MOOT PROPOSITION

1. Indiana is a country located in the South-Asian subcontinent and is divided into six
geographical zones. It boasts a vast majority of cultural diversities and linguistic
pluralism. Indiana is also a birthing home to different religions of the world. The citizens
of the country are also proud at it’s rich heritage and despite the ideological differences
are connected through a sense of determination. After a long freedom struggle and
economic exploitation Indiana gained independence in 1947 and has written it’s own
pages of history since then.

2. It has one of the largest Gross Domestic Product’s in the world and has come a long way
since its independence. A peculiar country, it is divided into many bio-geographic areas
from the steep ranges of Karakorum in the North to the southern Indira Point. In the east
are the trans-Himalayas and in the western frontier is dominated by the Vindhya range
and the Thar desert. Indiana is the seventh largest country in the world and shares it’s
borders with countries like Pakistan, Bangladesh, Bhutan, China Nepal amongst others.
These borders are major boundaries of economic activity and witness a variety of inflow
and outflow of trade.

3. The northern plains of Indiana that is the Gangetic doab is a very fertile area and is
ground for suitable cultivation of a great deal of agricultural crops. Among them are
psychotropic substances which have been conventionally used by people as a recreational
and for medical purposes. Some of the states of Indiana have also licensed the growth of
such crops for medicinal purposes and are expressly enlisted in the category of
manufactured drugs. These psychotropic substances are also imported inter-state and
exported from Indiana.

4. There have been several instances in the news that in the garb of import and export
many state officials and other individuals whether Indiana citizens or otherwise are
involved in the illicit trafficking of such narcotic and psychotropic substances. The
National Crime Record Bureau has also reported the presence of an international mafia
and a nexus of dealers and peddlers that are responsible for distribution and
transportation of such narcotic drugs and substances. The nation’s malady has become
even more grave with the passage of time owing to the rise in the use of drugs especially
in the youth.

5. Since, Indiana is welfare oriented and it is the duty of the state to protect its citizens
from any emancipation, therefore certain legal protections are provided for in the
constitution of Indiana, an ever-evolving organic instrument both originally and through
various amendments from time to time. To achieve parity between legal frameworks of
developed countries, the legislature has also partaken in the comity of nations to
collectively battle the illegal use of narcotic drugs and as a result it has been a state member
and has ratified many international conventions to commit to their ironclad stand. Among
such conventions are ‘The Single Convention on Narcotic Drugs, 1961, the Protocol,
amending Single Convention on Narcotic Drugs, 1961’, ‘the Convention on Psychotropic
Substances, 1971 and others.

6. The union guided by it’s design and purpose, can also ratify or accede to any other
international convention, protocol or other instrument amending an international
convention relating to narcotic drugs and substances after the commencement of the act.
The parliament of Indiana keeping the conventions in view decided to come up with a law
to tackle this ever-growing menace and legislated THE NARCOTIC AND PSYCHOTROPIC
SUBSTANCES ACT, 1985 (hereinafter, ‘The Act’) to make stringent provisions for
regulations of operations relating to narcotic drugs and psychotropic substances and to
provide for a standard mechanism and a legal framework to deal with the problems arising
therein and achieve any other goal as may be necessary to implement the provisions of
international conventions to further the cause enshrined under the preamble of the act.
7. The Act provides a framework related to the machinery to prohibit, regulate, and control
the use of substances provided thereunder. It also serves as a punitive measure to deter
the undesired consequences arising out of unwarranted use of narcotic drugs and
forfeiture of illegally acquired property. The act is still evolving owing to the multi-
dimensional interpretation by the constitutional courts and the complexities accruing due
to the evolving nature of the modus operandi of the drug trafficking institutions. The act
has been amended by the legislature recently wherein Section 27A of the act was amended.

[I]
8. Mr. Y and his family are residents of city of Kumbai. They are a humble family of four
with Mr. Y being the sole bread earner of the family. Mr. Y is a teacher and has previously
worked with different private schools in the past. Like many other victims, the inception
of Covid-19 has hit hard on his livelihood and he was let off from the private institution he
was working in. He was then forced to give tuitions in the hope to maintain his family. He
also gave tuitions to poor children who could not afford to get an education during covid
– 19, out of sheer goodness of his heart and charged a very nominal fee from them.
However, the times were very hard on him and there were many nights when he and his
family had to sleep hungry. This was the case of many other families who lived in his
neighborhood.

9. To battle poverty, Mr. Y would often take menial jobs to provide for his family and
collect and save whatever little money that he could in case of a medical emergency. He
would hope to receive monetary benefit from the government through a welfare scheme
and relief programme that the central government had launched but he could not access
it’s benefits. He blamed the overcomplicated bureaucratic system and that the scheme had
failed to consider that millions of people were ineligible simply because they were off the
books.

10. On a given night, he returned to his house only to find out that his wife was crying
because his younger son had been stricken with high fever. Looking at this dire situation
Mr. Y rushed to the government hospital, since he could not afford the services of a private
hospital, but was heartbroken to see a large queue already waiting to purchase medicines
at nominal rates. He realized that at this rate situation would worsen and the health of his
child would deteriorate immensely.

11. Thereafter, he ran from pillar to post to borrow some money from the places he used
to work in. He knocked on their doors but nobody came forward to help him. Then he
suddenly realized that the current employment that he was working in mentioned a
particular person who would lend money to people who needed money in such times. He
quickly rushed to his employer to get the whereabouts of this person. He reached the given
address and one Mr. A answered the door much like an angel answers the prayers of the
needy.

12. Mr. Y explained his situation to Mr. A desperately and he agreed to help him and
immediately took out a roll of cash and handed it out to Mr. Y so that he could afford the
medicine from the private hospitals. However, he did so after imposing a condition that
Mr. Y would have to work from him after a while. Mr. Y agreed to the condition without
asking the details. Thereafter, much like the cavalry reaches the infantry, Mr. Y rushed to
the nearest private hospital he could find and gave the medicines to his child. After a while
the child’s fever reduced and by the next morning the fever was completely over.
13. Mr. Y and his wife left the care of his younger child to his elder brother and went to
thank Mr. A for helping them. It was now the time to return the favor to Mr. A. Mr. A
introduced himself as a medical supplier and that he had a license from the government
to do so. He would often supply psychotropic substances to different places. He also told
Mr. Y that he worked in different business and a lot of them involved the transportation
of goods from one place to another.

14. He also told Mr. Y that he also owns a few vehicles to transport the goods from one
place to another and that he was looking to employ a few delivery men. He proposed that
if Mr. Y delivers the goods to certain places, he would even pay him good money. However,
the goods were supposed to reach intact without any tampering. After their delivery, the
goods will be taken to different states and that he gets monetary compensation for all the
transportation work that he does. Mr. Y took him up on his proposal and he decided to
work as a transportation man, to deliver the designated consignment of goods.

15. ‘Organized crime does you a favor that government owes you as a right’. Mr. A was
successfully able to pass himself off as a businessman and convinced Mr. Y that he was
operating upon a legitimate business. However, all of that was merely a façade and Mr. Y
was standing too close to see the actual picture that was forming, that of organized crime
and drug cartels. Mr. A’s cartel was a collection of more than one hundred groups that
made up Indiana’s organized crime syndicate. They also had connections to other drug
cartels operating outside Indiana. Their modus operandi was exploiting the times of
turmoil by handing out personal loans to people and owing them favours and consequently
making them work for the cartel or charging high interest rates on the loans.

16. A complaint was filed on 16th December through the intelligence officer at the Kumbai
zonal unit of the Narcotics Control Bureau (hereinafter referred to as ‘NCB’). As was
alleged in the complaint, the NCB zonal unit received information that one person namely
Mr. Y who is resident of the city of Kumbai is proceeding with heroin in a Maruti Ritz
vehicle bearing registration No. KM6889 from Kumbai to the neighboring state Shambala
and that the vehicle would pass through the Saint Mary’s college, Shambala. The
information was reduced into writing and was produced before the zonal director. A team
of NCB officers was formed and it was directed to liaise with the team of Shambala special
task force, Shambala.

17. Surveillance was conducted in the area around St. Marys’ college and the car in which
Mr. Y was transporting the goods was intercepted. A search was conducted in the presence
of a gazette officer in accordance with the procedure provided therein. Nothing
objectionable was recovered in the course of the personal search. However, a search of the
car revealed a sealed polythene packet weighing around 400 grams in the trunk of the car
along with the other medicines of questionable nature. Samples were taken and upon
testing with the drug detection kit, the samples tested positive for heroin. Mr. Y was
immediately taken in custody by the NCB.

18. The samples were then sent to the Chief Examiner, Central Revenues Control
Laboratory (CRCL), Kumbai. A medical examination report was prepared by CRCL which
stated that the samples did not test positive for diacetylmorphine that is heroine but it
tested positive for morphine.

19. The accused was charged and convicted by the sessions court with Sec. 8 of the NDPS
act punishable with Sec. 21 which imposed punishment of rigorous imprisonment for a
term of twenty years and a fine of rupees two lakh twenty thousand was imposed upon
him.
20. Mr. Y appealed the decision of conviction of the sessions court to the High Court of
Kumbai but the high court also upheld the decision of the sessions court. Aggrieved by the
decision of the high court Mr. Y filed a special Leave Petition challenging the validity of
the decision of the high court.

21. Mr. Y challenged the proportionality of the punishment by saying that the fine and the
term imposed upon him were very harsh compared to the other legislations and that the
court has unchecked wide and discretionary powers while imposing the punishment. The
court stated while imposing punishment higher than the minimum, in the absence of proof
of factors mentioned in Section 32B the court may also consider other circumstances that
may deem fit. Such a wide discretion without guiding principles is arbitrary in nature and
violates their right to equality and the liberty that touches it.
22. The accused also challenged the Section 35 of the act presuming the culpable mental
state when the possession of the Narcotic drugs or psychotropic substances itself was in
question. Moreover, the burden to prove that there was no intention, knowledge motive,
belief, reason to believe was beyond reasonable doubt.

[II]
23. It is every year that the people of the Doka village in the state of kumbai eagerly wait
for the annual festival of yoli that has being celebrated in their community for as long as
one can remember. It is also a tribute to their local deity Doki, the goddess of food grains.
The village was named after the goddess herself. They celebrate that festival at the end of
the harvest of crops and thank their goddess for their good yield. During this time of the
year the locals engage in the famous village fair that is popular all over Indiana and every
year tourists also come to the village for witnessing the fair that is organized by the village.
Children and adult both are equally eager to enjoy the festivities that the day has to offer.

24. A major part of the festival is the use of cannabis which has been given numerous
names and forms over a thousand of years. Cannabis has been a part of this religion used
in the form of charas, bhang and ganja (flower of cannabis). One of the most commonly
used form of cannabis is the delicacy ‘thandai’ (which is the other name for bhang), a
refreshing beverage laced with cannabis seeds and leaves. This beverage is especially
popular among the farmers who have worked hard for the harvest. On the night of the
festival they gather around and drink the thandai for recreational purpose and sing their
local folklore and tell stories about their tradition. This practice is going for as long as they
can remember.

25. However, since the past two years, the festival was not held in the village due to Covid-
19. So, when situation got better, the elders of the village decided to organize the festival
and the preparation of the festivity began. However, this was not without the supervision
of the state authorities who were responsible for regulating the Covid-19 regulations. The
police forces were also posted in the outskirts out the village to maintain law and order.

26. Consequently, on the given day the festival was held. However, on seeing that the
thandai that was being served was laced with the cannabis leafs and seeds, the police took
cognizance of the fact and arrested the vendor, Mr Z for the offence of Sections 65 (b), 65
(e) and 65(g) and one Mr. B who was about to consume the thandai for section 65(e) of
the Maharashtra prohibition Act, 1949 Act for consumption and supply of intoxicating
substance respectively.

27. The trial court acquitted the Mr. B as the terms consumption and buying were
ambiguous in nature and therefore could not be proved in the trial court. The trial court
also noted that the Maharashtra prohibition act and the NDPS act were repugnant to each
other so far as quantum of punishment was involved for the same offence.

28. However, the Vendor Mr. Z was held liable for the offences stated above and convicted
thereafter. Mr. Z appealed to the Supreme Court of Indiana under Article 32 alleging that
the said sections were violative of his fundamental right of 19(1)(a) , 19(1)(g) and Art. 29
of the constitution of Indiana.

[III]
29. “Scam 2022” read the front page of the national dailies of Indiana, referring to one Mr.
X, one of the richest business tycoons of the country. Mr. X who is both an industrialist
and a businessman and has 60 percent of equity shares in the company power X, a leading
company in the power sector of Indiana. In addition to that Mr. X also owns considerable
stakes in different government stocks and has acquired major privatized companies of the
government. Mr. X also owns a major share of the different ports, airports and major
transportation companies in Indiana.

30. He is an influential personality and has communication links with neighboring

countries like Pakistan, Afghanistan, Bangladesh and Nepal. His company policies are
often the subject of economic decisions of Indiana. However, over the years, Mr. X and his
companies have also been parties to litigations and settlements including a few taxes
evasion cases. This has consequently lowered his reputation in the market and has had an
undesirable effect on the sale of company products. Moreover, the valuation of his stocks
has had a considerable fall.

31. On 1st January 2022, the Narcotics Control Bureau, is a central law enforcement and
intelligence agency under the Ministry of Home Affairs, Government of India. The agency
is tasked with combating drug trafficking and the use of illegal substances under the
provisions of Narcotic Drugs and Psychotropic Substances Act. The NCB is the apex
coordinating Agency. It also functions as an enforcement agency through it’s zones and
sub-zones. The zones and substance collect and analyze data related to the seizure of
narcotic drugs and psychotropic substances, study trends, modus operandi, collect and
disseminate intelligence and work in the close cooperation with the customs, State Police
and other law enforcement agencies

32.The NCB received an information that in one of the ports owned by Mr. X a ship
carrying illegal contraband will reach the dockyard on 15th January 2022. Earlier that year
similar information had been received by the NCB that MR. X was using his ports to export
and transport drugs to different countries and even in different states of Indiana. The
information was reduced to writing and since then NCB constantly monitored the
activities on the ports and on the opportune day the NCB raided the ports and the
concerned ship was found. The officers found in the possession of the ship- personnel 5
kg. of illegal cocaine and were immediately brought to custody for interrogation.
32. This news quickly spread through the ranks of the shareholders of company and then
to the media houses which were quick to broadcast the information as breaking news. As
a matchstick is to gunpowder, this news became the talk of the country and had a direct
effect on the reputation of Mr. X. Mr. X apprehending the arrest soon, worried about the
reputation of the company and the toll it would take on the shares and the goodwill of the
company which took his lifetime to build, all of that would be tarnished in seconds if he
goes to jail.

33. Mr. X approached the high court of Kumbai for granting him the anticipatory bail.
However, the same was denied by the High Court stating that he could not avail the benefit
of Section 438Cr.P.C that is anticipatory bail since Section 37 starts with a non- obstinate
clause which takes away the right of petitioner to file for an anticipatory bail. The
Anticipatory bail was not available in cases relating to Section 37 of the act the act owing
to the special nature of the NDPS act. Moreover, the parliament has over ridden the
provision of Section 438 Cr.P.C. Therefore, Section 37 of the Act deprived the court to
grant anticipatory bail.

34. Mr. X filed an application to the Supreme Court that the matter involved a substantial
question of law and the words notwithstanding anything given in Cr.P.C are arbitrary and
unconstitutional as they curtail the fundamental right of liberty guaranteed by Art. 21 of
the constitution.

The Supreme Court clubbed all the petitions and decided to hear them collectively on 7 th
and 8th May, 2022.

ISSUES

i. WHETHER THE PRESENT PETITIONS ARE MAINTAINABLE.

ii. WHETHER THE PUNISHMENT PRESCRIBED BY THE NDPS ACT1985 IS
ARBITRARY AND VIOLATIVE OF ART.14 AND ART.21 OF THE CONSTITUTION OF
INDIANA.
iii. WHETHER THE PRESUMPTION UNDER SECTION 35 OF THE NDPS ACT, 1985 IS
UNCONSTITUTIONAL AS BEING VIOLATIVE OF ART.14 AND ART.21 OF THE
CONSTITUTION OF INDIANA.
iv. WHETHER THE PUNISHMENT PRESCRIBED UNDER SECTIONS 65 (b), 65

(e) AND 65(e) of the MAHARASHTRA PROHIBITION ACT, 1949 ARE VIOLATIVE OF
ARTICLE. 19 AND ARTICLE 25 OF THE CONSTITUTION OF INDIANA.
v. WHETHER THE PUNISHMENT PRESCRIBED UNDER SECTION UNDER SECTION
65 (b), 65 (e) AND 65(e) of the MAHARASHTRA PROHIBITION ACT, 1949 ARE
VIOLATIVE OF ART.29 OF THE CONSTITUTION OF INDIANA.
vi. WHETHER THE SECTION 37 of NDPS ACT1985, BARS THE APPLICATION OF
SECTION 438 OF THE CODE OF CRIMINAL PROCEDURE1973.

NOTE:

A. The laws and legal and social set-up of Indiana is pari materia to the democratic
republic of India. The state of kumbai is to be construed as the state of Maharashtra.
B. All facts and circumstances mentioned in this Moot Proposition are illustrated purely
for the purpose of academic discussion and dialogue on legal issues and any arguments
mentioned do not represent the view of the Institution/University. This Proposition also
doesn’t seek to make any direct or indirect reference to any tribe or community of people;
all nomenclature of people and communities employed herein are imaginary and any
resemblance to any actual people and tribes is purely coincidental.