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Moot Court Exercise and Internship (Symbiosis International

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NHRC- RGNUL HUMAN RIGHTS NATIONAL MOOT COURT COMPETITION 2023

IN THE HON’BLE HIGH COURT OF BHANU PRADESH UNDER

ARTICLE 226 OF THE CONSTITUTION OF REPUBLIC OF SHALVAK

IN THE MATTERS OF
ARTICLE 226 OF THE CONSTITUTION OF REPUBLIC OF SHALVAK

Centre for Therapeutic Legal Healing….............................................Petitioner

versus
State of Bhanu Pradesh & Ors..........................................................Respondent

SUBMISSION BEFORE THE HON’BLE CHIEF JUSTICE AND HIS/HER

COMPANION JUSTICES OF THE HON’BLE HIGH COURT OF BHANU PRADESH

MEMORIAL ON BEHALF OF THE RESPONDENT

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TABLE OF CONTENTS

TABLE OF CONTENTS..........................................................................................................I

LIST OF ABBREVIATIONS................................................................................................ III

INDEX OF AUTHORITIES................................................................................................... V

STATEMENT OF JURISDICTION................................................................................... VIII

STATEMENT OF FACTS.......................................................................................................X

ISSUES RAISED................................................................................................................... XII

SUMMARY OF ARGUMENTS......................................................................................... XIII

ARGUMENTS ADVANCED..................................................................................................1

ISSUE I: WHETHER THE PRESENT CASE IS MAINTAINABLE IN THE HIGH COURT OF BHANU
....................................................................................................................................................1

PRADESH OR NOT?....................................................................................................................1

[1.1] THE PETITIONER IN THE PRESENT MATTER HAS NO LOCUS STANDI TO FILE THE

WRIT PETITION..................................................................................................................................................... 1

[1.2.1] VIOLATES THE PROVISIONS OF THE CODE OF CRIMINAL PROCEDURE...................2

[1.2] THERE IS NO INFRINGEMENT OF FUNDAMENTAL RIGHTS................................................... 2

[1.2.1] RIGHT TO HEALTH AS A PART OF FUNDAMENTAL RIGHTS....................................2

[1.3] AVAILABILITY OF A STATUTORY ALTERNATE REMEDY IS A BAR TO FILE A WRIT

PETITION................................................................................................................................................................. 3

ISSUE II: WHETHER THE HIGH COURT OF BHANU PRADESH CAN DIRECT FOR

FORMULATION OF MENTAL HEALTH REGULATION RELATED LAWS AND POLICY

GUIDELINES?..............................................................................................................................4

[2.1] SEPARATION OF POWERS..................................................................................................................... 4

[2.1.1] ROLE OF THE EXECUTIVE AND LEGISLATIVE BRANCH..........................................5

[2.1.2] IMPORTANCE OF SEPARATION OF POWER................................................................5

[2.2] LACK OF EXPERT KNOWLEDGE....................................................................................................... 6

[2.2.1] ROLE OF JUDICIARY................................................................................................6

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[2.2.2] NEED FOR EXPERTISE..............................................................................................6

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ISSUE III: WHETHER THE
23 US BASED E-COMMERCE PLATFORM ‘FLIPDEAL’ IS LIABLE FOR
....................................................................................................................................................8

FACILITATING THE SALE OF UNPRESCRIBED MEDICINE?.......................................................8

[3.1] IT IS EXEMPTED FROM ITS LIABILITY UNDER THE IT ACT.................................................. 8

[3.1.1] SAFE HARBOUR PROVISION.....................................................................................9

[3.1.1.1] ACTUAL KNOWLEDGE OF THE INFORMATION..................................................9

[3.2] IT IS NOT RESTRICTED IN THE REPUBLIC OF SHALVAK...................................................... 10

[3.2.1] VIOLATIONS UNDER THE DRUGS AND COSMETICS ACT.......................................11

ISSUE IV: WHETHER THE PHARMACEUTICAL COMPANY ‘MOON PHARMACEUTICAL PVT.

LTD.’ IS LIABLE FOR MANUFACTURING THE DRUG WHICH IS CONTENDED TO BE

DANGEROUS FOR HEALTH?.....................................................................................................11

[4.1] EXCEPTIONS TO PRODUCT LIABILITY......................................................................................... 11

[4.2] COMPLIANCE WITH REGULATORY REGULATIONS................................................................ 12

[4.3] UNPRESCRIBED MEDICINE................................................................................................................ 13

PRAYER.................................................................................................................................15

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LIST OF ABBREVIATIONS

ABBREVIATIONS FULL FORM

& And
AIR All India Reporter

Anr. Another

Art Article

Consti. Constitution

CPA Consumer Protection Act

DPSP Directive Principles of

State Policy
FIR First Information Report

Govt. Govt.

ICESCR International Covenant on

Economic, Social and

Cultural Rights

INR Indian Rupee

IPC Indian Penal Code

IT Information Technology

Ltd. Limited

NDPS Narcotic Drugs and

Psychotropic Substances

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Act
No. Number

OHCHR Office of United Nation

High Commissioner for
Human Rights
Ors. Others

Para Paragraph

Pvt. Private

SCC Supreme Court Cases

SCR Supreme Court Report

UDHR
Universal Declaration of Human rights
UOI Union Of India

U. S United State

V. Versus

WHO World Health

Organisation
wrt. With Respect to

WP Writ Petition

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 INDEX OF AUTHORITIES

STATUTES

Code of Criminal Procedure, 1973 § 203, No. 02, Acts of Parliament, 1973 (India)......................2
Consumer Protection Act, 2019 § 2(16), No. 35, Acts of Parliament, 2019 (India)........................8
Consumer Protection Act, 2019 § 2(2), No. 35, Acts of Parliament, 2019 (India)..........................8
Drugs and Cosmetics Act, 1940 § 18(1)(c), No. 23, Acts of Parliament, 1940 (India).................11
INDIA CONST. art. 21....................................................................................................................2
INDIA CONST. art. 226, cl. 1.........................................................................................................2
INDIAN CONST. art. 14.................................................................................................................5
Prevention of Money Laundering Act, 2002 § 2(1)(u), No. 15, Acts of Parliament, 2002
(India)......................................................................................................................................2
Prevention of Money Laundering Act, 2002 § 24, No. 15, Acts of Parliament, 2002 (India).. 2,
8, 10
The Information Technology Act, 2000 § 2(w), No. 21, Acts of Parliament, 2000 (India).............8
The Information Technology Act, 2000 § 79(2)(c), No. 21, Acts of Parliament, 2000 (India). 9

OTHER AUTHORITIES

Department of Industrial Policy and Promotion, Press note 3.........................................................8

CONSTITUTIONAL PROVISIONS

INDIAN CONST. art. 121...............................................................................................................5

INDIAN CONST. art. 212...............................................................................................................5
INDIAN CONST. art. 50.................................................................................................................5

INDIAN CASES

Bholanath Mukherjee and Others vs. Ramakrishna Mission Vivekananda Centenary College
and Others, (2011) 5 SCC 464................................................................................................1
Divisional Manager,Aravalli Gold Club v. Chander Hass, (2008) 1 SCC 683................................5
Dr. Sangamitra Acharya & Anr. v. State (Nct of Delhi) & Ors, 2018 SCC OnLine Del 8450........7
Flipkart Internet (P) Ltd. v. State of U.P., 2022 SCC OnLine All 706............................................9
Hindalco Industries Ltd. v. Addl., CIT 2012 (211)..........................................................................3
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Humdard Dawakhana v. Union of India, 1960 AIR 554..........................................................12
I. C. Golaknath & Ors v. State of Punjab & Anr, 1967 AIR 1643.............................................4
Indira Gandhi v. Raj Narain, AIR 1975 SC...............................................................................5
Kalpraj Dharamshi v. Kotak Investment Advisors Ltd., (2021) 10 SCC 401............................3
Kartar Singh v. State of Punjab, 1994 SCC (3) 569...................................................................6
Kesavananda Bharti v. State of Kerala, AIR 1973 SC...............................................................5
Kunal Bahl v. State of Karnataka, 2021 SCC OnLine Kar 15706.............................................9
Manyatha Residents Association v. Bangalore Development Authority and Ors, 2013 SCC
OnLine Kar 699......................................................................................................................1
Myspace Inc v. Super Cassettes Limited, 2017 (69) PTC 1 Del................................................9
R.K. Garg v Union of India, AIR (1981) S.C. 2138..................................................................3
Rai Sahib Ram Jawaya Kanpur v. The State of Punjab, AIR 1955 SC 549...............................6
S.P Anand Indore v. H.D Deve Gowda & Ors., (1996) 6 SCC 73............................................1
Sharat Babu Digumarti v State of NCT Delhi, (2017) 2 SCC 18..............................................9
Shreya Singhal v. Union of India, 2015 (5) SCC 1....................................................................9
SP Gupta v. Union India, AIR 1982 SC 149..............................................................................6
State of Punjab vs. Mohinder Singh Chawla. AIR 1997 SC 122...............................................3
State of UP v. Jeet Singh Bisht, AIR (2007) 6 SCC 586...........................................................5
State of Uttar Pradesh and Others v. Mahindra and Mahindra Limited, (2011) 13 SCC 77......5
Supreme Court Advocates-on-Record Association and another v. Union of India, (1993) 4
SCC 441..................................................................................................................................6
Vijay Dhanka vs. Najima. Momtaj, (2014) 14 SCC 638............................................................2

ARTICLES

Ferguson, J. M. (2001, February). SSRI Antidepressant Medications: Adverse Effects and

Tolerability. Retrieved February 15, 2023, from
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC181155/.....................................................12
Kilbourne A.M., Beck K., Spaeth-Rublee B., Ramanuj P., O’Brien R.W., Tomoyasu N.,
Pincus H.A. Measuring and improving the quality of mental health care: A global
perspective. World Psychiatry. 2018;17:30–38. doi: 10.1002/wps.20482.............................7
Montesquieu, Charles de Secondat, baron de, 1689-1755. (1949), The spirit of the laws. New
York: Hafner Pub. Co.............................................................................................................4

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Saha1, K., Torous2, J., Kiciman3, E., Choudhury1, M. D., Technology, 1G. I. of, & Saha, C.
A. K. (n.d.). Understanding side effects of antidepressants: Large-scale longitudinal study
on social media data. JMIR Mental Health. Retrieved February 15, 2023, from
https://mental.jmir.org/2021/3/e26589..................................................................................12

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 STATEMENT OF JURISDICTION

The Petitioner has approached the Hon’ble Supreme Court of Galar under Article 32
and 136 of the Constitution of Galar. The Supreme Court of Galar has the jurisdiction
to hear the instant matter.

Article 226 of the Constitution:

226. Power of High Courts to issue certain writs
(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout
the territories in relation to which it exercises jurisdiction, to issue to any person or
authority, including in appropriate cases, any Government, within those territories
directions, orders or writs, including writs in the nature of habeas corpus, mandamus,
prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the
rights conferred by Part III and for any other purpose

(2) The power conferred by clause (1) to issue directions, orders or writs to any Government,
authority or person may also be exercised by any High Court exercising jurisdiction in
relation to the territories within which the cause of action, wholly or in part, arises for the
exercise of such power, notwithstanding that the seat of such Government or authority or the
residence of such person is not within those territories

(3) Where any party against whom an interim order, whether by way of injunction or stay or
in any other manner, is made on, or in any proceedings relating to, a petition under clause
(1), without

(a) furnishing to such party copies of such petition and all documents in support of the plea
for such interim order; and

(b) giving such party an opportunity of being heard, makes an application to the High Court
for the vacation of such order and furnishes a copy of such application to the party in whose
favour such order has been made or the counsel of such party, the High Court shall dispose

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of the application within a period of two weeks from the date on which it is received or from
the date on which the copy of such application is so furnished, whichever is later, or where
the High Court is closed on the last day of that period, before the expiry of the next day
afterwards on which the High Court is open; and if the application is not so disposed of, the
interim order shall, on the expiry of that period, or, as the case may be, the expiry of the aid
next day, stand vacated

(4) The power conferred on a High Court by this article shall not be in derogation of the
power conferred on the Supreme court by clause (2) of Article 32.

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STATEMENT OF FACTS

INTRODUCTION

According to the Constitution of Republic of Shalvak, the country is a federal one. It is in

accordance with international documents such as the Universal Declaration of Human Rights,
the Constitution of the Republic of Shalvak guarantees six Fundamental Rights, one of which
is the Right to Life (Article 21). If a person's human rights have been violated, the
Constitution also provides remedies.
The government has a well-developed system of checks and balances to prevent abuses of
authority and robust regulatory bodies to investigate and prosecute cases of human rights
abuse.

BACKGROUND
The police in the Chandrikapur district of Bhanu Pradesh, a province of the Republic of
Shalvak, received a report of an unnatural death in a family of six on December 6, 2022.
According to the findings of the investigation, Mr. Nandvan, the family breadwinner, was
very depressed as a result of persistent harassment and stress at work. Antidepressants in the
form of the pill 'Calioregamantle' were a regular part of his routine. This medication was not
obtained through a doctor’s prescription. Nandvan looked up information online about the
most effective nonprescription antidepressants and ordered some of them through a
pharmacy.

Since he is the primary breadwinner for his family—consisting of his wife, their two young
children, and his elderly parents—he has lived in constant fear that he may lose his job owing
to office politics.

On December 4th, 2022, he and his boss got into an argument at work. He then tossed his bag
at the manager and began screaming at him. The manager warned him that he would be
subject to reprimand. After Nandvan returned home, he ate dinner with his family, but within
two hours, everyone had perished from an overdose of Calioregamantle. Nandvan left a
suicide note saying he was under great pressure, and no one was to blame for his death.

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DISPUTE
The death is reported as suspicious to the police. Both the pharmaceutical firm moon
pharmaceutical Pvt. Ltd. and the online marketplace Flipdeal were named in the chargesheet
as vendors of calioregamantle. When Nandvan's case was registered in court, the media took
notice since he had been the victim of psychological abuse and occupational torture.
Furthermore, there were no mental health or counselling policies in existence. In addition to
this, a firm called "Moon pharmaceutical Pvt.Ltd." in the Republic of Shalvak was producing
calioregamantle,

Flipdeal, an American-hosted e-commerce platform, is the one that makes it possible to sell
this medicine online. The people of the Republic of Shalvak have access to the platform.
There is a record that indicates the drug was "available" during the time period of the
Investigation. The website devoted to the drug claims it is the most effective treatment for
depression currently available.

It's unlikely to produce any serious adverse effects, though some lightheadedness is possible.
The influence on the nervous system will not be severe. The instructions stated that the
medication should be taken twice daily after meals and that it would have a sedative effect.
Flipkart does not have a local representative or office in the country to handle complaints.
Due to the ease of access provided by the platform, as well as the transparency of the
platform's user reviews, some users may be enticed to purchase large quantities of the
medicine without first investigating its potential risks.

An organisation called the "Centre for Therapeutic Legal Healing" took notice of this and
filed a writ petition with the High Court, citing Nandvan's and his family tragic death and
asking the court to consider (i) directing a policy guideline for workplace mental health
regulation and (ii) hold the e-commerce platform responsible for misleading general
consumers about the availability of the "dangerous" drug.

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ISSUES RAISED

ISSUE I: WHETHER THE PRESENT CASE IS MAINTAINABLE IN THE HIGH COURT OF BHANU
PRADESH OR NOT?

ISSUE II: WHETHER THE HIGH COURT OF BHANU PRADESH CAN DIRECT FOR
FORMULATION OF MENTAL HEALTH REGULATION RELATED LAWS AND POLICY

GUIDELINES?

ISSUE III: WHETHER THE US BASED E-COMMERCE PLATFORM ‘FLIPDEAL’ IS LIABLE

FOR FACILITATING THE SALE OF UNPRESCRIBED MEDICINE?

ISSUE IV: WHETHER THE PHARMACEUTICAL COMPANY ‘MOON PHARMACEUTICAL PVT.

LTD.’ IS LIABLE FOR MANUFACTURING THE DRUG WHICH IS CONTENDED TO BE
DANGEROUS FOR HEALTH?

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SUMMARY OF ARGUMENTS

ISSUE I: WHETHER THE PRESENT CASE IS MAINTAINABLE IN THE HIGH COURT OF BHANU
PRADESH OR NOT?

It is humbly submitted before the High Court of Bhanu Pradesh that the case is maintainable
before the high court as the petition is filed by an NGO on behalf of people and not in respect
to its own individual capacity, and hence, the petitioner has no locus standi. It is further
contended that there is no violation of any fundamental right as right to health is not a
fundamental right but a part of the fundamental right to life, therefore, it is not expressly
guaranteed under article 226 of the constitution. Finally, it is humbly presented before the
court that presence of an alternate remedy poses as a bar to file a writ petition.

ISSUE II: WHETHER THE HIGH COURT OF BHANU PRADESH CAN DIRECT FOR
FORMULATION OF MENTAL HEALTH REGULATION RELATED LAWS AND POLICY

GUIDELINES?

It is humbly contended before the Hon’ble High Court of Bhanu Pradesh that the High Court
does not have the power to direct for formulation of Mental Health Regulation related laws
and policy guidelines. This contention is sought on the basis of 1. Separation of Powers 2.
Lack of Expert Knowledge.

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ISSUE III: WHETHER THE US BASED E-COMMERCE PLATFORM ‘FLIPDEAL’ IS LIABLE

FOR FACILITATING THE SALE OF UNPRESCRIBED MEDICINE?

It is humbly submitted before the court that Flipdeal is not liable for the illicit sale of
unprescribed medicine and is exempted from such liability under the IT act as it acts as a
mere intermediary and has no actual knowledge regarding the transaction. Further, it is
submitted that Flipdeal is not restricted in the republic of Shalyak as the sale of
Calioregamantle is not prohibited in Shalyak and requires no prescription under the Drugs
and Cosmetics Act.

ISSUE IV: WHETHER THE PHARMACEUTICAL COMPANY ‘MOON PHARMACEUTICAL PVT.

LTD.’ IS LIABLE FOR MANUFACTURING THE DRUG WHICH IS CONTENDED TO BE
DANGEROUS FOR HEALTH?

It is humbly contended before the Hon’ble Court of Bhanu Pradesh that pharmaceutical
company ‘Moon Pharmaceutical Pvt. Ltd.’ will not be liable for manufacturing the drug
which is contended to be dangerous for health. This contention is sought on the basis of 1.
Exceptions to Product Liability 2. Compliance with Regulatory Regulations 3. Unprescribed
Medicine.

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 ARGUMENTS ADVANCED

ISSUE I: WHETHER THE PRESENT CASE IS MAINTAINABLE IN THE HIGH COURT OF BHANU
PRADESH OR NOT?

It is humbly submitted before Hon’ble High Court of Bhanu Pradesh that the present case is
maintainable before the High Court of Bhanu Pradesh as [1.1] The petitioner in the present
matter has no locus standi to file the writ petition [1.2] There is no violation of Fundamental
Rights and [1.3] Availability of a Statutory alternate remedy is a bar to file a writ petition

[1.1] THE PETITIONER IN THE PRESENT MATTER HAS NO LOCUS STANDI TO FILE
THE WRIT PETITION

1. In cases, where a writ petition is filed under Article 226 of the Constitution, for
enforcement of a fundamental right or any legal right, such a petitioner must have
a locus standi to do so by demonstrating that there is a legal wrong done to him by
violation of his right and therefore, being an aggrieved person, has the right to file
the writ petition and not otherwise.1
2. In cases where the petitioner is not a living person and is only an NGO, rights of such an
NGO are different from rights of an individual person. Petitioner can only have locus
standi if any personal rights of the Petitioner were involved as an NGO but not on account
of petitioners whose Fundamental or legal rights have been violated.2
3. No one has a right to the waiver of the locus standi rule and the Court should permit it
only when it is satisfied that the carriage of proceedings is in the competent hands of a
person who is genuinely concerned in public interest and is not moved by other
extraneous considerations.3
4. In the present case, Centre for Therapeutic Legal Healing is an NGO which has filed the
writ petition referring to the demise of Nandvan and his family members due to heavy
dosage of Calioregamantle4 which is an antidepressant. The writ petition is regarding the

1 Manyatha Residents Association v. Bangalore Development Authority and Ors, 2013 SCC OnLine Kar 699.
2 Bholanath Mukherjee and Others vs. Ramakrishna Mission Vivekananda Centenary College and Others,
(2011) 5 SCC 464.
3 S.P Anand Indore v. H.D Deve Gowda & Ors., (1996) 6 SCC 73.
4 Moot Proposition, para 6, NHRC-RGNUL Moot Elimination 2023.
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 need for mental health policies in Shalvak and the liability of E-commerce platform
Flipdeal in making it available for the general public.5
5. Since, the writ petition is filed by an NGO on account of people and not in its individual
capacity or interest, therefore, it has no locus standi to file this writ petition.

[1.2.1] VIOLATES THE PROVISIONS OF THE CODE OF CRIMINAL PROCEDURE

6. Section 202 of the CrP.C,6 mandates that where the accused resides beyond the
jurisdiction of the Court, such court ‘shall’ postpone issuance of process and conduct an
inquiry in the manner provided thereunder as upheld by the Apex Court in the case of
Vijay Dhanka v. Najima Momtaj.7
7. In the present case, Flipdeal is an E-Commerce platform hostel in the United States of
America8 which is outside the jurisdiction of the Magistrate and also does not have any
office within the territorial jurisdiction of the Magistrate. In view of the above, it is
required for the Magistrate to conduct a mandatory enquiry as per Section 202 (2) of the
Cr.P.C before maintaining the writ petition filed by the NGO.

[1.2] THERE IS NO INFRINGEMENT OF FUNDAMENTAL RIGHTS

8. According to Article 226(1)9 of the Constitution of India, each High Court within
India’s territorial jurisdiction has the ability and power to issue orders, instructions,
and writs, to any individual or authority, including the government, for the
enforcement of Part III of the Indian Constitution or basic fundamental rights and
other legal rights within its own jurisdiction.

[1.2.1] RIGHT TO HEALTH AS A PART OF FUNDAMENTAL RIGHTS

9. Article 2110 ensures every person right to life and personal liberty. Both the terms, life
and personal liberty has been given a very expansive and wide amplitude covering a
variety of rights. Its deprivation is only possible through the procedure established by
law.

5 Moot Proposition, para 10, NHRC-RGNUL Moot Elimination 2023.

6 Code of Criminal Procedure, 1973 § 203, No. 02, Acts of Parliament, 1973 (India).
7 Vijay Dhanka v. Najima. Momtaj, (2014) 14 SCC 638.
8 Moot Proposition, para 9c, NHRC-RGNUL Moot Elimination 2023.
9 INDIA CONST. art. 226, cl. 1.
10INDIA CONST. art. 21.
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10. In State of Punjab & Ors v Mohinder Singh Chawla11 the apex court held that the
right to health is fundamental to the right to life. It implies that it is only crucial for a
fundamental right, however, it is not a fundamental right in itself.
11. Presumption is always in favour of the constitutionality of an enactment, since it has to be
assumed that the legislature understands and correctly appreciates the needs of its own
people and its discriminations are based on adequate grounds.12
12. The Constitution of Shalvak does not expressly guarantee a fundamental right to
health. Mental Health is not recognised as a part of Right to Health in the Republic of
Shalvak. Therefore, policies regarding mental health at workplace does not fall under
the ambit of Hon’ble High Court of Bhanu Pradesh.
13. If Courts do no restrict the free flow of such cases in the name of NGO, the traditional
litigation will suffer and the Courts of law, instead of dispensing justice, will have to take
upon themselves Administrative and executive functions.13

[1.3] AVAILABILITY OF A STATUTORY ALTERNATE REMEDY IS A BAR TO FILE A

WRIT PETITION

14. The principle of exhaustion of alternative remedy is that the court will not issue a
prerogative writ when an adequate alternative remedy is available. The Court in Hindalco
Industries Ltd. v. Addl.14 refused to entertain a petition under Article 226 of the
Constitution on the ground of alternative remedy.
15. When filing of the writ petition is claimed to be a bona fide act of the petitioner who is
very well aware of existing statutory alternate remedy, then, the petitioner is not entitled
to take an umbrella of Article 226 of the High Court.15
16. In the present case, Centre for Therapeutic Healing has an alternate remedy available
under the Consumer Protection Act, 2019 which is not availed by them. This clearly
poses a bar on the NGO to file a writ petition under Article 226 of the Constitution of
Shalvak.

11 State of Punjab vs. Mohinder Singh Chawla. AIR 1997 SC 122.

12 R.K. Garg v Union of India, AIR (1981) S.C. 2138.
13 Supra, note 3.
14 Hindalco Industries Ltd. v. Addl., CIT 2012 (211).
15 Kalpraj Dharamshi v. Kotak Investment Advisors Ltd., (2021) 10 SCC 401.

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 ISSUE II: WHETHER THE HIGH COURT OF BHANU PRADESH CAN DIRECT FOR
FORMULATION OF MENTAL HEALTH REGULATION RELATED LAWS AND POLICY

GUIDELINES?

It is humbly contended before the Hon’ble High Court of Bhanu Pradesh that the High Court
does not have the power to direct for formulation of Mental Health Regulation related laws
and policy guidelines. Thus, it is humbly submitted that the Hon’ble Court, can decide
disputed questions of fact for: [2.1] Separation of Powers and [2.2] Lack of Expert
Knowledge.
[2.1] SEPARATION OF POWERS

17. The doctrine of Separation of Powers was proposed by Montesquieu 16, “When the
legislative and executive powers are united in the same person, or in the same body or
magistrates, there can be no liberty. Again, there is no liberty if the judicial power is not
separated from the legislative and executive powers. Where it joined with the legislative
power, the life and liberty of the subject would be exposed to arbitrary control, for the
Judge would then be the legislator.
18. Where it joined with the executive power, the Judge might behave with violence and
oppression. There would be an end of everything, were the same man or same body,
whether of the nobles or of the people, to exercise those three powers, that of enacting
laws, that of executing the public resolutions, and of trying the causes of individuals”.
19. The doctrine of Separation of Powers is a fundamental principle of democratic
governance, and the Constitution brings in actuality the distinct constitutional entities
namely, the Union territories, Union and State17. It also has three major instruments
namely, judiciary, executive and legislature. It demarcates their jurisdiction minutely and
expects them to exercise their function without interfering with others functions. They
should function within their scope18.
20. The legislative branch of government is assigned the power to create laws, while the
judiciary is tasked with interpreting and enforcing those laws. This division of powers is

16 Montesquieu, Charles de Secondat, baron de, 1689-1755. (1949), The spirit of the laws. New York: Hafner
Pub. Co.
17 I. C. Golaknath & Ors v. State of Punjab & Anr, 1967 AIR 1643.
18 Ibid.
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 meant to ensure that each branch of government serves as a check and balance on the
others, preventing one branch from becoming too powerful 19. This is argued on the basis
of 1. Role of the Executive and Legislative Branch, 2. Importance of Separation of
Powers.

[2.1.1] ROLE OF THE EXECUTIVE AND LEGISLATIVE BRANCH

21. Article 50 of the Constitution20 of The Republic of Shalvak provides for the separation of
judiciary from the executive, whereas Article 12121 and 21222 of the Constitution prohibits
the Supreme Court and the High Court from inquring into the proceedings of Parliament
and the State Legislatures respectively.
22. Separation of powers is a part of the basic structure of the Constitution and cannot be
amended23. The Judiciary should not play an active role in the creation of laws and
regulations, as this is the role of the legislative branch 24. The role of the judiciary is to
interpret the laws and regulations that have been created, and to ensure that they are being
applied fairly and consistently25.
23. When the judiciary directs the formulation of regulations, it could be seen as overstepping
its bounds and infringing upon the power of the legislative branch. This could lead to a
breakdown in the separation of powers and a concentration of power in the judiciary,
which could ultimately undermine the stability and efficiency of the government 26.
24. Hence, by directing the formulation of mental health regulations, the High Court may be
seen as encroaching on the policymaking authority of the executive branch and
overstepping its role as a judicial body.

[2.1.2] IMPORTANCE OF SEPARATION OF POWER

19 Indira Gandhi v. Raj Narain, AIR 1975 SC.

20 INDIAN CONST. art. 50.
21 INDIAN CONST. art. 121.
22 INDIAN CONST. art. 212.
23 Kesavananda Bharti v. State of Kerala, AIR 1973 SC.
24 State of UP v. Jeet Singh Bisht, AIR (2007) 6 SCC 586.
25 State of Uttar Pradesh and Others v. Mahindra and Mahindra Limited, (2011) 13 SCC 77.
26 Divisional Manager,Aravalli Gold Club v. Chander Hass, (2008) 1 SCC 683.
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25. The Separation of Powers is designed to ensure that each branch of government performs
its own distinct functions and to prevent any one branch from becoming too powerful27. It
has helps in maintaining the independence of each branch.
26. The doctrine ensures that the different branches of government act as checks and balances
on each other which prevents abuse of power by one branch as the other branches can
review and challenge their actions28.
27. Hench, by directing the formulation of mental health regulations, the High Court may be
perceived as taking on a role that is beyond its jurisdiction and blurring the lines between
the different branches of the government.

[2.2] LACK OF EXPERT KNOWLEDGE

28. Formulation of regulations requires a detailed understanding of the issue and relevant
policies which may not be within the expertise of the judiciary. The court may not have
the necessary knowledge and understanding of the complexities of mental health to make
informed decisions on what regulations are needed. This is argued because 1. Role of
Judiciary 2. Need for Expertise.

[2.2.1] ROLE OF JUDICIARY

29. The role of the judiciary is primarily to interpret the law and resolve disputes, rather than
to make policy decisions or create regulations 29. The independence of the judiciary is a
cornerstone of democratic governance, and it is important for the judiciary to maintain its
impartiality and objectivity in all matters, including policymaking 30.
30. The perception that the judiciary is engaging in policymaking can reduce public trust in
the government and the regulatory process. This can lead to resistance to the regulations
and make it more difficult for the government to implement them effectively.
31. Hence, by directing the formulation of mental health regulations, the court is stepping
outside of its traditional role and into the realm of policymaking, which could impact its
impartiality and objectivity.
[2.2.2] NEED FOR EXPERTISE

27 Rai Sahib Ram Jawaya Kanpur v. The State of Punjab, AIR 1955 SC 549.
28 Kartar Singh v. State of Punjab, 1994 SCC (3) 569.
29 Supreme Court Advocates-on-Record Association and another v. Union of India, (1993) 4 SCC 441.
30 SP Gupta v. Union India, AIR 1982 SC 149.
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32. Mental Health is a complex and muti-disciplinary field that requires specialized
knowledge and understanding. Regulations aimed at addressing mental health issues
requires an in-depth understanding of the scientific, medical, and social aspects of mental
health and the various remedies available.
33. Effective policymaking in the field of mental health also requires input from key
stakeholders, including individuals affected by mental health issues, healthcare providers,
along with updates on latest research, best practices, and input from mental health
professionals and experts.
34. Mental health regulations should be based on the best available evidence and should be
regularly reviewed and updated as new evidence emerges 31. Without the necessary
expertise, the court may not be able to ensure that the regulations are evidence-based and
that they are regularly updated as new information becomes available.
35. The Court may lack the necessary knowledge and understanding of the complexities of
mental health to make informed decisions on the regulations that are required as well as
the necessary expertise to engage with such stakeholders and consider their perspectives.
36. Mental Health Regulations so formulated without expert knowledge 32 and input from key
stakeholders may not effectively address the underlying issues and could lead to
unintended consequences leading to a negative impact on the health and well-being of
individuals affected by mental health issues.
37. Mental health regulations have the potential to significantly impact the lives of those
affected by mental health issues. Without the necessary expertise 33, the court may not be
able to anticipate the potential consequences of its directives, and the regulations it directs
may have unintended negative impacts on those they are intended to help.
38. Hence expertise is a critical factor to consider when evaluating the role of the judiciary in
directing the formulation of mental health regulations.

31 Kilbourne A.M., Beck K., Spaeth-Rublee B., Ramanuj P., O’Brien R.W., Tomoyasu N., Pincus H.A.
Measuring and improving the quality of mental health care: A global perspective. World Psychiatry.
32 Dr. Sangamitra Acharya & Anr. v. State (Nct of Delhi) & Ors, 2018 SCC OnLine Del 8450
33 Ibid.

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ISSUE III: WHETHER THE US BASED E-COMMERCE PLATFORM ‘FLIPDEAL’ IS LIABLE FOR
FACILITATING THE SALE OF UNPRESCRIBED MEDICINE?

It is humbly submitted before Hon’ble High Court of Bhanu Pradesh that the US based E-
commerce platform ‘Flipdeal’ is not liable for facilitating the sale of unprescribed
medicine because [3.1] It is exempted from its liability under the IT Act and [3.2] It is not
restricted in the Republic of Shalvak.

[3.1] IT IS EXEMPTED FROM ITS LIABILITY UNDER THE IT ACT

39. Intermediary is defined under Section 2(1)(w) 34 of the IT, Act as “any person who on
behalf of another person receives, stores or transmits that record or provides any service
with respect to that record and includes telecom service providers, network service
providers, internet service providers, web-hosting service providers, search engines,
online payment sites, online-auction sites, online-market places and cyber cafes.”
40. In the present case, Flipdeal is an intermediary as it only facilitates the sale of
Calioregamantle and cannot be termed as the ‘seller’ of the drug. It provides a common
platform to the buyers and the sellers.
41. Precisely, Flipdeal is a marketplace model of E-commerce which means that it provides
of an information technology platform on a digital & electronic network to act as a
facilitator between buyer and seller.35
42. According to Press Note 3 of 2016 issued by the Department of Industrial Policy and
Promotion, Ministry of Commerce and Industry, in marketplace model, any
warrantee/guarantee of goods and services sold will be responsibility of the Seller.36
43. According to sub clause (2) of Rule 2 of E-Commerce Rules, “These rules shall apply to
an e-commerce entity which is not established in India, but systematically offers goods or
services to consumers in India.” However, the word systematically is not defined and is
open for interpretation.37
44. If a foreign website sells goods online and does not categorically offer its products only in
India which means that it has a global outreach. It raises a moot point that whether these

34 The Information Technology Act, 2000 § 2(w), No. 21, Acts of Parliament, 2000 (India).
35 Consumer Protection Act, 2019 § 2(16), No. 35, Acts of Parliament, 2019 (India).
36 Department of Industrial Policy and Promotion, Press note 3.
37 Consumer Protection Act, 2019 § 2(2), No. 35, Acts of Parliament, 2019 (India).
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 rules would be applicable on such websites. Certainly, these rules cannot be imposed on
other nations without undergoing their process of ratification.38
45. The given factual matrix is silent about the global outreach of Flipdeal. Assuming not
admitting that Flipdeal offers its products only in India then Flipdeal shall be exempted
from its liability under the IT Act.

[3.1.1] SAFE HARBOUR PROVISION

46. According to Section 79(2)(c)39 of the IT Act, an intermediary shall not be liable for any
third-party information, data, or communication link made available or hosted by him if
it has observed due diligence while discharging its duties under the Act.
47. The Court held in the case of Kunal Bahl v. State of Karnataka,40 that since Snapdeal
was a marketplace model e-commerce entity, it would be eligible for exemption from
liability under S.79 and under Rule 5 of the Consumer Disputes (e-Commerce) Rules
2020.
48. The Supreme Court of India defined the manner and scope of operation of the safe-harbor
provision for intermediaries under S. 79 of the IT Act, and allowed exemption to
intermediaries from criminal liability in the case of Sharat Babu Digumarti v State of
NCT Delhi.41
49. In the present case, the information about Calioregamantle is published on Flipdeal by
Moon Pharmaceuticals Ltd. It cannot be expected that the provider or enabler of the
online marketplace is aware of all the products sold on its website/marketplace as upheld
in the case of Flipkart Internet Private Limited v. State of U.P.42
[3.1.1.1] Actual Knowledge of the Information
50. An intermediary is not liable for any third-party information unless it has ‘actual
knowledge’ about the information.43 An intermediary receives ‘actual knowledge’,
pursuant to an order of a Court of law, to remove infringing material, it should act on
such knowledge and remove the impugned content.44 If intermediaries are required to
act on

38 Ibid.
39 The Information Technology Act, 2000 § 79(2)(c), No. 21, Acts of Parliament, 2000 (India).
40 Kunal Bahl v. State of Karnataka, 2021 SCC OnLine Kar 15706.
41 Sharat Babu Digumarti v State of NCT Delhi, (2017) 2 SCC 18.
42 Flipkart Internet (P) Ltd. v. State of U.P., 2022 SCC OnLine All 706.
43 Shreya Singhal v. Union of India, 2015 (5) SCC 1.
44 Myspace Inc v. Super Cassettes Limited, 2017 (69) PTC 1 Del.
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 complaints by common public, there will be millions of complaints and it would be
difficult for an intermediary to assess them in a limited period of time.45
51. Flipdeal does not have ‘actual knowledge’ of the information posted by Moon
Pharmaceuticals Pvt. Ltd. about Calioregamantle claiming it to be the best anti-depressant
and not having much side effects as there is no official order of a Court of law to the
same. It has, therefore, observed due diligence.
52. Thus, it is humbly submitted before this Hon’ble Court that Flipdeal had no role in the
said transaction. It merely provided access to a communication system over which
information is made available to third parties.
53. In the present instance, the information regarding the Calioregamantle offered for sale by
Moon Pharmaceuticals Pvt. Ltd. was enabled for display to Nandvan on the online
marketplace of Flipdeal. Flipdeal as an intermediary has no control on what users may
post on its platform.

[3.2] IT IS NOT RESTRICTED IN THE REPUBLIC OF SHALVAK.

54. Under Section 10A46 of the Drugs and Cosmetics Act Central Government has the power
to prohibit import of drugs and cosmetics in public interest, if the Central Government is
satisfied that the use of any drug or cosmetic is likely to involve any risk to human beings
or animals or that any drug does not have the therapeutic value claimed for it or contains
ingredients and in such quantity for which there is no therapeutic justification and that in
the public interest it is necessary or expedient so to do.
55. In the given factual matrix, Flipdeal is not restricted in the Republic of Shalvak. 47 Centre
for Therapeutic Legal Healing has claimed that Calioregamantle is a ‘dangerous’ drug 48
but still it is not prohibited by the Government of Shalvak under the Drugs and Cosmetics
Act.
56. Calioregamantle is unprescribed in the Republic of Shalvak i.e., prescription is not
required to purchase it.49 The factual matrix is silent about the contents of the medicine
and it is the mere assumption of the Centre for Therapeutic Legal Healing on the basis of
which it is holding Calioregamantle ‘dangerous.’

45 Supra, note 22.

46 Drugs and Cosmetics Act, 1940 § 10A, No. 23, Acts of Parliament, 1940 (India).
47 Moot Proposition, para 9b, NHRC-RGNUL Moot Elimination 2023.
48 Supra, note 5.
49 Supra, note 28.
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 [3.2.1] VIOLATIONS UNDER THE DRUGS AND COSMETICS ACT
57. Section 18(1)(c)50 of the Drugs and Cosmetics Act, 1949 applies to a manufacturer of a
drug or cosmetic, coming within the purview and ambit of the Act. Such manufacture is
also required to be for sale or for distribution of any drug or cosmetic.
58. The only allegation in the present matter is as regards Flipdeal having made available its
platform for sale by Moon Pharmaceuticals Pvt. Ltd of Calioregamantles. There are no
allegations that Flipdeal has either manufactured for sale or distributed or sold, or stocked
or exhibited or offered for sale, any drug or cosmetic.
59. Though, the platform is owned and operated by Flipdeal, it is Moon Pharmaceuticals Pvt.
Ltd. who has exhibited and offered its products for sale on the Flipdeal's platform.
Flipdeal being an intermediary is exempted from criminal prosecution as aforestated.
60. Conclusively, Flipdeal would not be responsible and/or liable for sale of any item not
complying with the requirements under the Drugs and Cosmetics Act, 1949 on its
platform by Moon Pharmaceuticals Pvt. Ltd. Since, the essential ingredients of Section18
(1)(c) of the Act are not fulfilled, Flipdeal cannot be prosecuted for the offence under
Section 27(b)(ii) of the Act.

ISSUE IV: WHETHER THE PHARMACEUTICAL COMPANY ‘MOON PHARMACEUTICAL PVT.

LTD.’ IS LIABLE FOR MANUFACTURING THE DRUG WHICH IS CONTENDED TO BE
DANGEROUS FOR HEALTH?

It is humbly contended before the Hon’ble Court of Bhanu Pradesh that pharmaceutical
company ‘Moon Pharmaceutical Pvt. Ltd.’ will not be liable for manufacturing the drug
which is contended to be dangerous for health. Thus, it is humbly submitted that the Hon’ble
Court, can decide disputed questions of fact for: [4.1] Exceptions to Product Liability, [4.2]
Compliance with Regulatory Regulations and [4.3] Unprescribed Medicine.

[4.1] EXCEPTIONS TO PRODUCT LIABILITY

50 Drugs and Cosmetics Act, 1940 § 18(1)(c), No. 23, Acts of Parliament, 1940 (India).
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61. It is humbly contended that Section 87 of the Consumer Protection 2019 51 lists out
exceptions to product liability action. Section 87(3) 52 states that a product manufacturer
shall not be liable for failure to instruct or warn about a danger which is obvious or
commonly known to the user or consumer of such product or which, such user or
consumer, out to have known, considering characteristics of such product.
62. It is common knowledge that Antidepressants are powerful drugs that can have significant
side effects if not taken in a controlled manner. One of the side effects to it can also lead
to suicidal thoughts or behaviors53.
63. Given the potential risks associated with antidepressants, it is important they are used in a
controlled manner and are aware of the potential side effects of antidepressants 54.
64. Furthermore, self-medication in respect of diseases of serious nature has a deleterious
effect on the health of the community as well as the well-being of the person55.
65. According to the factual matrix, Mr. Nandvan was suffering from depression and
searched on the internet about the best anti-depressant medicines available without a
prescription and purchased the same.56 Mr.Nandvan was ignorant towards the side effects,
danger of an anti-depressant and high power of the same. He was also negligent about the
seriousness of his health and failed to consult a medical practitioner before taking such
high doses of the drug.
66. The ignorance and negligence on behalf of Mr.Nandvan not only caused his own suicide
but also took lives of his family members.

[4.2] COMPLIANCE WITH REGULATORY REGULATIONS

67. It is humbly contended that a pharmaceutical industry operates in a highly regulated

environment and drugs are subject to approval by regulatory agencies, such as Central
Drugs Standard Control Organization (CDSCO). The approval process for drugs are
51 The Consumer Protection Act, 2019 § 87, Acts of Parliament, 2019 (India)
52 The Consumer Protection Act, 2019 § 87 (3), Acts of Parliament, 2019 (India)

53 Saha1, K., Torous2, J., Kiciman3, E., Choudhury1, M. D., Technology, 1G. I. of, & Saha, C. A. K.
(n.d.). Understanding side effects of antidepressants: Large-scale longitudinal study on social media
data. JMIR Mental Health. Retrieved February 15, 2023, from https://mental.jmir.org/2021/3/e26589.

54 Ferguson, J. M. (2001, February). SSRI Antidepressant Medications: Adverse Effects and Tolerability.
Retrieved February 15, 2023, from https://www.ncbi.nlm.nih.gov/pmc/articles/PMC181155/.
55 Humdard Dawakhana v. Union of India, 1960 AIR 554.
56 Moot Proposition, para 5, NHRC-RGNUL Moot Elimination 2023.

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 lengthy and expensive, and companies may not have access to all information about a
drug's potential risks or side effects until it has been on the market for some time.
68. It is further contended that there may be an instance that a drug may be deemed safe and
effective based on the available evidence at the time of approval, but later new
information may emerge that reveals previously unknown risk or side effects.
69. Hence, according to the facts of the case Moon Pharmaceuticals had obtained all
regulatory and licensing requirements from the regulatory authority CDSCO thus the
license was granted on the basis of the safety of the drug. It is contended that only on the
basis of the license was the drug manufactured and hence sold thus there was no
negligence on our part and thus Moon pharmaceuticals cannot be held liable.

[4.3] UNPRESCRIBED MEDICINE

70. It is humbly contended that Calioregamantle medicine is a restricted medicine in other

jurisdictions57 as unprescribed doses could cause heart attack. In the Republic of Shalvak,
this medicine is unprescribed, which means there is no requirement of a prescription to
purchase this medicine which establishes the safety of the medicine since no prescription
or consultation was required in order to intake it.
71. However, the absence of a prescription does not mean that an individual can self-
medicate and freely choose the amount and time of dosages. Unprescribed medicines can
be freely purchased however the amount of dose along with the timeline needs to be
regulated by a medical practitioner and it becomes the duty of the individual taking such a
medicine to undergo a prior consultation. Mr.Nandvan after purchasing the medicine
should have consulted a medical practioner as to the amount and time of dosage as well as
the manner in which the medicine was to be taken,
72. It is further contended that high doses of any medicine is harmful and could lead to
serious repercussions like death. According to the factual matrix, it is clearly stated Mr.
Nandvan died due to the high dosage of the medicine and not owning to the ingredients of
the drug. Hence, Moon pharmaceuticals cannot be held liable as Mr.Nandvan took high
dosage of Calioregamantle which led to a serious effect and caused death.
73. It is also contended that since a suicide note was found with Mr.Nandvan, it is clear that
Mr.Nandvan intended to commit suicide and was aware about the fact that a high dosage

57 Supra, note 47.

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 of Calioregamantle medicine would lead to the same, thus making it clear that
Mr.Nandvan took a high dosage intentionally and was aware about the effects of the
same.

PRAYER

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Wherefore it is prayed, considering the issues raised, arguments advanced, and
authorities cited, that the Hon'ble High Court of Bhanu Pradesh be pleased to:

1. DECLARE that the present case is maintainable in High Court of Bhanu Pradesh

2. DIRECT the formulation of Mental Health Regulation Related laws and Policy Guidelines
in the state

3. HOLD the E-commerce platform ‘Flipdeal’ liable for facilitating the sale of Unprescribed
medicine.

4. HOLD the ‘Moon Pharmaceutical Pvt.Ltd.’ liable for manufacturing the drug which is
dangerous for health.

And/Or pass any other Order, Direction, or Relief that it may deem fit in the best interests
of Justice, Equity and Good Conscience.

For this act of kindness, the Petitioner shall duty bound forever pray.

SD/-
COUNSEL ON BEHALF OF THE RESPONDENT

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