Team Code: T-09

BEFORE THE HONBLE HIGH COURT OF JUDICATURE AT

JUSTICE CITY
Criminal Appeal No. ___________ of 2014

UNDER SECTION 36-B OF THE NARCOTIC DRUGS AND PSYCHOTROPIC

SUBSTANCES ACT, 1985

DR.CHARLIE SHINE & ORS.......APPELLANTS

v.

STATE....RESPONDENT

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

3rd NALSAR-GURCHARAN SINGH TULSI MEMORIAL CRIMINAL LAW MOOT

COURT COMPETITION, 2014

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

TABLE OF CONTENTS
TABLE OF CONTENTS........................................................................................................II
INDEX OF AUTHORITIES.................................................................................................IV
STATEMENT OF JURISDICTION....................................................................................IX
STATEMENT OF FACTS......................................................................................................X
STATEMENT OF ISSUES..................................................................................................XII
SUMMARY OF ARGUMENTS........................................................................................XIII
ARGUMENTS ADVANCED...................................................................................................1
I.

THAT

THE

COURT

OF SESSIONS HAD THE JURISDICTION TO TRY THE INSTANT

CASE.......................................................................................................................................1

II. THAT

THERE

WERE

NO

IRREGULARITIES

AND

ILLEGALITIES

IN

THE

INVESTIGATION........................................................................................................................

........................................................................................................................................2
A.

That Mr. Bulbul Pandey was duly authorized to investigate and arrest persons under

The Narcotic Drugs and Psychotropic Substances Act, 1985............................................2

B.

That the performances of various official acts are presumed to have been performed

in accordance with the law.................................................................................................2

C.

That the defence of investigative lapses cannot be availed........................................3

D.

Arguendo, that there were no procedural lapses in the prosecutions case................4

i.

That the Compliance with S.50 and S.57 of The Act is not required.....................4

ii.

That the approximate weight of the contraband does not vitiate prosecutions

case................................................................................................................................4

II

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

III.

THAT THE CONVICTION OF THE APPELLANTS IS JUSTIFIED AND IN ACCORDANCE

WITH THE LAW.......................................................................................................................5

A.

That the conviction of Dr. Charlie Shine is in consonance with the law....................5
i.

That the confession of Dr. Charlie Shine was made voluntarily and not under

oppression......................................................................................................................5
ii.

That the confession obtained under S.67 of The Act is admissible as evidence

and can be the sole basis of conviction..........................................................................6

iii.

That Dr. Charlie Shine is not entitled to the defence of Entrapment...................7

iv.

That Appellants right of free and fair trial has not been violated.........................9

v.

That the Hearsay Evidence of Mrs. Burkha Batt may be received in evidence.. .10

B.

That the conviction of Mr. H. Jimmy is in accordance with the law........................10

i.

That Mr. H. Jimmy is guilty under S.20 of The Act..............................................10

ii.

That Mr. H. Jimmy is guilty of Theft under S.379 of The Indian Penal Code,

1860..............................................................................................................................11
C.

That the conviction of Mr. Nicholas Cosca is in accordance with the law..............12
i.

That The Sessions Judge had rightly arraigned the Appellant, Mr. Nicholas

Cosca as accused under S. 319 of The Code...............................................................12

ii.
IV.
A.

That sufficient evidence was available to convict the Appellant.........................13

THAT THE DETENTION OF APPELLANT NO.1 IS LEGAL........................................14
That the Appellant is liable to undergo the term of imprisonment in two trials

consecutively....................................................................................................................14
B.

That the detention of the Appellant is legal and in accordance with the law...........14

PRAYER................................................................................................................................XV

III

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

INDEX OF AUTHORITIES
STATUTES
The Code of Criminal Procedure, 1973...............................................................................5, 14
The Indian Evidence Act, 1872..................................................................................................5
The Indian Penal Code.1860..............................................................................................11, 12
The Narcotic Drugs and Psychotropic Substances Act, 1985..............................................2, 11
INDIAN CASES
A Vasanth Kumar v. State of Karnataka, 2004 Cri. L.J. 1960 (1963) (Kant)...........................12
B.A. Deshpande and Ors. v. The Public Prosecutor, 1975 Cri. L.J. 1761.................................1
Bhardwaj Media Pvt. Ltd. v. State, 2008 146 DLT 108 (Del)....................................................9
Bhimashankar v. State of Karnataka, 2004 Cri. L.J. NOC 33 (Kant).....................................14
Ghansilal v. Smt Bhuridevi, AIR 1964 (Raj) 39.........................................................................3
Gunwantlal v. State of M.P, AIR 1972 SC 1756.......................................................................11
Harikishan Agrawal v. State of Maharshtra, 1970 Cri. L.J. 788...............................................1
K.N. Mehra v. State of Rajasthan ; AIR 1957 SC 369.............................................................12
Kanhaiyalal v. Union of India, AIR 2008 SC 1044...................................................................6
Krishna Kumar Narayan Prasad Jaiswal v. State of M.P. 2000 (3) MPLJ 447........................4
Madan Lal and Anr. v. State of Himachal Pradesh, AIR 2003 SC 3642.................................11
Man Mohan alias Bhuri v. State of Uttaranchal, 2003 Cri. L.J. 4506.......................................4
IV

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

Mohan Wahi v. State (Central Bureau of Investigation), New Delhi, 1982 Cri LJ 2040.........13
Poornaprajna House Building Co-operative Society,

Bangalore v. Bailamma @ Dodda

Bailamma and Others, ILR 1998 (Kar) 1441............................................................................3

Prabhudaya Harijan v. State of Orissa, 2001 (107) Cri. L.J. 2987...........................................4
Pushpadevi M. Jatia v. M.L. Wadhawan, AIR 1987 S.C. 1748.................................................8
Rajendra B Choundhari v. State of Maharashtra, 2007 Cri. L.J. 884 (887)...........................14
Rangiram v. State of Haryana, 2001 Cri. L.J. 4945...................................................................4
Ravinder Singh @ Bittu v. The State of Maharashtra, AIR 2000 SC 2241...............................6
Rupchand v. Mahabir Prasad, AIR 1956 Punj. 173..................................................................7
Sanjeet Pal v. Sate of Chattisgarh, 2007 Cri. L.J. 3840 (3842)...............................................14
State of Maharashtra and Anr. v. Najakat Alia Mubarak Ali, AIR 2001 SC 2255..................15
State of Punjab v. Baldev Singh, AIR 1999 SC 2378.................................................................4
State of Rajasthan v. Daulat Ram, AIR 2005 SC 3816.............................................................7
Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India
(UOI) and Ors., (1994) 6 SCC 731............................................................................................1
FOREIGN CASES
Alejandro Vega v. United States, 102 F.3d 1301........................................................................8
Ambard v. Attorney-General of Trinidad, AIR 1936 PC 141...................................................10
Archid Architecture and Interior Design v. Dundee City Council; 2013 WL 4411319.............3

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

Bowley v. Barnes , (1846) 8 Q.B 1037, 1878.............................................................................2

Campbell v. Wallsend Slipway and Engineering Co. Ltd, [1978] I.C.R. 1015..........................2
Canning v. Enever, (1961) 2 All EER 481.................................................................................3
Harris v. Knight, (1890) 15 PD 170...........................................................................................3
Jacobson v. United States, 503 U.S. 540...................................................................................8
Kurumav.Reginam, (1955) 1 All E.R. 236 at 239....................................................................8
Kynaston v. Director of Public Prosecutions, (1988) 87 Cr. App. R. 200.................................3
Nebraska Press Assn. v. Stuart, 427 U.S. 539............................................................................9
R v. B.(K.G.) ,[1993] 1 S.C.R. 740..........................................................................................10
R v. Barnes, [1991] 1 SCR 449..................................................................................................9
R v. Khelawon, 2006 SCC 57...................................................................................................10
R v. Loosely [2001] UKHL 53....................................................................................................8
R v. Mack, [1988] 2 SCR 903.....................................................................................................8
R v. Starr, [2000] 2 S.C.R. 144................................................................................................10
R. v. Geoffrey Emmerson, (1991) 92 Cr. App. R. 284................................................................5
R. v. Khan, [1990] 2 S.C.R. 531...............................................................................................10
R. v. Roberts , 14 Cox C.C. 101.................................................................................................2
R. v. Smith, [1992] 2 S.C.R. 915..............................................................................................10
Regina v. Inland Revenue Commissioners and Another;[1991] 2 W.L.R. 682..........................2
VI

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

Regina v. Mohammed Haness Shabir, [2012] EWCA Crim 2564...........................................10

Regina v. Richard Gould, (1840) 9 Carrington and Payne 364............................................6, 11
Rex v. Court (1836), 7 Carrington and Payne 486.....................................................................5
Ridgeway v. The Queen (1995) 184 CLR 19.........................................................................8, 9
TC Coombs & Co v. IRC, (1991) 3 All E.R. 623......................................................................2
The King v. Jane Warickshall (1783) 1 Leach 263..............................................................6, 10
United States v. Hunt, 171 F.3d 1192.........................................................................................9
United States v. Smith, 802 F.2d 1119, 1125 (9th Cir. 1986).....................................................9
United States v.Williams, 923 F2d 115.......................................................................................9
BOOKS
AMERICAN JURISPRUDENCE 553 (2nd ed., Vol. 29, Thomson Reuters 2011)..............................7
BLACKS LAW DICTIONARY, BRYAN. A. GARNER,1299 (9th ed. 2004).......................................9
BROOM'S LEGAL MAXIMS , 642 (10th ed. 1939).........................................................................2
JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW 1456 (Vol. IA, Wolters Kluver
(India) Pvt. Ltd. 2008)................................................................................................................7
PHIPSON ON EVIDENCE 141 (16th ed 2007).................................................................................2
RATANLAL & DHIRAJLAL, THE CODE

OF

CRIMINAL PROCEDURE, 1279 (19th Enlarged ed)

2010..........................................................................................................................................12
S.C SARKAR, THE CODE OF CRIMINAL PROCEDURE 2035 (10 TH ED 2012)..............................14

VII

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

OTHER AUTHORITIES
John W. Thornton, Expanding Video Tape Techniques in Pretrial and Trial Advocacy, 9
FORUM 105 1973- 1974...........................................................................................................8

VIII

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

STATEMENT OF JURISDICTION
The Appellants, Dr. Charlie Shine, Mr. H. Jimmy and Mr. Nicholas Cosca have preferred an
appeal before The Honble High Court of Judicature at Justice City, pursuant to Section 36-B
of The Narcotic Drugs and Psychotropic Substances Act, 1985, which reads as under:
36-B. Appeal and revision The High Court may exercise, so far as may be
applicable, all the powers conferred by Chapters XXIX and XXX of the Code of
Criminal Procedure, 1973(2 of 1974), on a High Court, as if a Special Court within
the local limits of the jurisdiction of the High Court were a Court of Session trying
cases within the local limits of the jurisdiction of the High Court.

IX

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

STATEMENT OF FACTS
On 01.01.2010 Dr. Shine lodges an FIR since his laptop, which contained valuable research,
was missing from his research laboratory. Subsequently, Mr. Bulbul Pandey is appointed as
the Investigating Officer. In furtherance of the Investigation, he takes Mr. H. Jimmy into
custody who gives the following statement: Yes I took it, I needed it. I needed it desperately.
If only you knew my position
I.
On recovering the laptop from Mr. H. Jimmys room, it is found that three packets of Hashish
(50 grams each) are hidden in place of the hard disk. On the chemical evaluation of the
sample (10 grams), it is confirmed that the said substance was Hashish. Thereafter, Mr.
Pandey along with Ms. Amy Vinehous, who is his personal friend and also the Secretary,
Ministry of Health and Family Welfare, lays a trap for Dr. Shine. During such time, Mr.
Pandey comes into the lab and takes Dr. Shine into custody. While being interrogated, Dr.
Shine confesses that he is a regular Hashish consumer and he maintains a Personal Diary in
which he records the details of his exploits. Meanwhile on 9.1.2010, the surveillance video
captured by Ms. Amy Vinehous gets leaked and goes viral on social media website.
II.
Ms. Kiera Mood appeared in a popular news channel anchored by Mrs. Burkha Batt. She
stated that Dr. Shine has been harassing her and forcing her to sell illegal contraband for a
long time, and she has video graphic evidence to substantiate the same. This video is also
shown on television, though she refused to pursue a case against Dr. Shine. On the same day,
i.e. 10.01.2010, Mr. H. Jimmy files a complaint against Dr. Shine, wherein he states as to how
he was forced to act as delivery boy under the threat of rustication. He also reported that he
used to maintain a word document on his computer with the details of all his transaction but
he had deleted it. The deleted files were retrieved by an accredited data retrieval agency. In

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

furtherance of the complaint, FIR number 2/2010 gets registered against Dr. Shine and he is
arrested. Dr. Shine, during interrogation gives a statement confessing to all the allegations. A
personal diary is recovered which reveals that Dr. Shine regularly sold the Hashish to Mr.
Nicholas Cosca. Next day, Mr. Cosca gives a statement under S. 161 of The Code of Criminal
Procedure, 1973. Pursuant to FIR 1/2010 a Sessions Trial 1/2010 is conducted before the Ld.
Sessions Judge Mr. John Savage, whereas a separate trial ST 2/2010 is conducted for the
extortion case against Dr. Shine as recorded in FIR 2/2010. Both, Dr. Shine and Mr. Jimmy
have been in custody since their arrest.
III.
During the Trial in ST 1/2010, Mr. Nicholas Cosca and Ms. Amy Vinehous stay true to their
statements given earlier. Mr. Bernard Marx turns hostile on examination, Mrs. Bhurkha Batt
seeks to prove the video of Ms. Kiera Mood and Mr. Pandey explains and proves the entire
sequence of events. Mr. H. Jimmy also examines himself as a witness. Ld. Judge Mr. Savage
exercises his powers under S. 319 of The Code of Criminal Procedure, 1973 and summons
Mr. Nicholas Cosca as an accused on various charges. On 1.1.2014, Dr. Shine, in ST 2/2013,
is convicted for the offence of extortion and sentenced for 3 years. Whereas on 2.1.2014 in
ST 1/2010, Dr. Shine is convicted for offences under S. 20 of The Narcotic Drugs and
Psychotropic Substances Act, 1985 and is sentenced for 3 years. Mr. Jimmy is convicted for
the charge of the possession of Hashish and is sentenced for 2 years while being acquitted for
the offence of theft. Mr. Cosca is convicted and sentenced for a period of 6 months for the
offence of S. 34 of The Indian Penal Code, 1860 read with S. 20 of The Narcotic Drugs and
Psychotropic Substances Act, 1985.
IV.
Hence, an appeal is preferred before this Honble Court by all three accused challenging the
impugned order of the lower court in ST 1/2010.

XI

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

STATEMENT OF ISSUES
I.
II.
III.
IV.

WHETHER THE COURT OF SESSIONS HAD THE JURISDICTION TO TRY THE INSTANT
MATTER?
WHETHER THERE WERE IRREGULARITIES AND ILLEGALITIES IN THE
INVESTIGATION?
WHETHER THE CONVICTIONS ARE UNREASONABLE AND LIABLE TO BE SET ASIDE?
WHETHER THE DETENTION OF APPELLANT NO.1 AND APPELLANT NO.2 IS
ILLEGAL?

XII

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

SUMMARY OF ARGUMENTS
I.

THAT

THE

COURT

OF

SESSIONS

HAD THE

JURISDICTION

TO TRY THE INSTANT

CASE.

The Respondent humbly submits that The Court of Sessions below had the jurisdiction to try
the instant case. The Court of Sessions would cease to have jurisdiction in the matters
pertaining to The Narcotic Drugs and Psychotropic Substances Act, 1985 only after the
constitution of the Special Courts under the Act in the real sense. There is no evidence
available in the instant case through which it can be deduced that Special Courts existed in
real sense in the country of Angland. Moreover, the territorial jurisdiction of the Special
Court already existing in the country of Angland cannot be determined.
Also, if any objection was to be raised, with regards to the jurisdiction of the court, it should
have been raised at an earlier stage. The same cannot be raised at such a later stage.
II.

THAT

THERE

WERE

NO

IRREGULARITIES

AND

ILLEGALITIES

IN

THE

INVESTIGATION.

The Respondent most respectfully contends that the Appellants cannot raise the defense of
procedural and investigative lapses. In the instant matter, the Investigating Officer was duly
authorized to investigate the case and all the necessary statutory compliances were made
during the course of investigation. The part of the investigation, for which all the relevant
facts are unavailable, can be presumed to have been performed, as a presumption of law
operates in this case. It lays down that there is a presumption of all the official acts being
regularly and properly performed.
III.

THAT THE CONVICTION OF THE APPELLANTS IS JUSTIFIED AND IS IN ACCORDANCE

WITH THE LAW.

XIII

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

The Respondent humbly submits that in light of the voluntary confession made by Dr. Charlie
Shine, the diary recovered from his house during search, statements of Mr. H. Jimmy, Mr.
Nicholas Cosca, Ms. Amy Vinehous and Mrs. Burkha Batt and the recovery of Hashish from
his allegedly stolen laptop, his conviction is justified under the law. Mr. H. Jimmy was also
rightly convicted by The Court of Sessions as Hashish was recovered from the laptop, which
was in his conscious possession; moreover, he is also guilty of theft under Section 379 of
The Indian Penal Code, 1860 for stealing the said laptop. The Trial court did not err in
implicating Mr. Nicholas Cosca as an accused in the light of the evidence received against
him, inter alia in the form of Mr. Jimmys testimony.
IV.

THAT THE DETENTION OF APPELLANT NO.1 IS LEGAL.

The Respondent humbly submits that the Appellant has remained in confinement as an under
trial prisoner during the course of inquiry, investigation and trial for a period of about four
years, whereas he has been awarded a sentence of six years in total after being convicted in
two separate trials. Keeping in view of the legislative intent behind Section 427 and Section
428 of The Code of Criminal Procedure, 1973, the Appellant must undergo a further
imprisonment for a period of two years.
Hence it is reverently submitted that the detention of the Appellant is legal and in accordance
with the law.

XIV

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

ARGUMENTS ADVANCED
A.

THAT

THE

COURT

OF SESSIONS HAD THE JURISDICTION TO TRY THE

INSTANT CASE.

It is humbly submitted that The Court of Sessions had the jurisdiction to try the present
case. It is stated that Special courts have been notified and are in existence in the country of
Angland.1 Though S.36 of The Narcotic Drugs and Psychotropic Substances Act, 1985
(hereinafter referred as The Act) provides for the constitution of Special Courts to try cases
related to The Act. However, in the present matter, the date of said notification and the place
of its existence are not provided and moreover, its territorial jurisdiction also cannot be
determined. S.36-D of The Act, which enshrines a Transitional Provision, confers powers on
a Court of Sessions to try cases relating to the said Act. The Apex Court of India in one of its
landmark decision laid down that S.36 of The Act has two stages with regard to the
Constitution of Special Courts2: i.

By issuance of a notification in the Official Gazette and

ii.

The appointment of the individual to function as a Judge of The Special Court.

After the completion of these above-mentioned steps only, it can be said that the special
courts are constituted in the real sense. It cannot be gathered that if Special Courts were
established in the real sense in the country of Angland. Therefore, it is humbly submitted that
as per S.36-D of The Act, The Court of Sessions would have appropriate jurisdiction to try
and adjudicate the case.
Arguendo, assuming that The Court of Sessions did not have the jurisdiction to try the
present case, an objection raised at such a later stage cannot vitiate the proceedings3. In the
1

Clarification No.23, Moot Problem.

Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India (UOI) and Ors.,

(1994) 6 SCC 731.

3

Harikishan Agrawal v. State of Maharshtra, 1970 Cri. L.J. 788.; B.A. Deshpande and Ors. v. The Public

Prosecutor, 1975 Cri. L.J. 1761.

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

present case no great hardship would be caused to the Appellants on account of noninterference by The High Court as the sole objective of the Legislature behind constituting
Special Court was speedy trial4.
B.

THAT

THERE

WERE

NO

IRREGULARITIES

AND

ILLEGALITIES

IN

THE

INVESTIGATION.

i. That Mr. Bulbul Pandey was duly authorized to

investigate and arrest persons under The Narcotic
Drugs and Psychotropic Substances Act, 1985
It is a developed and well-established universal principle of common law jurisprudence
that there is a presumption of law that there has been a due performance of public and official
acts.5 On the proof that a public or official act has been performed, it is presumed that the act
has been regularly and properly performed. Persons acting in public capacities are presumed
to have been regularly and properly appointed.6 The maxim omnia praesumuntur rite esse
acta donec probetur in contrarium7 is applicable in the instant case. The legal maxim has
also been applied to the appointments of the inspector and the executive. The presumption of
regularity could not be weakened by a mere challenge; only rebutting evidence could displace
it.8 It is submitted that Mr. Pandey was duly authorized to conduct the investigation.

Section 36(1), The Narcotic Drugs and Psychotropic Substances Act, 1985.

PHIPSON ON EVIDENCE 141 (16th ed 2007).

Bowley v. Barnes , (1846) 8 Q.B 1037, 1878; R. v. Roberts , 14 Cox C.C. 101; TC Coombs & Co v. IRC,

(1991) 3 All E.R. 623.

7

BROOM'S LEGAL MAXIMS , 642 (10th ed. 1939).

Campbell v. Wallsend Slipway and Engineering Co. Ltd, [1978] I.C.R. 1015.

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

ii. That the performances of various official acts are

presumed to have been performed in accordance
with the law.
The above legal maxim is also applied, where acts are of an official nature, or require the
concurrence of official persons, a presumption arises in favour of their due execution. 9 The
presumption, which arises of public officers acting in accordance with the law, unless and
until the contrary is proved, is even in a case of murder, that a man who has acted in a public
capacity or situation was duly appointed, and has properly discharged his official duties. 10 It
is a humble submission of the Respondent that there is no evidence on record to show that the
investigation was not carried out as per the statutory requirements. Therefore, it is
respectfully put forth that in the absence of such evidence it may be presumed by this
Honble Court that all the official acts/ investigation were carried out strictly in accordance to
the legislative mandate. All provisions related to search, seizure and arrest have been
stringently complied with. Thus in view of the above arguments, the contention of the
Appellants that there were lapses in the investigation process has no merits.
iii. That the defence of investigative lapses cannot
be availed.
The reliance upon the presumption of regularity is relevant here. It is usually expressed as
all things, are presumed to have been done duly and in the usual manner and it is made
clear that it applies to generally, all official acts. 11 The maxim only comes into operation
where there is no proof one way or the other; but where it is more probable that what was
intended to be done was done as it ought to have been done to render it valid. 12. The High
9

Regina v. Inland Revenue Commissioners and Another;[1991] 2 W.L.R. 682.

10

Kynaston v. Director of Public Prosecutions, (1988) 87 Cr. App. R. 200.

11

Archid Architecture and Interior Design v. Dundee City Council; 2013 WL 4411319.

12

Canning v. Enever, (1961) 2 All EER 481; Harris v. Knight, (1890) 15 PD 170.

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

Courts in India have also relied on principle underlying the aforementioned maxim to arrive
to a decision.13As it can be presumed that all the official acts have been done rightly, the
Appellants cannot raise the defence of investigative lapses. Hence, it can be concluded that
the Trial Court correctly rejected the arguments of various investigative lapses.
iv. Arguendo, that there were no procedural lapses
in the prosecutions case.
1. That the Compliance with S.50 and S.57 of The Act is not
required.
S.50 of The Act does not require a notice to be given to the accused or the suspect if the
search of certain premises or house is required to be taken. 14 A bare reading of S.50 of The
Act shows that it only applies in case of personal search of a person. It does not extend to
search of a vehicle or a container or a bag, or premises. 15 Moreover, the provision of S.57 of
The Act is not mandatory and under similar facts and circumstances the submission on behalf
of the Appellant-accused was found untenable by The Hon'ble of Supreme Court, in the case
of Rangiram v. State of Haryana.16
2.

That the approximate weight of the contraband does not

vitiate prosecutions case.

The weight of the contraband recovered from the Appellant was mentioned by
approximation in the memo of recovery and arrest without actually weighing and if the
weight of the same was found less, it would not affect the credibility of the prosecution

13

Ghansilal v. Smt Bhuridevi, AIR 1964 (Raj) 39; Poornaprajna House Building Co-operative Society,

Bangalore v. Bailamma @ Dodda Bailamma and Others, ILR 1998 (Kar) 1441.
14

Krishna Kumar Narayan Prasad Jaiswal v. State of M.P. 2000 (3) MPLJ 447.

15

State of Punjab v. Baldev Singh, AIR 1999 SC 2378.

16

Rangiram v. State of Haryana, 2001 Cri. L.J. 4945.

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

version and reliability of the evidence produced in the case. On this score also, the case of the
prosecution cannot be viewed with suspicion.17
o That the non-attestation of seizure memo by
independent witnesses cannot be a ground to
disbelieve recovery of articles seized consequent upon
statement of the accused.
In the case of Prabhudaya Harijan v. State of Orissa18 the above proposition was laid down
and it was further held by The Lordships that there is no requirement either under The Indian
Evidence Act, 187219 or under the provisions of The Code of Criminal Procedure, 1973 20
(Hereinafter referred as The Code) to obtain signature of independent witnesses.
C.

THAT

THE

CONVICTION

OF

THE

APPELLANTS

IS

JUSTIFIED

AND

IN

ACCORDANCE WITH THE LAW.

A. That the conviction of Dr. Charlie Shine is in consonance

with the law.
i. That the confession of Dr. Charlie Shine was made voluntarily and not under
oppression.
In common law jurisdictions it is evident that a confessional statement made to a police
officer is admissible if it is proved to be voluntary and not under oppression. In R. v. Geoffrey
Emmerson21, a police officer became impatient while questioning a suspect and for a short
period raised his voice and thereafter used bad language. The Trial Judge, who heard a
17

Man Mohan alias Bhuri v. State of Uttaranchal, 2003 Cri. L.J. 4506.

18

Prabhudaya Harijan v. State of Orissa, 2001 (107) Cri. L.J. 2987.

19

Section 27, The Indian Evidence Act, 1872.

20

Section 161, The Code of Criminal Procedure, 1973.

21

R. v. Geoffrey Emmerson, (1991) 92 Cr. App. R. 284.

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

tape recording of the interview, agreed that the police officer had been rude and discourteous,
but did not regard his behavior as oppressive. The Court of Appeal affirmed the decision
declaring that excluding the evidence would have given the word oppression a completely
false meaning. In Rex v. Court22, a person in authority told the accused to tell the truth,
and he made a confession, which was later on challenged on the grounds of being induced by
a person in authority. It was held that the court ought to receive the evidence. In the instant
case, Mr. Bulbul Pandey though raised his voice and asked the accused to tell the truth, he in
no manner whatsoever prompted any threat to the accused. It is submitted that in light of the
above cited cases, it can reasonably be inferred that a police officer may raise his voice and
ask the suspect questions pertaining to the case, but that does not amount to oppression and
the confession so obtained is still voluntary in nature and it may be taken received as in
evidence.
Arguendo, that even if confession is inadmissible, diary recovered in furtherance of
confession obtained, is admissible. It was held in The King v. Jane Warickshall23 that
confessions obtained in consequence of promises or threats cannot be given in evidence; but
any facts, though resulting from such inadmissible confession, may be received. The same
principle was affirmed in Regina v. Richard Gould24. In the instant case, assuming even if the
confession obtained by Mr. Pandey is not voluntary in nature and cannot be relied upon, the
diary recovered from his house in furtherance of the confession shall be received.

22

Rex v. Court (1836), 7 Carrington and Payne 486.

23

The King v. Jane Warickshall (1783) 1 Leach 263.

24

Regina v. Richard Gould, (1840) 9 Carrington and Payne 364.

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

2. That the confession obtained under S.67 of The Act is

admissible as evidence and can be the sole basis of
conviction.
A confessional statement is a substantial piece of evidence and does not require
corroboration if the court is satisfied that the same is voluntary and truthful. The confessional
statement of the accused can be relied upon to base the conviction of the accused and no
further corroboration is necessary if it relates to the accused. 25 It was also held, that an officer
vested with the powers of an Officer-in-Charge of a Police Station under S.53 of The Act is
not a 'Police Officer' within the meaning of S. 25 of Indian Evidence Act, 1872. Moreover, It
is clear that a statement made under S.67 of The Act is not the same as a statement made
under S.161 of The Code unless made under threat or coercion. Thus, statement made under
S.67 of The Act can be used as a confession against the person making it and excludes it from
the operation of S.24 to S.27 of The Indian Evidence Act, 1872.
In the light of various Supreme Court cases cited above clearly point out to the fact that
officers investigating offenses pertaining to The Act are not Police Officer within the
meaning of S.25 of The Indian Evidence Act, 1872 and moreover, it needs to be pointed out
that because The Indian Evidence Act, 1872 is not adopted in the country, therefore this bar
also does not exist.
Assuming this bar exists in Angland, the confession regarding him being a regular hashish
consumer and the discovery of diary, will be admissible as the confession was made under
custody and not under arrest. In State of Rajasthan v. Daulat Ram26 The judges did not hold
that the Respondent was under arrest merely because he was questioned by the police on
suspicion. Therefore, any statement made by a suspect under S.67 of The Act is not effected
25

Ravinder Singh @ Bittu v. The State of Maharashtra, AIR 2000 SC 2241 ; Kanhaiyalal v. Union of India, AIR

2008 SC 1044.
26

State of Rajasthan v. Daulat Ram, AIR 2005 SC 3816.

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

by S. 25 of The Indian Evidence Act, 1872. Confessional statements made under S.67 of The
Act can also serve as the basis of conviction.
3. That Dr. Charlie Shine is not entitled to the defence of
Entrapment.
o That the Video Tape is a relevant piece of evidence.
Videotapes are a reliable evidentiary resource if they are relevant and provide fair
representation27.Evidenceofprioractsmaybeadmittedifitisrelevanttoamaterialissue 28
which can be proved bya preponderance ofthe evidence. 29 Video tape is admissible as
evidence,ifitiscorroboratedbyindependentcircumstantialevidence.30
o That the Sting Operation is valid and the evidence so
obtained is admissible.
Itispropertouseastingoperationatleastwhereitamountstoprovidingadefendant
withan"opportunity"tocommitacrime.Thiswillnotamounttoentrapment. 31Withoutthis
kindoflawenforcementweapon,itwouldoftenprovedifficult,orimpossible,tostopcertain
seriously criminal activity, particularly activity involving drugs, in which no direct
participantwantsthecrimedetected.32TheApexCourtofIndiarecentlyaffirmedthevalidity
ofstingoperationsifitiscarriedoutinpublicinterest 33orwithoutanyulteriorpurpose.Itis
27

AMERICAN JURISPRUDENCE 553 (2nd ed., Vol. 29, Thomson Reuters 2011).

28

JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW 1456 (Vol. IA, Wolters Kluver (India) Pvt. Ltd.

2008).
29

Supra note 27.

30

Rupchand v. Mahabir Prasad, AIR 1956 Punj. 173.

31

Jacobson v. United States, 503 U.S. 540.

32

Alejandro Vega v. United States, 102 F.3d 1301.

33

John W. Thornton, Expanding Video Tape Techniques in Pretrial and Trial Advocacy, 9 FORUM 105 1973-

1974.

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

humblysubmittedthatthejudgmentin Kuruma v.Reginam34, wentalongwayingiving

sanctiontosuchstingoperationsandtherebymakingtheevidencescollectedthroughthem,
admissibleinthecourtoflaw.Evenifatall,thestingoperationconductedwasinvalid,then
alsotheevidenceisadmissible.35
o That the defence of entrapment cannot be availed.
ItisrespectfullysubmittedthattheHouseofLordsin R v. Loosely,36 stressedthata
multiplicityoffactorsneedtobetakenintoaccountwhiledecidingwhethertheaccusedhad
been entrapped or not. McHugh J in Ridgeway37 observed that, to avoid the label of
entrapment,themannerinwhichanoffencewasinducedwouldhavetobeconsistentwith
theordinarytemptationsandstratagemsthatarelikelytobeencounteredinthecourseof
criminalactivity.

Secondly,theselectionofatargetforinvestigationshouldbeproper. 38 LamerCJsaidthat
it is entrapment to provide an opportunity to persons to commit an offence without
reasonablesuspicionoractingmalafides39 andthirdly,theimproprietyshouldnotinvolve
disproportionateunlawfulnessbetweenanoffencecommittedinordertoobtainevidenceand

theoffenceforwhichevidenceissought.40 Therefore,intheinstantmatter,theremayhave
been a conversation about smoking the prohibited substance but thereafter the accused
himselfbreaksthenewsofhisstashgettinglostintherecentpast.
Arguendo, the Appellant was predisposed to commit the crime. Predispositionexistsif
theaccusedexhibitsastateofmindthatreadilyrespondstotheopportunityfurnishedbylaw
34

Kurumav.Reginam, (1955) 1 All E.R. 236 at 239.

35

Pushpadevi M. Jatia v. M.L. Wadhawan, AIR 1987 S.C. 1748.

36

R v. Loosely [2001] UKHL 53.

37

Ridgeway v. The Queen (1995) 184 CLR 19.

38

R v. Mack, [1988] 2 SCR 903.

39

R v. Barnes, [1991] 1 SCR 449.

40

Supra note 37.

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

enforcementofficialsortheiragentstocommitthecrime. 41 Thedecisiontocommitthecrime
isaproductofthepreferenceoftheaccusedandnotthegovernmentalpersuasion. 42 The
Appellantdidnotexpressreluctancetocommitthecrime 43 andtherewasnoindicationof
hesitationfromthesideoftheAppellant.Thus,thedefenceofentrapmentcantbepleaded.
4. That Appellants right of free and fair trial has not been
violated
The media here is only doing the work of informing the citizens. The existence of pretrial adverse and pervasive publicity does not inevitably lead to an unfair trial. 44 In a very
recent Indian case, where the media had broadcasted the video clips of a sting operation, it
was held not to cause prejudice.45 Blacks Law Dictionary defines prejudice as a
preconceived judgment formed without a factual basis.46 In the instant matter, the
publications were certainly not prejudicial as the media reports were based on the
conversations in the video clip. It is respectfully submitted that there has been no denial of
fair trial to the accused by the media as the media was only exercising its well deserved
freedom. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and
respectful even though outspoken comments of ordinary men.47
5. That the Hearsay Evidence of Mrs. Burkha Batt may be
received in evidence.
The "default" position is that hearsay evidence is not admissible. However, when it is
41

United States v. Hunt, 171 F.3d 1192.

42

United States v.Williams, 923 F2d 115.

43

United States v. Smith, 802 F.2d 1119, 1125 (9th Cir. 1986).

44

Nebraska Press Assn. v. Stuart, 427 U.S. 539.

45

Bhardwaj Media Pvt. Ltd. v. State, 2008 146 DLT 108 (Del).

46

BLACKS LAW DICTIONARY, BRYAN. A. GARNER,1299 (9th ed. 2004).

47

Ambard v. Attorney-General of Trinidad, AIR 1936 PC 141.

10

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

sought to admit the hearsay statement because it is said that the witness will not give oral
evidence at the trial through fear, the same shall be admitted, if certain conditions are
fulfilled.48. The Supreme Court of Canada has developed the principled approach to
hearsay, where hearsay statements can be admitted if they are sufficiently reliable and
necessary49. Subsequently the same principal was followed in a catena of decisions. 50 It is
humbly submitted that the statement51 of Mrs. Burkha Batt may be received as evidence as
the same is in the interest of justice as the same was reliable and necessary.
ii. That

the

conviction

of

Mr.

H.

Jimmy

is

in

accordance with the law.

i. That Mr. H. Jimmy is guilty under S.20 of The Act.
o That the laptop was recovered from Mr. H. Jimmys
possession.
It was held in The King v. Jane Warickshall52 that confessions obtained in consequence of
promises or threats cannot be given in evidence; but any facts, though resulting from such
inadmissible confession, may be received. The same principle was affirmed in Regina v.
Richard Gould53. In the instant case, assuming even if the confession obtained by Mr. Pandey
is not voluntary in nature and cannot be relied upon, the laptop recovered from his house in
furtherance of the confession may be received.

48

Regina v. Mohammed Haness Shabir, [2012] EWCA Crim 2564.

49

R. v. Khan, [1990] 2 S.C.R. 531.

50

R. v. Smith, [1992] 2 S.C.R. 915 ; R v. B.(K.G.) ,[1993] 1 S.C.R. 740;R v. Starr, [2000] 2 S.C.R. 144 ; R v.

Khelawon, 2006 SCC 57.

51

Moot Problem, Page 5.

52

Supra note 23.

53

Supra note 24..

11

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

o That the burden is upon Mr. Jimmy to prove that there

was no conscious possession.
Once possession is established, the person who claims, that it was not a conscious
possession has to then establish it, because how he came to be in possession is within his
special knowledge. S.35 of The Act gives a statutory recognition of the above stated position
because of presumption available in law 54. Similar is the position in terms of S.54 of The Act,
where also presumption is available to be drawn from possession of illicit articles. 55 The
definition of the word possession as noted in Gunwantlal v. The State of M.P.56 was used in
deducing the scope of possession under The Act. In the instant case, laptop was recovered
from Mr. H. Jimmys house in furtherance of the statement made by him, which establishes
his knowledge about the laptop being in his possession and that he had exclusive control over
it. Also that, after establishing possession, the burden of proof is upon him to prove that there
is no conscious possession on his part.
2. That Mr. H. Jimmy is guilty of Theft under S.379 of The
Indian Penal Code, 1860.
The definition of Theft57 requires that the moving of the property is to be in order to such
taking, "such" meaning "intending to take dishonestly", (i.e., the very moving out of a
property must be with a dishonest intention). The term dishonestly 58 is defined as wrongful
gain to one person or wrongful loss to another person. "'Wrongful gain/loss is gain/loss by
unlawful means of property to which the person gaining/losing is not-legally/ legally
entitled.59 A person is said to gain wrongfully when such person retains wrongfully, as well
54

Section 35, The Narcotics Drugs and Psychotropic Substances Act, 1985.

55

Madan Lal and Anr. v. State of Himachal Pradesh, AIR 2003 SC 3642.

56

Gunwantlal v. State of M.P, AIR 1972 SC 1756.

57

Section 378, The Indian Penal Code.1860.

58

Section 24, The Indian Penal Code.1860.

59

Section 23, The Indian Penal Code.1860.

12

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

when such person acquires wrongfully. A person is said to lose wrongfully when such
person is wrongfully kept out of any property, as well as such person is wrongfully deprived
of property."60 Now in the instant case, Dr. Charlie Shine was deprived of the laptop and that
the laptop was taken out of his custody by Mr. Jimmy. This wrongful loss to Dr. Charlie
Shine establishes the dishonest intention on part of Jimmy and therefore he must be convicted
under S. 379 of The Indian Penal Code, 1860.
iii. That the conviction of Mr. Nicholas Cosca is in
accordance with the law.
i. That The Sessions Judge had rightly arraigned the Appellant, Mr. Nicholas Cosca
as accused under S. 319 of The Code.
S. 319 of The Code empowers The Court to proceed against any person not shown or
mentioned as accused, if it appears from evidence that such person has committed an offence
for which he could be tried together with the main accused. 61 In the present instance after the
examination-in-chief of Mr. Jimmy, the Ld. Judge Mr. Savage exercised his power suo moto
under S.319 of The Code and summoned Mr. Nicholas Cosca as an accused. 62 The power
under this section can be exercised at any stage. 63Mr. Jimmy in his examination-in-chief
stated that he used to regularly drop off Narcotic Substances in commercial quantities to Mr.
Nicholas Cosca, which can even be corroborated by the print outs 64 of the retrieved data
recovered from Mr. H. Jimmys personal computer. It has been held that an uncorroborated
testimony of an accused is sufficient enough to implead a person as an accused. 65 Moreover
60

K.N. Mehra v. State of Rajasthan ; AIR 1957 SC 369.

61

RATANLAL & DHIRAJLAL, THE CODE OF CRIMINAL PROCEDURE, 1279 (19th Enlarged ed) 2010.

62

Moot Problem, Page 6.

63

A Vasanth Kumar v. State of Karnataka, 2004 Cri. L.J. 1960 (1963) (Kant).

64

Annexure A, Moot Problem.

65

Mohan Wahi v. State (Central Bureau of Investigation), New Delhi, 1982 Cri LJ 2040.

13

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

the self-incriminatory statements made by Mr. Nicholas Cosca under S.161 of The Code 66 as
well as the one made before the court67 cannot be disregarded. Therefore, it is submitted that
the Sessions Judge, Mr. Savage rightfully exercised its discretionary jurisdiction under S.319
of The Code as there was prima facie evidence available to display the involvement of the
Appellant.
2. That sufficient evidence was available to convict the
Appellant.
It is humbly submitted that there were cogent evidence available, which formed a chain
pointing towards the guilt of the Appellant. Mr. Nicholas Cosca in his statement under S.161
of The Code stated that, he, from time to time purchased small quantities of Hashish from Dr.
Charlie Shine. Furthermore he made the same statement during his deposition before the
Court. The dairy recovered68 during investigation from Dr. Charlie Shines house also point
towards the same fact. In addition, Mr. H. Jimmy also states in his examination-in-chief that
he used to regularly drop off Narcotic Substances to Mr. Nicholas Cosca on the demand of
Dr. Shine. This statement could be corroborated by the retrieved data 69 recovered from Mr.
Jimmys computer. Therefore, the conviction of Mr. Nicholas Cosca for dealing in Drugs and
Narcotic Substances was in accordance with law as there was sufficient evidence available.

66

Moot Problem, Page 5.

67

Id.

68

Annexure B, Moot Problem.

69

Annexure A, Moot Problem.

14

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

D.

THAT
A. That

THE

DETENTION

the

OF

Appellant

APPELLANT NO.1
is

liable

to

IS LEGAL.

undergo

the

term

of

imprisonment in two trials consecutively.

S.427 of The Code lays down that when a person is already undergoing sentence of
imprisonment is sentenced on a subsequent conviction to another imprisonment; such
imprisonment shall commence at the expiration to which he has been previously sentenced. 70
The lone exception to this rule is unless The Court directs the subsequent sentence shall run
concurrently with such previous sentence.71 In the present matter, on 1.1.2014 the Appellant
was convicted for the offence of extortion and sentenced for three years in ST 2/2010. 72
Successively on 2.1.2014 he was again convicted under The Act and sentenced for three years
in ST 1/2010.73 As The Court of Sessions did not direct in its judgment that the two sentences
shall run concurrently, presumption is raised that the court intended that the two sentences
shall run consecutively.74 It is not obligatory for the Trial Court to direct in all cases that the
subsequent sentences shall run concurrently with the previous sentence.75
ii. That the detention of the Appellant is legal and in
accordance with the law.
It is humbly submitted that the question of the legality of Appellants incarceration does
not arise as the law is quite settled in this matter. The Appellant being convicted and
sentenced for six years in total for two distinct offences in two separate trials, cannot claim
the benefit of set off in both the cases simultaneously. He shall be entitled to a set off for a
70

S.C SARKAR, THE CODE OF CRIMINAL PROCEDURE 2035 (10TH ED 2012).

71

Section 427, The Code of Criminal Procedure, 1973.

72

Moot Problem, Page 6.

73

Id.

74

Bhimashankar v. State of Karnataka, 2004 Cri. L.J. NOC 33 (Kant) ; Sanjeet Pal v. Sate of Chattisgarh, 2007

Cri. L.J. 3840 (3842).

75

Rajendra B Choundhari v. State of Maharashtra, 2007 Cri. L.J. 884 (887).

15

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

period of only four years as an under-trial prisoner. The ideology enshrined in S.428 of The
Code was introduced for the first time only in 1973. For understanding the contours of the
legislative measure involved in that section, it is imperative to have a look at the Objects and
Reasons for bringing the above legislative provision as stated herein below:
The Committee has noted the distressing fact that in many cases accused person is kept in
prison for very long period as under-trial prisoners and in some cases the sentence of
imprisonment ultimately awarded is a fraction of the period spent in jail as under-trial
prisoner. Indeed, there may even be cases where such a person is acquitted. No doubt,
sometimes courts do take into account the period of detention undergone as under-trial
prisoner when passing sentence and occasionally the sentence of imprisonment is restricted
to the period already undergone. The Committee has also noted that a larger number of
persons in the overcrowded jails of today are under-trial prisoners. The new clause seeks to
remedy this unsatisfactory state of affairs.76
Looking at the very legislative intent behind introducing the said provision it would
not be apposite to release the Appellant on the plea of incarceration. The Appellant was tried
and convicted separately for two offences. It is submitted the total period to be undergone, as
a prisoner was fixed as six years and therefore only a period of four years can be set off.

76

State of Maharashtra and Anr. v. Najakat Alia Mubarak Ali, AIR 2001 SC 2255.

16

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

PRAYER
Wherefore, in the light of facts stated, issues raised, arguments advanced and
authorities cited, it is most humbly and respectfully prayed before this Honorable Court that it
may be pleased to:

Dismiss the appeal and uphold the judgment of The Court of Sessions.

And pass any other order or grant any other relief in favor of the Respondent, which this
Honorable Court may deem fit in the ends of equity, justice and good conscience.
All of which is most humbly and respectfully submitted.

Date: 25th January, 2014

Place: Justice City, Angland
Sd/COUNSELS FOR RESPONDENT

XV