3rd NATIONAL MOOT COURT COMPETITION, 2019

SOL 03

3rd NATIONAL MOOT COURT COMPETITION, 2019

BEFORE THE HON’BLE HIGH COURT OF

VIMACHAL PRADESH

IN THE MATTER OF

CRIMINAL APPEAL NO. ___/2019

STATE OF V.P. .................................................................................APPELLANT

VS
DHARAM PAL ……………………..............................................RESPONDENT

APPEAL INVOKED U/S 378 OF

CRIMINAL PROCEDURE CODE, 1973

__________________________________________________________________

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS

LORDSHIP’S COMPANION JUSTICES OF THE HON’BLE HIGH
COURT OF VIMACHAL PRADESH

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TABLE OF CONTENTS

HEADINGS PAGE NO.

INDEX OF AUTHORITIES 4-8
STATEMENT OF JURISDICTION 9
STATEMENT OF FACTS 10
STATEMENT OF ISSUES 11
SUMMARY OF ARGUMENTS 12-13
ARGUMENTS ADVANCED 14-27
I. WHETHER THE APPEAL FILED AGAINST 14-15
ACQUITTAL IS MAINTAINABLE?

I.I. THAT THE APPEAL FILED U/S 378 IS 14-15

MAINTAINABLE.

I.II. THAT THE LEAVE U/S 378(3) SHOULD BE 15

GRANTED.

II. WHETHER THE DECISION GIVEN BY THE TRIAL 16-20

COURT WAS INCONSISTENT WITH THE EVIDENCES?

II.I. THAT THE STATEMENTS MADE BY 16-18

OFFICIAL WITNESSES ARE CREDIBLE IN THE
COURT OF LAW.

II.II. THAT THE HOSTILITY OF INDEPENDENT 18-20

WITNESSES IS PALPABLY WRONG BASIS FOR
THE DECISION.

III. WHETHER THE POLICE PARTY HAS CONDUCTED 21-25

INVESTIGATION INCOMPLIANCE WITH PROVISIONS
OF NDPS ACT?

III.I. THAT THE PROCEDURE OF SECTION 42 21-22

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WAS DULY FOLLOWED BY THE POLICE PARTY.

III.II. THAT THE PROVISION OF SECTION 50 23-25

WAS DULY COMPLIED BY THE POLICE PARTY.

IV. WHETHER THE RIGHT TO PRIVACY OF THE 26-27

ACCUSED WAS INFRINGED?

IV.I. THAT THE RIGHT TO PRIVACY UNDER 26-27

ARTICLE 21 IS NOT AN ABSOLUTE RIGHT.

PRAYER 28

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INDEX OF AUTHORITIES

INDIAN CASE LAWS

Sr. No. Title Citation Page(s)

1. Ajit Singh v. State of Punjab 1982 Cri.L.J. 522 16

2. Amar Chand v. State of Madhya Pradesh 2005 Cri.L.R. 501 18

3. Amarjit Singh v. State 1994 Cri.L.J. 1987 21

4. Arif Khan v. State of Uttarakhand 2018 SCC Online SC 23

459

5. Arun Kumar v. State of Uttar Pradesh (1989) Cr.L.J. 1460 14

6. Ashok v. State of Rajasthan (1990) Cr.L.J. 2276 14

7. Ashok Kumar Sharma v. State of Himachal 2008 Cr.L.J. (NOC) 22

Pradesh 1165 (DB)

8. Ashok Kumar Sharma v. State of 2007 Cri.L.J. 1734 25

Rajasthan

9. Bhand v. State of Assam (1984) Cr.L.J. 217 17

10. Bhim Nahak v. State of Orissa 1992 Cri.L.J. 1140 19

11. Brahm Swaroop v. State of Uttar Pradesh A.I.R. 2011 S.C. 280 15

12. Chandubha Jadeja v. State of Gujarat 2011(1) SCC 609 23

13. Deepak Yadav v. State 2018 Cri.L.J. 4736 19

14. Dharam Deo Yadav v. State of Uttar (2014) 5 S.C.C. 509 17

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Pradesh

15. Edward Samuel v. State of Himachal 2013 Cri.L.J. 4706 16

Pradesh

16. Girja Prasad v. State of Madhya Pradesh A.I.R. 2007 S.C. 3106 15

17. Govindaraju v. State A.I.R. 2012 S.C. 1292 20

18. HarBacchan Singh v. State of Punjab 2002 Cri.L.J. 3016 21

19. Hemudan Nanbha v. State of Gujarat A.I.R. 2018 S.C. 4760 19

20. Ismail v. State of Kerala 1991 Cri.L.J. 2945 19

21. Jaichand v. State of Chhatisgarh 2018 Cri.L.J. 3501 22

22. James Albert v. State of Himachal Pradesh 2011 Cri.L.J. 4654 16, 19

23. Kamaljit Singh v. State 2003 A.I.R. S.C.W. 15

4899

24. Kanwar Pal v. State 2017 Cri.L.J. 2124 24

25. Kharak Singh v. State of U.P AIR 1997 SC 568 26

26. Kolhapur Canesugar Works Ltd. v. Union 2000 (2) S.C.C. 119 17
of India

27. Local Govt. v. Nainsukh A.I.R. 1933 Nag. 99 22

28. Maneka Gandhi v. Union of India (1978) 1 SCC 248 27

29. Manidhar Shinde v. State of Maharashtra 2001 (2) Mah.L.J. 615 21

30. Mrs. Neelam Katara v. Union of India I.L.R. (2003) 2 Del 377 20

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31. Nabakumar v. State of West Bengal A.I.R. 1974 S.C. 777 16, 17

32. Pala v. State of Punjab (1972) 2 S.C.C. 640 15

33. Paramjeet Singh v. State of Uttrakhand (2010) 10 S.C.C. 439 20

34. Piush Raj v. State of Madhya Pradesh 2001 (1) EFR 59 17

35. Promil Singh v. State of Rajasthan 2001 (1) Raj. Cri. 282 21

36. Raghunath Ramnath Zolekar v. State of 2002 Cri.L.J. 148 24

Maharashtra

37. Raj Nain v. State of Madhya Pradesh (1992) 2 E.F.R. 119 17

38. Rajat Prasad @ Naibudin v. State of 2002 (1) Raj. Cri. C. 17

Rajasthan 404

39. Ram Babu v. State of Orissa 2013 (55) O.C.R. 21 21

40. Ramadhan Singh v. State of Uttar Pradesh (1995) 3 Crimes 41 22

(All)

41. Roshy v. State of Kerala 2005 Cri.L.J. 3657 18

42. S.C. Goel v. State through C.B.I 2017 Cri.L.J. 536 20

43. S.K. Raju v. State of West Bengal A.I.R. 2018 S.C. 4255 24

44. Sekhar Suman Verma v. Superintendent of A.I.R. 2016 S.C. 3193 24

N. C. B

45. Sheikh Ashraf v. State of Maharashtra 1997 Cri.L.J. 3031 24

46. Satbir Singh v. State of Punjab A.I.R. 1977 S.C. 1294 14

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47. Supreme Court Employees’ v. Union of (1989) 37 Cri.L.T. 334 22

India

48. State v. Raijibhai A.I.R. 1960 S.C. 24 16

49. State v. Ram (1978) Cr.L.J. 601 22

50. State of Haryana v. Janail Singh 2004 A.I.R. S.C.W. 22

2962

51. State of Madhya Pradesh v. Ghanshyam 2008 Cri,L.J. 107 18

52. State of Maharastra v. Jayantilal Popatlal 1979 CriLJ 1231 26

Chandrani

53. State of Punjab v. Ajaib Singh (1995) 2 S.C.C. 486 15

54. State of Punjab v. Baldev Singh (1999) 6 SCC 172 23

55. State of Punjab v. Nachhattar Singh 1982 Cri.L.J. 1197 19

56. State of Rajasthan v. Islam A.I.R. 2011 S.C. 2317 14

57. State of Rajasthan v. Ram Chandra A.I.R. 2005 S.C. 2221 24

58. State of Rajasthan v. Ramdeen A.I.R. 1977 S.C. 1328 15

59. State of Rajasthan v. Shera Ram A.I.R. 2012 S.C. 1 14

60. Suga Ram v. State of Rajasthan A.I.R. 2006 S.C. 3258 15

61. Tota Singh v, State of Punjab (1987) 2 S.C.C. 529 14

62. Umedbhai v. State of Gujarat A.I.R. 1978 S.C. 424 14

63. Union of India v. Satrohan 2008 (8) S.C.C. 313 21

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64. Velayudhan v. State of Kerala A.I.R. 1961 Ker. 8 17

STATUTES AND RULES

• CONSTITUTION OF INDIA, 1950.
• CODE OF CRIMINAL PROCEDURE, 1973.
• INDIAN EVIDENCE ACT, 1872.
• NARCOTIC, DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985.

BOOKS
• DR. S.R. MYNENI, DRAFTING, PLEADING & CONVEYANCING (1ST ED. 2008)
• DURGA DAS BASU, CRIMINAL PROCEDURE CODE (5TH ED. 2014)
• BATUK LAL, THE LAW OF EVIDENCE (21ST ED. 2015)

LEXICONS
• BRIAM A. GARNER, BLACK’S LAW DICTIONARY (10TH ED. 2014)
• P RAMANATHA AIYAR, THE MAJOR LAW LEXICON (4TH ED. 2010)
• SALLY WEHMEIER, OXFORD ADVANCED LEARNER’S DICTIONARY (7TH
ED.2005)
• DAULAT RAM, PREM’S JUDICIAL DICTIONARY, VOL I, VOL II (5TH ED., 2002)

IMPORTANT DEFINITION

• APPELLANT FOR THE PURPOSE OF THIS MEMORANDUM SHALL STAND FOR

STATE OF V.P.
• RESPONDENT FOR THE PURPOSE OF THIS MEMORANDUM SHALL STAND
FOR DHARAM PAL.

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STATEMENT OF JURISDICTION

CRIMINAL APPEAL NO. ___/2019

The Appellant has approached this Hon’ble Court under Section 378 of Criminal Procedure
Code, 1973.1

1
378. Appeal in case of acquittal.
1) Save as otherwise provided in sub- section (2) and subject to the provisions of sub- sections (3) and (5), the
State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court
from an original or appellate order of acquittal passed by any Court other than a High Courtor an order of
acquittal passed by the Court of Session in revision.
2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi
Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of
1946), or by any other agency empowered to make investigation into an offence under any Central Act
other than this Code, the Central Government may also direct the Public Prosecutor to present an appeal,
subject to the provisions of sub- section (3), to the High Court from the order of acquittal.
3) No appeal under sub- section (1) or sub- section (2) shall be entertained except with the leave of the High
Court.
4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an
application made to it by the complainant in this behalf, grants special leave to appeal from the order of
acquittal, the complainant may present such an appeal to the High Court.
5) No application under sub- section (4) for the grant of special leave to appeal from an order of acquittal shall
be entertained by the High Court after the expiry of six months, where the complainant is a public servant,
and sixty days in every other case, computed from the date of that order of acquittal.
6) If in any case, the application under sub- section (4) for the grant of special leave to appeal from an order of
acquittal is refused, no appeal from that order of acquittal shall lie under sub- section (1) or under sub-
section (2).

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STATEMENT OF FACTS

BACKGROUND OF THE CASE

On 1st August 2019 the police party headed by Dila Ram ASI was on routine traffic checking
near Taraghat in Vimachal Pradesh was telephonically informed by someone that near vicinity
many educational institutes and drugs being supplied by some unidentified youth.
It was 1:30 PM, Dila Ram ASI along with Head Constable reached their. It was around 2:30 PM,
that scooter bearing no XYZ came from Taraghat along with Pillion rider and after seeing police
party scooterist got baffled and skipped off.

CIRCUMSTANCES LEADING TO DISPUTE

Same Day The pillion rider escaped and on the personal search of accused Dharam Pal
some black substance was recovered which was kept hidden by accused and
tied against his belly. It smelt like CHARAS. It was found to be 2 kg.
10/08/2019 The sample parcels of 25 grams were sent for Forensic examination to the
CFSL through constable. The Forensic Laboratory found that sample so sent
was of CHARAS.
The accused was charge sheeted under sec 2 (c) of NDPS Act 1985. But the
independent witnesses did not support the prosecution case and ASI Dila
Ram and constable supported the case.
Decision of The accused on the closure of the evidence was examined under Sec 313 of
Trial Court CrPC. On the ground that, primarily there was non-compliance of sec 42 of
the act and secondly independent witness did not support it and there was
non-compliance of sec 50 NDPS Act.

MATTER BEFORE HIGH COURT

The State did not feel satisfied from the judgement of the acquittal and filed an appeal in
Honourable High Court of Vimachal Pradesh on the ground of that the points on which the
accused has been acquitted are not convincing as there was proper compliance of Sec 42 and 50
NDPS Act.

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IDENTIFICATION OF ISSUES

ISSUE 1
WHETHER THE APPEAL FILED AGAINST ACQUITTAL IS MAINTAINABLE?

ISSUE 2
WHETHER THE DECISION GIVEN BY THE TRIAL COURT WAS INCONSISTENT WITH
THE EVIDENCES?

ISSUE 3
WHETHER THE POLICE PARTY HAS CONDUCTED INVESTIGATION INCOMPLIANCE
WITH PROVISIONS OF NDPS ACT?

ISSUE 4
WHETHER THE RIGHT TO PRIVACY OF THE ACCUSED WAS INFRINGED?

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SUMMARY OF ARGUMENTS

ISSUE 1: WHETHER THE APPEAL FILED AGAINST ACQUITTAL IS

MAINTAINABLE?
It is most humbly pleaded before this Honourable High Court that the appeal filed by the State
against the decision of Trial Court with respect to acquittal of accused, Dharam Pal, under
Section 378 of CrPC, 1973 is maintainable in the Court of Law. The appeal is filed on the ground
of that the points on which the accused has been acquitted are not convincing as there was proper
compliance of Sec 42 and 50 NDPS Act.
Thus, the appeal should be admitted as u/s 386(a) of CrPC, 1973.

ISSUE 2: WHETHER THE DECISION GIVEN BY THE TRIAL COURT WAS

INCONSISTENT WITH THE EVIDENCES?
It is most humbly pleaded before the Honourable High Court that the decision given by the Trial
Court was inconsistent with the evidences on record. The Trial Court neglected the credibility of
Official Witnesses and gave its decision merely on the testimony of Independent Witnesses, who
went hostile to the prosecution’s case, which was palpably wrongful and leads to miscarriage of
justice.
Thus, the testimony of Official Witnesses is credible enough to support the prosecution’s case
and hostility of Independent Witnesses is palpably wrong basis for the decision of the case.

ISSUE 3: WHETHER THE POLICE PARTY HAS CONDUCTED INVESTIGATION

INCOMPLIANCE WITH PROVISIONS OF NDPS ACT?
It is most humbly pleaded before the Honourable High Court that the Police Party has duly
followed all the procedural mandates mentioned under Section 42 and 50 of NDPS Act. And
also, complied with the procedural safeguards given under CrPC, 1973.
Thus, the Police Party has duly followed and complied with the mandatory provisions of the
NDPS Act and also, with procedures given under CrPC.

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ISSUE 4: WHETHER THE RIGHT TO PRIVACY OF THE ACCUSED WAS

INFRINGED?
It is most humbly pleaded before the Honourable High Court that the search and seizure done by
Police Party is not violative of Right to Privacy of accused, Dharam Pal. Section 42 and 50 of
NDPS Act empowers the authorised officers to investigate in such matters and gives the power
of search and seizure to such officers without the warrant.
Thus, the search and seizure done by Police Authorities is complied with the provisions of NDPS
Act and is not violative of Right to Privacy of the accused, Dharam Pal.

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ARGUMENT ADVANCED

ISSUE 1: WHETHER THE APPEAL FILED AGAINST ACQUITTAL IS

MAINTAINABLE?

It is most humbly pleaded before this Honourable High Court that the appeal filed by the State
against the decision of Trial Court with respect to acquittal of accused, Dharam Pal, under
Section 378 of CrPC, 1973 is maintainable in the Court of Law. The appeal is filed on the ground
of that the points on which the accused has been acquitted are not convincing as there was proper
compliance of Sec 42 and 50 NDPS Act.
I.I. THAT THE APPEAL FILED U/S 378 IS MAINTAINABLE.
I.I.I. Though the grounds on which an Appellate Court would be justified in setting aside
an acquittal cannot be exhausted, the following may be mentioned:
• Where the conclusions of the trial court are not based on any evidences on
record2;
• Those conclusions are perverse, that is such that no reasonable body of men,
properly instructed in law, can reach3 from proven facts4;
• They are so palpably wrong as to shock the sense of justice 5and has thus caused a
miscarriage of justice;
• Where the judgment of the trial court is vitiated by a manifest error in law6;
I.I.II. The Supreme Court has held that unless the judgment of acquittal is contrary to
evidences and palpably erroneous, the court shall be reluctant to interfere with the
acquittal.7It was observed that the paramount consideration of the court is to prevent the
miscarriage of justice and miscarriage of justice arising out of acquittal of guilty is no
less than from conviction of innocent.8

2
Ashok v. State of Rajasthan, (1990) Cr.L.J. 2276.
3
Satbir Singh v. State of Punjab, A.I.R. 1977 S.C. 1294.
4
Tota Singh v, State of Punjab, (1987) 2 S.C.C. 529.
5
Arun Kumar v. State of Uttar Pradesh, (1989) Cr.L.J. 1460.
6
Umedbhai v. State of Gujarat, A.I.R. 1978 S.C. 424.
7
State of Rajasthan v. Shera Ram, A.I.R. 2012 S.C. 1.
8
State of Rajasthan v. Islam, A.I.R. 2011 S.C. 2317.

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I.I.III. It is for the Appellate Court to keep in view the relevant principles of law to re-
appreciate and re-weigh the evidences as a whole and come to its own conclusion on such
evidences in consonance with the principles of Criminal Jurisprudence.9In an appeal
against acquittal, interference in routine manner, where other view is possible, should be
avoided unless there are good reasons.10
I.I.IV. If the appellate court comes to the conclusion that the view taken by the acquitting
court was not a possible view on the evidences on record, it should re-appreciate the
whole evidences and reverse the order.11
I.I.V. This does not mean that where the judgment of the trial court is prima facie
reasonable, it is not open to the appellate court to reassess the entire evidence and come
to its own conclusion bearing in mind the considerations as it deems fit.12
I.I.VI. When the acquittal by the trial court was based on unwarranted assumption and
manifestly erroneous application of evidence by ignoring valuable and credible evidences
resulting in serious miscarriage of justice, then the interference with the order of acquittal
is justified.13

I.II. THAT THE LEAVE U/S 378(3) SHOULD BE GRANTED.

I.II.I. The provision u/s 378(3) does not, however, require that application for leave to
entertain the appeal should be lodged first and does not suggest that only after leave has
been granted by the High Court, an appeal may be preferred against the order of
acquittal.14
I.II.II. When the trial court acquitted the accused person without appraising the entire
evidences, refusal to leave cannot be done. The Supreme Court held that the High Court
should appreciate the entire evidences and should not refuse the leave.15

Thus, the appeal should be admitted as u/s 386(a) of CrPC, 1973.16

9
Girja Prasad v. State of Madhya Pradesh, A.I.R. 2007 S.C. 3106.
10
Brahm Swaroop v. State of Uttar Pradesh, A.I.R. 2011 S.C. 280.
11
State of Punjab v. Ajaib Singh, (1995) 2 S.C.C. 486.
12
Pala v. State of Punjab, (1972) 2 S.C.C. 640.
13
Kamaljit Singh v. State, 2003 A.I.R. S.C.W. 4899.
14
State of Rajasthan v. Ramdeen, A.I.R. 1977 S.C. 1328.
15
Suga Ram v. State of Rajasthan, A.I.R. 2006 S.C. 3258.
16
CODE OF CRIMINAL PROCEDURE, 1973, Sec. 386.

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ISSUE 2: WHETHER THE DECISION GIVEN BY THE TRIAL COURT WAS

INCONSISTENT WITH THE EVIDENCES?

It is most humbly pleaded before the Honourable High Court that the decision given by the Trial
Court was inconsistent with the evidences on record. The Trial Court neglected the credibility of
Official Witnesses and gave its decision merely on the testimony of Independent Witnesses, who
went hostile to the prosecution’s case, which was palpably wrongful and leads to miscarriage of
justice.
II.I. THAT THE STATEMENTS MADE BY OFFICIAL WITNESSES ARE CREDIBLE IN
THE COURT OF LAW.
II.I.I. The Supreme Court has repeatedly affirmed that the evidence of the official witness
has to be weighed in the same scale as any other testimony. The significant thing herein
is that these official witnesses are not held to have any animus or hostility.17
II.I.II. It was held that Evidence of official witnesses, inspiring confidence and Statement
given by one official witness corroborated by another officialwitness.18
II.I.III. The non-association of the independent witness against the above background,
will not affect prosecution case in any manner, nor it is a rule of law which mandates the
police to associate the independent witness to corroborate their version. Non-association
of independent witness does not affect reliance on testimonies of official witnesses.19
II.I.IV. The Supreme Court in Naba Kumar v. State of West Bengal20, observed that there
is no presumption that police officials are liars. Hence, in the absence of circumstances to
throw a doubt on their veracity, there is no reason why their testimony should not be
treated in the same manner as that of my other witness.21
II.I.V. The Supreme Court has gone to the extent of holding that even where the
witnesses to a search do not support the prosecution case of seizure of an article during
search; there is nothing to bar the court from acting upon the sole testimony of the

17
Ajit Singh v. State of Punjab, 1982 Cri.L.J. 522.
18
Edward Samuel v. State of Himachal Pradesh, 2013 Cri.L.J. 4706.
19
James Albert v. State of Himachal Pradesh, 2011 Cri.L.J. 4654.
20
Nabakumar v. State of West Bengal, A.I.R. 1974 S.C. 777.
21
State v. Raijibhai, A.I.R. 1960 S.C. 24.

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searching officer22. The prosecution evidence as to recovery of the incriminatory article

from accused should be believed23. Thus, the sole testimony of the search officer is
admissible.24
II.I.VI. The statements of the witnesses of police department cannot be rejected only on
ground that the witness belongs to said department. In a case when the independent
witnesses examined on behalf of the prosecution did not support the prosecution or
becomes hostile, and if no infirmity is found in the statements of the witnesses, the
reliance can be placed on the testimony of such witnesses for basing the conviction.25
II.I.VII. Investigating Officer himself searched the accused before independent witnesses
but independent witnesses become hostile, evidence of Investigating Officer was worthy
of credence. Evidence cannot be disregarded.26
II.I.VIII. Once it is settled law that the provisions of CrPC are made applicable to NDPS
cases, then the rule of prudence and appreciation as to credibility of evidentiary value of
police officials relating to search and seizure of contraband is equally applied in such
cases.27
II.I.IX. A conviction can be based on the statement of a Police Officer and his statement
can also be accepted as against the statement of any other witness but such statement
must not be forming variance.28
II.I.X. The Hon’ble Court has opined the necessity to strengthen the Forensic Science for
detection of crimes; in the case of Dharam Deo Yadav v. State of U.P.29, which
is reproduced herein below:
“Para 30: Criminal Judicial System in this country is at cross-roads, many a
times, reliable, trustworthy, credible witnesses to the crime seldom come forward
to depose before the court and even the hardened criminals get away from the
clutches of law. Even the reliable witnesses for the prosecution turn hostile due to
intimidation, fear and host of other reasons. Investigating agency has, therefore,

22
Nabakumar v. State of West Bengal, A.I.R. 1974 S.C. 777.
23
Velayudhan v. State of Kerala. A.I.R. 1961 Ker. 8.
24
Bhand v. State of Assam, (1984) Cr.L.J. 217.
25
Piush Raj v. State of Madhya Pradesh, 2001 (1) EFR 59.
26
Kolhapur Canesugar Works Ltd. v. Union of India, 2000 (2) S.C.C. 119.
27
Rajat Prasad @ Naibudin v. State of Rajasthan, 2002 (1) Raj. Cri. C. 404.
28
Raj Nain v. State of Madhya Pradesh, (1992) 2 E.F.R. 119.
29
Dharam Deo Yadav v. State of Uttar Pradesh, (2014) 5 S.C.C. 509.

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to look for other ways and means to improve the quality of investigation, which
can only be through the collection of scientific evidence. In this age of science, we
have to build legal foundations that are sound in science as well as in law.
Practices and principles that served in the past, now people think, must give way
to innovative and creative methods, if we want to save our criminal justice system.
Emerging new types of crimes and their level of sophistication, the traditional
methods and tools have become outdated, hence the necessity to strengthen the
forensic science for crime detection. Oral evidence depends on several facts, like
power of observation, humiliation, external influence, forgetfulness etc.,
whereas forensic evidence is free from those infirmities. Judiciary should also be
equipped to understand and deal with such scientific materials. Constant
interaction of Judges with scientists, engineers would promote and widen their
knowledge to deal with such scientific evidence and to effectively deal
with criminal cases based on scientific evidence. We are not advocating that, in
all cases, the scientific evidence is the sure test, but only emphasizing the
necessity of promoting scientific evidence also to detect and prove crimes over
and above the other evidence.”
II.I.XI. Evidentiary value of a report received under Section 293, CrPC demands upon
two conditions:30
• The sample should be duly signed for chemical examination;
• Report should be obtained in course of any proceeding under the code;
II.I.XII. Report of Senior Scientific Assistant cum Assistant Chemical Analyser to the
Government of Gujarat Regional Forensic Scientific Lab is admissible in evidence and
can be used as evidence in any trial or proceeding under the code.31
II.I.XIII. An expert’s report can be used as evidence in any inquiry, trial or other
proceeding under CrPC. It is open to the court to summon and examine any expert. But
he is not a formal witness, hence no duty is cast upon the investigating officer to cite him
as a witness.32

30
Roshy v. State of Kerala, 2005 Cri.L.J. 3657.
31
State of Madhya Pradesh v. Ghanshyam, 2008 Cri,L.J. 107.
32
Amar Chand v. State of Madhya Pradesh, 2005 Cri.L.R. 501.

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II.I.XIV. Where the samples taken during seizure were found to be charas as per the
report of analyst, the report would not be invalid on the ground that even though the tests
conducted were mentioned, the positive results of each were not mentioned, it is not
necessary to mention the details. He is scientific expert and his report could be used as
evidence without even examining him.33
II.I.XV. The report of Chemical examiner to the effect that the seals on the sample were
intact when it was examined by him is sufficient safeguard against any mischief if that
could be perpetrated in the office of Chemical Examiner.34

II.II. THAT THE HOSTILITY OF INDEPENDENT WITNESSES IS PALPABLY WRONG

BASIS FOR THE DECISION.35
II.II.I. The Supreme Court while dealing with issue of Hostility of Witnesses held that
Dispensation of justice in Criminal Trial is serious matter and cannot be allowed to
become mockery by allowing prime or independent prosecution witness to turn hostile as
ground for acquittal.36
II.II.II. Hostile witness - Accused was travelling in taxi driven by witness - Witness
denied driving taxi - But admitted to signatures on cloth parcels and documents prepared
on spot at time of recovery - Record of booking of taxi produced in Court - His presence
on spot cannot be denied - No reason for police to prepare false report shown - Witness
found to have suppressed truth - Hence, hostility does not affect case of prosecution.37
II.II.III. Any hostile animus or any basis for false implication not established on part of
official witnesses - Evidence of official witnesses can form basis of conviction -
Examination of independent witness is a rule of caution and not a mandatory rule.38
II.II.IV. The Court held that the evidence of Hostile Witness cannot be rejected in toto
and same can be accepted to extent the version found to be dependable.39

33
Ismail v. State of Kerala, 1991 Cri.L.J. 2945.
34
State of Punjab v. Nachhattar Singh,1982 Cri.L.J. 1197.
35
INDIAN EVIDENCE ACT, 1872, Sec. 154.
36
Hemudan Nanbha v. State of Gujarat, A.I.R. 2018 S.C. 4760.
37
James Albert v. State of Himachal Pradesh, 2011 Cri.L.J. 4654.
38
Bhim Nahak v. State of Orissa, 1992 Cri.L.J. 1140.
39
Deepak Yadav v. State, 2018 Cri.L.J. 4736.

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II.II.V. The evidence of Hostile Witness can be accepted if same is otherwise worthy of
trust though he was declared hostile with regard to some aspects of evidence tendered by
him.40
II.II.VI. it was held that the evidence of a person does not become effaced from the
record merely because he has turned hostile and his deposition must be examined more
cautiously to find out as to what extent he has supported the case of prosecution.41
II.II.VII. Supreme Court observed that it is also not always necessary that wherever the
witness turned hostile the prosecution case must fail. The part of the statement of such
hostile witness that supports the case of prosecution can always be taken into
consideration. The court has to act with greater caution and accept such evidence with
greater degree to care in order to ensure that justice alone is done. The evidence so
considered should unequivocally point towards the guilt of the accused.42
II.II.VIII. Generally speaking, the problem of witnesses turning hostile not only cause
injury to theparties who call them but also public will have no faith in administration of
justice. In a landmark case, the Delhi High Court observed that:43
“The edifice of the administration of justice is based upon witnesses coming
forward and deposing without fear or favour, without intimidation or allurements
in Court of law. If witnesses are deposing under fear or intimidation or for favour
or allurement, the Foundation of administration of justice not only gets weakened,
but it may even get obliterated.”

Thus, the testimony of Official Witnesses is credible enough to support the prosecution’s case
and hostility of Independent Witnesses is palpably wrong basis for the decision of the case.44

40
S.C. Goel v. State through C.B.I., 2017 Cri.L.J. 536.
41
Paramjeet Singh v. State of Uttrakhand, (2010) 10 S.C.C. 439.
42
Govindaraju v. State, A.I.R. 2012 S.C. 1292.
43
Mrs. Neelam Katara v. Union of India, I.L.R. (2003) 2 Del 377.
44
INDIAN EVIDENCE ACT, 1872, Sec. 145 & 155.

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ISSUE 3: WHETHER THE POLICE PARTY HAS CONDUCTED INVESTIGATION

INCOMPLIANCE WITH PROVISIONS OF NDPS ACT?

It is most humbly pleaded before the Honourable High Court that the Police Party has duly
followed all the procedural mandates mentioned under Section 42 and 50 of NDPS Act. And
also, complied with the procedural safeguards given under CrPC, 1973.

III.I. THAT THE PROCEDURE OF SECTION 42 WAS DULY FOLLOWED BY THE

POLICE PARTY.
III.I.I. Where the Gazetted Officer himself conducted the search in his presence and
seized the contraband, he acts under Section 41 and therefore, it equates the compliance
of Section 42.45
III.I.II. Search conducted by SI or ASI, who was authorized officer under Section 42 of
the Act and therefore compliance of Section 42(2) is not necessary.46
III.I.III. Where the Dy. S.P. came on the spot and conducted search and seizure, there was
proper compliance of Section 42.47
III.I.IV. In respect of an offence under the NDPS Act, it is necessary for the officer to
comply with the provisions of Section 42 even when where the information received by
him is regarding the commission of offence in a public place as mentioned under Section
43 of the Act.48Neither Section 42 nor 43 of the Act makes it necessary, compulsory or
incumbent for the authority who receives the information to make a written record of
it.49Officers acting under Section 42(1) are not required to take down in writing the
information received by them in respect of offence under the Act.50
III.I.V. There must be a reasonable ground of suspicion before a search is conducted. A
common thread which runs through Section 41 to 44 and even Section 49 is that the
designated officer there under should have “reason to believe” about the commission of
an offence under the Act before he conducts search and arrests. If such officer has valid

45
Union of India v. Satrohan, 2008 (8) S.C.C. 313.
46
Ram Babu v. State of Orissa, 2013 (55) O.C.R. 21.
47
Promil Singh v. State of Rajasthan, 2001 (1) Raj. Cri. 282.
48
Manidhar Shinde v. State of Maharashtra, 2001 (2) Mah.L.J. 615.
49
Amarjit Singh v. State, 1994 Cri.L.J. 1987.
50
HarBacchan Singh v. State of Punjab, 2002 Cri.L.J. 3016.

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reason to suspect as distinguished from reason to believe, the requirement of law could be
met. It may also be noticed here that using powers under Sections 42, 43 and 44 without
reasonable ground of suspicion or detaining, searching or arresting any person
veraciously and unnecessarily has been made a cognizable offence under section 58 of
the Act. Moreover, the provisions of Section 50 fit in and fortify the conclusion that a
designated officer must have reason to belief/suspect before carrying out search.
III.I.VI. When the accused was intercepted in a public way, and was arrested in that
public way for the offence under the NDPS Act, then, then requirement of Section 42
cannot be said to be vitiated.51Where the person was searched in the public place, the
officer making search would not be required to record its satisfaction.52
III.I.VII. Where the investigating officer made an effort to join witnesses but such
witnesses become hostile, but the factum of recovery was proved by police witnesses,
and then the search should be believed even though it was not proved by two independent
witnesses’ u/s 100(4).53
III.I.VIII. The foregoing provision of Section 100(4) of CrPC would not apply in the case
of the search of a person of the seizure of any article found in his person54. However,
Section 100(4) does not apply to a person when searched on a public road.55The
requirement of Section 100(4) relates to search of a place, and not to the search of an
object or of a person.56
III.I.IX. The Court held that if secret information regarding accused was received by
raiding officer party on patrolling duty and having received such information for
apprehending escape of accused and concealment of evidence accused immediately
intercepted without obtaining warrant. Here, strict compliance of Section 42, not
necessary in such case and search and seizure not vitiated by procedural lapse.57

51
Ashok Kumar Sharma v. State of Himachal Pradesh, 2008 Cr.L.J. (NOC) 1165 (DB)
52
State of Haryana v. Janail Singh, 2004 A.I.R. S.C.W. 2962.
53
Supreme Court Employees’ v. Union of India, (1989) 37 Cri.L.T. 334.
54
Local Govt. v. Nainsukh, A.I.R. 1933 Nag. 99.
55
Ramadhan Singh v. State of Uttar Pradesh, (1995) 3 Crimes 41 (All).
56
State v. Ram, (1978) Cr.L.J. 601.
57
Jaichand v. State of Chhatisgarh, 2018 Cri.L.J. 3501.

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III.II. THAT THE PROVISION OF SECTION 50 WAS DULY COMPLIED BY THE

POLICE PARTY.
III.II.I. A bare reading of section 50(1) suggests that it is a duty of the Investigating
officer to apprise the accused of his legal right that his search for the possession of
narcotics, be conducted in the presence of the Magistrate or a Gazetted Officer.
In the case, the appellant-accused was convicted for the offence punishable under Section
20 of the NDPS Act. In appeal, the accused while assailing the legality and correctness of
conviction contended that the prosecution had failed to ensure mandatory compliance of
Section 50 of NDPS Act in as much as the alleged recovery/search of the contraband
(Charas) made by the raiding police party from the appellant’s body was not done in
accordance with the procedure prescribed under Section 50 of NDPS Act, which is a
mandatory provision.58 It was observed that:
“That the true scope and object of Section 50 of NDPS Act, what are the duties,
obligation and the powers conferred on the authorities under Section 50 of NDPS
Act and whether the compliance of requirements of Section 50 are mandatory or
directory, remains no more res integra and are now settled by the two decisions
of the Constitution Bench of the Supreme Court in the case of State of Punjab vs.
Baldev Singh.59 In this case, it was held that the requirements of Section 50 of
NDPS Act are mandatory and, therefore, the provisions of Section 50 must be
strictly complied with. That it is imperative on the part of the Police Officer to
apprise the person intended to be searched of his right under Section 50 to be
searched only before a Gazetted officer or a Magistrate. It was held that it is
equally mandatory on the part of the authorized officer to make the suspect aware
of the existence of his right to be searched before a Gazetted Officer or a
Magistrate, if so required by him and this requires a strict compliance. It is ruled
that the suspect person may or may not choose to exercise the right provided to
him under Section 50 of the NDPS Act but so far as the officer is concerned, an

58
Chandubha Jadeja v. State of Gujarat, 2011(1) SCC 609.
59
State of Punjab v. Baldev Singh, (1999) 6 SCC 172.

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obligation is cast upon him under Section 50 of NDPS Act to apprise the suspect
of his right to be searched before a Gazetted Officer or a Magistrate.”60
“24.4. Fourth, in order to make the search and recovery of the contraband
articles from the body of the suspect, the search and recovery has to be in
conformity with the requirements of Section 50 of the NDPS Act. It is, therefore,
mandatory for the prosecution to prove that the search and recovery was made
from the appellant in the presence of a Magistrate or a Gazetted Officer.”
III.II.II. Provisions of Section 50 would become operative only in case there was prior
specific information with regards to commission of offence and pursuant to such
information the search of the person and articles in immediate possession of the accused
was carried.61
III.II.III. Search made by Gazetted Officer who was the member of raiding party
conducted the search. Accused volunteered to be searched by him. It also amounts to
compliance of Section 50.62
III.II.IV. When the accused was informed of his rights and options to be exercised and he
consented to be searched in the presence of said officer, then it would not be open to him
even to urge non compliance of Section 50. Here, perusal of consent of accused recorded
shows that ASI had informed accused about his said legal right.63
III.II.V. Where search was conducted in presence of Addl. Dy. S.P. who is a member of
raiding party and he gave a notice to accused under Section 50, wherein he mentioned
that accused may get himself searched either before a Magistrate or a Gazetted Officer or
before himself, who is also a G.O. and it was accused who exercised one option to get
himself searched in presence of Addl. Dy. S.P., it would be treated as sufficient
compliance of Section 50.64
III.II.VI. Accused, after apprehension offered to be searched in presence of Gazetted
Officer or Magistrate. It amounts to compliance with Section 50 of the Act.65The
Supreme Court held that, if the accused was informed about his right to be searched in

60
Arif Khan v. State of Uttarakhand, 2018 SCC Online SC 459.
61
Sheikh Ashraf v. State of Maharashtra, 1997 Cri.L.J. 3031.
62
Raghunath Ramnath Zolekar v. State of Maharashtra, 2002 Cri.L.J. 148.
63
State of Rajasthan v. Ram Chandra, A.I.R. 2005 S.C. 2221.
64
Ashok Kumar Sharma v. State of Rajasthan, 2007 Cri.L.J. 1734.
65
Kanwar Pal v. State, 2017 Cri.L.J. 2124.

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presence of either Gazetted Officer or Magistrate and chose to be searched in presence of

Gazetted Officer. The mandatory requirement of compliance with Section 50 was
fulfilled.66
III.II.VII. Gazetted Officer himself conducted search and seizure of appellant - Not
necessary for him to ensure compliance of S. 42 - Also offer to search the appellant was
given to him in writing and on his giving consent, he was accordingly searched - Finding
that requirement of S. 50 complied with is just, legal and proper.67

Thus, the Police Party has duly followed and complied with the mandatory provisions of the
NDPS Act and also, with procedures given under CrPC.

66
S.K. Raju v. State of West Bengal, A.I.R. 2018 S.C. 4255.
67
Sekhar Suman Verma v. Superintendent of N. C. B., A.I.R. 2016 S.C. 3193.

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ISSUE 4: WHETHER THE RIGHT TO PRIVACY OF THE ACCUSED WAS

INFRINGED?

It is most humbly pleaded before the Honourable High Court that the search and seizure done by
Police Party is not violative of Right to Privacy of accused, Dharam Pal. Section 42 and 50 of
NDPS Act empowers the authorised officers to investigate in such matters and gives the power
of search and seizure to such officers without the warrant.
IV.I. THAT THE RIGHT TO PRIVACY UNDER ARTICLE 21 IS NOT AN ABSOLUTE
RIGHT.
IV.I.I. In Kharak Singh v. State of U.P,68 the court, therefore, has interpreted the right to
privacy not as an absolute right, but as a limited right to be considered on a case to case
basis
IV.I.II. The Court held that the right to privacy is not absolute and is subject to action
lawfully taken to prevent crime or disorder or to protect the health, morals and the rights
and freedoms of others. Public disclosure of even true facts, the Court held, may amount
to invasion of the right to privacy or the right to be let alone when a doctor breaches
confidentiality. The Court held that:
"Disclosure of even true private facts has the tendency to disturb a person's
tranquillity. It may generate many complexes in him and may even lead to
psychological problems. He may, thereafter, have a disturbed life all through. In
the face of these potentialities, and as already held by this Court in its various
decisions referred to above, the right of privacy is an essential component of the
right to life envisaged by Article 21. The right, however, is not absolute and may
be lawfully restricted for the prevention of crime, disorder or protection of health
or morals or protection of rights and freedom of others." 69
IV.I.III. Any abridgment must meet the requirements prescribed by Article 21, Article 19
or the relevant freedom. The Constitutional right is placed at a pedestal which embodies
both a negative and a positive freedom. The negative freedom protects the individual

68
AIR 1997 SC 568.
69
State of Maharastra v. Jayantilal Popatlal Chandrani, 1979 CriLJ 1231.

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from unwanted intrusion. As a positive freedom, it obliges the State to adopt suitable
measures for protecting individual privacy:
"The right to privacy can be both negatively and positively defined. The negative
right to privacy entails the individuals are protected from unwanted intrusion by
both the state and private actors into their private life, especially features that
define their personal identity such as sexuality, religion and political affiliation,
i.e. the inner core of a person's private life. The positive right to privacy entails
an obligation of states to remove obstacles for an autonomous shaping of
individual identities."70
IV.I.IV. The Supreme Court observed that the court71 is not expected to adopt a passive
or negative role and remain bystander or a spectator if violation of rights is too observed.
It is necessary to fashion new tools and strategies so as to check injustice and violation of
fundamental rights. No procedural technicality can stand in the way of enforcement of
fundamental rights. There are enumerable decisions of this Court where this approach has
been adopted and directions issued with a view to enforce fundamental rights which may
sometimes be perceived as legislative in nature. Such directions can certainly be issued
and continued till an appropriate legislation is enacted. Role of this Court travels beyond
merely dispute settling and directions can certainly be issued which are not directly in
conflict with a valid statute. Power to declare law carries with it, within the limits of duty,
to make law when none exists.

Thus, the search and seizure done by Police Authorities is complied with the provisions of NDPS
Act and is not violative of Right to Privacy of the accused, Dharam Pal.

70
Anna Johnson Cornell, “Right To Privacy”, Max Planck Encyclopaedia of Comparative Constitutional Law 2015.
71
Maneka Gandhi v. Union of India, (1978) 1 SCC 248.

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PRAYER FOR RELIEF

Wherefore, in the light of facts stated, issue raised, authorities cited, and arguments advanced, it
is most humbly prayed and implored before the Honourable Court, that it may graciously be
pleased to adjudge and declare-

I. THE APPEAL SHOULD BE HELD MAINTAINABLE IN THE COURT OF

LAW.
II. THE DECISION OF TRIAL COURT SHOULD BE HELD PALPABLY
ERRONEOUS AND SHOULD BE SET ASIDE.

And pass any other order(s) as it deems fit in the interest of equity, justice and good conscience.

All of which is most humble and respectfully submitted.

For this act of kindness, the Appellant faction shall be duty bound forever.

SD/-

(COUNSEL FOR THE APPELLANT)

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