. Similarly has been held in Murlidhar Yadav v State of Maharashtra54. In any case the latest position in law appears to be that prejudice must be shown by an accused before it can be held that he was entitled to acquittal over a defective and perfunctory statement under § 313 of Code of Criminal Procedure55. Therefore, the burden of proof lies upon Appellant-2 that he there has been failure of justice. 58. It is submitted that no objection was raised at the trial stage when question regarding previous conviction were asked. The Apex Court has held “If an objection as to the 313 statement is taken at the earliest stage, the court can make good the defect and record an additional statement as that would be in the interest of all but if the matter is allowed to linger on and the objections are taken belatedly it would be a difficult situation for the prosecution as well as the accused. In the case before us, as already indicated, the objection as to the defective 313 statements had not been raised in the trial court. We must assume therefore that no prejudice had been felt by the Appellants even assuming that some incriminating circumstances in the prosecution story had been left out.”56

54

Murlidhar Yadav v State of Maharashtra, 1978Mh.L.J.609. Satyavir Singh Rathi vs State thr. C.B.I., 2011 Cri. L. J. 2908 (S.C.). 56 Ibid. 55

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PRAYER

W

HEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENT ADVANCED, REASONS GIVEN AND AUTHORITIES CITED, THIS

HON’BLE HIGH COURT

OF

PUNJAB & HARYANA

MAY BE

PLEASED TO:

TO HOLD 

THAT THE TRIAL COURT HAS RIGHTLY APPRECIATED THE FACTS OF THE CASE WHERE THE PROSECUTION HAS PROVED THE OFFENCES AGAINST THEM.



THAT THE APPELLANTS HAVE NOT BEEN FALSELY IMPLICATED IN THE CASE.



THAT THE PROCEDURE ALLEGED TO BE ADOPTED IN SEARCH AND SEIZURE STANDS THE SCRUTINY OF LAW.



THAT THE PROCEDURE SATISFIES THE SAFEGUARDS PROVIDED UNDER SECTION 50 OF THE NDPS ACT, 1985.



THAT THE TRIAL COURT HAS TAKEN THE FACTUM OF PREVIOUS CONVICTION OF APPELLANT-2 WITH PROPER EVIDENCE ON RECORD. TO PASS



THAT CONVICTION OF APPELLANT-1 AND APPELLANT-2 IS PROPER TO UPHOLD



THE IMPUGNED JUDGMENT OF THE LEARNED SPECIAL COURT, PATIALA. MISCELLANEOUS AND ANY OTHER RELIEF THAT THIS HON’BLE COURT MAY BE PLEASED TO GRANT IN THE INTERESTS OF JUSTICE, EQUITY AND GOOD CONSCIENCE

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

COUNSELS FOR RESPONDENT

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