Team Code Ck9 (Respondent)

TEAM CODE: CK9

ARMY INSTITUTE OF LAW NATIONAL MOOT COURT COMPETITION 2016

BEFORE THE HON’BLE SUPREME COURT OF BAMBIA

(UNDER ARTICLE 136 OF THE CONSTITUTION OF BAMBIA)

RAMPON.....................................................................................APPELLANT V.

PROVINCE................................................................................RESPONDENT

MEMORANDUM ON BEHALF OF THE RESPONDENT

-Table of Contents-Respondent-

TABLE OF CONTENTS

TABLE OF CONTENTS_______________________________________________________I INDEX OF ABBREVIATIONS_________________________________________________II INDEX OF AUTHORITIES___________________________________________________IV STATEMENT OF JURISDICTION______________________________________________X STATEMENT OF FACTS____________________________________________________XI QUESTIONS OF LAW_____________________________________________________XIV SUMMARY OF ARGUMENTS_______________________________________________XV ARGUMENTS ADVANCED___________________________________________________1 1 THE PENAL ACTION IMPLICATED UPON THE ACCUSED IS VALID AND JUSTIFIABLE.______________________________________________________________1 1.1The Appellant Has Conspired Against The State In Series Of Crime__________________1 1.2Circumstantial Evidence to Corroborate the Guilt of Accused_______________________5 1.3Acts of appellant constitute Waging War against the Government of Bambia___________7 2 THE CHARGES PRESSED AGAINST APPELLANT UNDER UAPA, 1967 AND PMLA, 2002 ARE JUSTIFIED_________________________________________________10 2.1Unlawful Activity Prevention Act, 1967_______________________________________10 2.2Prevention of Money Laundering Act, 2002____________________________________14 3

THE DUE PROCESS OF LAW HAS BEEN COMPLIED WITH________________17

3.1Act of Government not violative of Article 14,19,21 of Constitution of Bambia,1950__ 17 PRAYER________________________________________________________________XXI

-MEMORANDUM for THE RESPONDENT1

-Index of Abbreviations-Respondent-

INDEX OF ABBREVIATIONS

1. § 2. ¶ 3. & 4. Ads 5. AIR 6. Annex. 7. Anr. 8. Art. 9. BPC 10. Cl. 11. Cr. 12. CrLJ 13. CrPC 14. CS 15. SDF 16. DW 17. FIR 18. Govt. 19. HC 20. Hon'ble 21. i.e. 22. IPC 23. MANU 24. No. 25. Ors. 26. P. 27. PS 28. PW 29. r/w 30. SC 31. SCC 32. SCR 33. Supp. 34. TADA 35. UAPA 36. POTA 37. PMLA 38. Pat 39. MLJ

T MEANING SECTION PARAGRAPH AND ADVERTISEMENTS ALL INDIA REPORTER ANNEXURE ANOTHER ARTICLE BAMBIA PENAL CODE CLAUSE CRIMINAL CRIMINAL LAW JOURNAL CODE OF CRIMINAL PROCEDURE, 1973 CHARGE-SHEET SOIL DEFENCE FORCE DEFENCE WITNESS FIRST INFORMATION REPORT GOVERNMENT HIGH COURT HONORABLE THAT IS INDIAN PENAL CODE, 1860 MANUPATRA NUMBER OTHERS PAGE POLICE STATION PROSECUTION WITNESS READ WITH SUPREME COURT SUPREME COURT CASES SUPREME COURT REPORTER SUPPLEMENTARY TERRORIST & DISRUPTIVE ACTIVITIES (PREVENTION) ACT UNLAWFUL ACTIVITIES PREVENTION ACT PREVENTION OF TERRORIST ACT PREVENTION OF MONEY LAUNDERING ACT PATIALA MAHARASTHTRA LAW JOURNAL

40. Bom

BOMBAY -MEMORANDUM for THE RESPONDENT2

-Index of Abbreviations-Respondent41. LR

LAW REPORTER

42. Tra-Co

TRAVANCORE

43. Eds.

EDITION

44. QB

QUEENS BENCH

45. ER

ENGLAND REPORTER

46. @

ALIAS

47. ACR

ASSAM CRIMINAL REPORTER

48. U/S

UNDER SECTION

49. UOI

UNION OF INDIA

50. V./Vs

VERSUS

51. Viz.

NAMELY

52. w.r.t

WITH RESPECT TO


-Index of Authorities-Respondent-

INDEX OF AUTHORITIES

STATUTES 1. 2. 3. 4. 5. 6. 7. 8.

CODE OF CRIMINAL PROCEDURE, 1973 CONSTITUTION OF INDIA, 1950 INDIAN PENAL CODE, 1860 INDIAN EVIDENCE ACT, 1872 PREVENTION OF MONEY LAUNDERING ACT,2002 TERRORIST AND DISRUPTIVE ACTIVITIES (PREVENTION) ACT, 1985 THE ARMS ACT,1959 UNLAWFUL ACTIVITIES PREVENTION ACT,1967 BOOKS

1. D.D.BASU, Constitution of India, Lexis Nexis Butterworths, Wadhwa, Nagpur. 2. D.D.BASU, Criminal Procedure Code, 1973, Lexis Nexis Butterworths Wadhwa, 4th Edn, 2010. 3. GAUR K. D, The Indian Penal Code, Universal Law Publishing Co. Pvt. Ltd.,

4th

Ed.,

2013. 4. H.M. SEERVAI, Constitutional Law of India: A Critical Commentary . [Delhi. Universal Law Publishing Co. Ltd]. 5. HALSBURY’S LAWS OF ENGLAND, (VOLUME 11, PP. 44 AND 58., 4TH EDITION). 6. HARI SINGH GOUR, The Penal Law Of India, 4869, (11th Edition, Delhi Law House, New Delhi, 2006). 7. J. W. CECIL TURNER KENNY’S, Outlines of Criminal Law, Cambridge University Press, 1952.


-Index of Authorities-Respondent8. KELKAR R. V., Criminal Procedure Code ,Pillai Eastern Book Company, 4th Ed. 2007 (Revised by Dr. K. N Chandrasekharan). 9. M P JAIN, Indian Constitutional Law, 1180, LexisNexis Butterworths Wadhwa, Nagpur, 2010. 10. PETER MURPHY, Evidence, Oxford University Press, 11 th Edition. 11. RATANLAL & DHIRAJLAL,The Code of Criminal Procedure, Lexis Nexis Butterworths,Wadhwa,Nagpur, 20th Ed. 2011(YChandrachud J. &VRManohar J.). 12. RATANLAL & DHIRAJLAL,The Indian Penal Code, Lexis Nexis Butterworths, Wadhwa, Nagpur, 30th Ed. 2008(Y VChandrachud J. &V R Manohar J.). 13. RATANLAL & DHIRAJLAL,The Law of Evidence, Lexis Nexis Butterworths Wadhwa & Company Nagpur, 24th Ed. 2012 (Y V Chandrachud J. & V R Manohar J.). 14. SARKAR on The Code of Criminal Procedure, 10th Edn, 2012, Lexis Nexis Butterworths, Wadhwa, Nagpur. 15. SIR JOHN WOODROFFE & SYED AMIR ALI, Law of Evidence, LexisNexis Butterworth’s, 19th Ed. Vol. II. 16. SMITH AND HOGAN, Smith and Hogan's Criminal Law, Karl Laird & David Ormerod eds., Oxford University Press, 2015. 17. VIBHUTE K. I ,P S A Pillai’s Criminal Law,.,LexisNexis Butterworth’s, 11th Ed., 2012. 18. WILLIS, “Constitutional Law”, 579, (The Principia Press, United States, 1936). ARTICLES 1. 305th Report of the Law Commission of United Kingdom, Assisting and Encouraging Crime/ Participating in Crime, Para 2.49, 2007. 2. ANIL KALHAN, GERALD P. CONROY, MAMTA KAUSHAL, SAM SCOTT MILLER, AND JED S. RAKOFF “Colonial Continuities: Human Rights, Terrorism, And Security Laws In India” Colum. J. Asian L. 93 2006-2007. -MEMORANDUM for THE RESPONDENT5

-Index of Authorities-Respondent3. RAMANAND GARGE,Combating Financing of Terror: An Indian Perspective , Vivekananda International Foundation. 4. FATF (2015), Emerging Terrorist Financing Risks, FATF, Paris

www.fatf-

gafi.org/publications/methodsandtrends/documents/emerging-terrorist-financingrisks.html. 5. J. Venkatesan, “Binayak Sen gets bail in Supreme Court,” The Hindu, April 15, 2011, 6. 7. 8. 9.

http://www.thehindu.com/news/national/article1698939.ece?homepage=true. MINORITIES IN INDIA, 11 Socio-Legal Rev. 103 2015. ROBERT E RIGGS, “Substantive Due Process Of Law” , 1990 Wis. L . Rev. 941 ROLLIN M. PERKINS, PARTIES TO CRIME, 89 U. Pa. L. Rev. 581 1940-1941. SANTOSH EJANTHKAR, The Growing Threat of Money Laundering, Capgemin

2011. 10. Sedition Laws & The Death Of Free Speech In India , Centre for the Study of Social Exclusion and Inclusive Policy, National Law School of India University, Bangalore & Alternative Law Forum, Bangalore, February, 2011. 11. SHYLASHRI SHANKAR, “Judicial Restraint In An Era Of Terrorism” 11 SocioLegal Rev. 103 2015. 12. SRIJONI SEN ET. AL, “Anti-Terrorism Law in India- A Study of Statutes and Judgements, 2001-2014”, Vidhi – Centre for Legal Policy, June 2015. 13. VIVEK CHADDHA, “Life Blood of Terrorism”, Bloomsbury Publishing India Pvt. Ltd., 2011. DYNAMIC LINKS 1. 2. 3. 4. 5. 6.

www.manupatra.com www.scconline.com www.heinonline.org www.westlawindia.com www.lexisnexis.com www.ebscohost.com IMPORTANT DEFINITIONS

1. Appellant for the purpose of this memorandum shall stand for Rampon. 2. Respondent for the purpose of this memorandum shall stand for Province.


-Index of Authorities-RespondentCASES 1. A.K. Roy v. Union of India(1982) 1 SCC 271_______________________________17 2. Abdul Kader v. State AIR 1964 Bom. 133___________________________________5 3. Adnan Bilal Mulla v. State of Bombay, 2006 CriLJ NOC 406Bom________________9 4. Ajay Aggarwal v. Union of India, AIR 1993 SC 1637__________________________5 5. Akanda v. Emperor, AIR 1944 Cal 339______________________________________3 6. Alive Hospitality and Food Private Limited v. Union of India, 2013 SCC OnLine Guj 3909________________________________________________________________15 7. Aravindan v. State of Kerala, 1983 Cr.L.J 1259_______________________________7 8. Aung Hla v. Emperor, AIR 1931 Rang. 235 at ¶236.___________________________6 9. Barinder Kumar Ghose v. Emperor, AIR 1925 PC 1___________________________1 10. Basdev v. State of Pepsu, AIR 1956 SC 488__________________________________2 11. Bhagwan Swarup Lal Bishan Lal v. State of Maharashtra, AIR 1965 SC 682._______4 12. Bimbadhar Pradhan v. State of Orissa, AIR 1956 SC 469_______________________4 13. Central Bureau Of Investigation v. Nalini & Ors., (1999) 5 SCC 253._____________4 14. Chiranjit Lal Chowdhury v. Union of India1950 SCR 869_____________________18 15. Damodar v. State of Rajasthan, AIR 2003 SC 4414____________________________5 16. Darshan Singh v. State of Punjab, 1983 S.C.C (Cr.) 523________________________5 17. E.G. Barsay v. State of Bombay AIR 1961 SC 1762___________________________2 18. E.K. Chandrasenan v. State of Kerala, AIR 1995 SC 1066______________________4 19. Emperor v. Maganlal (1946) Nag 126.______________________________________9 20. Emperor v. Subramaniyya Ayyer I.L.R 25Mad. 61 (P.C);________________________9 21. Firozuddin Basheeruddin & Ors. v. State of Kerala, (2001) 7 SCC 596.____________4 22. Harbans Kaur v. State of Haryana, AIR 2005 SC 2969_________________________3 23. Hitendra Vishnu Thakur and Ors. v. State of Maharashtra, 1995 Cri LJ 517________12 24. Idris Bhai Daud Bhai v. State of Gujarat, 2003 SCC 277._______________________3 25. Izhar Ahmad v. Union of India AIR 1962 SC 1052___________________________15 26. K.Hashim v. State of Tamil Nadu, (2005) 1 SCC 237__________________________5 27. K.R Purushothaman v. State of Kerala, AIR 2006 SC 35._______________________5 28. Kartar Singh v. State of Punjab, (1994) 3 SCC 569___________________________17 29. Kartar Singh, (1994) 3 SCC 569___________________________________________9 30. Kathi Raning Rawat v. State of Saurashtra, 1952 SCR 435_____________________17 -MEMORANDUM for THE RESPONDENT7

-Index of Authorities-Respondent31. Kedar Nath Bajoria v. State of W.B., AIR 1953 SC 404________________________17 32. Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955_________________________19 33. Kehar Singh v. State (Delhi Admn.), (1988) 3 SCC 609________________________2 34. M. Narsinga Rao v. State of A.P 2001 Cri LJ SC 515__________________________15 35. Mir Hasan Khan v. Emperor, AIR 1951 Pat. 60._______________________________7 36. Mohammad Usman Mohammad Hussain Maniyar and others v. State of Maharashtra, 1981 (2) SCC 443.______________________________________________________2 37. Mohammed Ajmal Mohammad Amir Kasab v. State of Maharashtra, AIR 2012 SC 3565.________________________________________________________________7 38. Mohd Hussain Umar Kochra v. KS Dalip Singhji, AIR 1970 SC 45_______________5 39. Mohd Khalid v. State of W.B., (2002) 7 SCC 334_____________________________5 40. Mohd. Jamiludin Nasir v. State of W.B., (2014) 7 SCC 443._____________________9 41. N.B. Khare (Dr) v. State of Delhi, 1950 SCR 519____________________________17 42. Neki Ram v. State of Haryana, (1974) 76 Punj. L.R 780________________________5 43. Pandurang Tukia and Bhillia v. State of Hyderabad, AIR 1955 SC 331.____________3 44. Pannalal Binjraj v. Union of India 1957 SCR 233____________________________17 45. R v. Hardie, (1820) 1 St. Tr. (N.S.) 765._____________________________________6 46. R v. Jones, (1832) 4 B & Ad 345__________________________________________2 47. R. v. Frost, (1839) 4.ST Tr. (N.S) 85:9 C &P. 129._____________________________6 48. R.K. Dalmia v. Delhi Administration, AIR 1962 SC 1821.______________________4 49. Rash Behari shaw v. Emperor, 38 Cr. L.J 545_________________________________1 50. Redaul Hussain Khan v. National Investigation Agency, (2010) 1 SCC (Cri) 822____11 51. Saju v. State of Kerala ,(2001) 1 SCC 378___________________________________3 52. Sardar Sardul Singh

Caveeshar v. State of Maharashtra, (1964) 2 SCR 378._______5

53. Sharad Yadav And Ors. v. Union Of India, 82 (1999) DLT 13.___________________4 54. Shivanarayan Laxminarayan Joshi & ors v. State of Maharashtra, (1980) 2 SCC 465_5 55. State (Delhi administration) v. Dilbag Rai, 1984(2) Crimes 971 (Delhi).___________5 56. State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru AIR 2005 SC 3820__________5 57. State of Bihar v. Paramhans Yadav, (1986) Pat LJR 688 (HC).___________________3 58. State of Bombay v. F.N. Balsara1950 SCR 62_______________________________18 59. State of Bombay v. R.M.D. Chamarbaugwala, 1957 SCR 874__________________17 60. State of M.P v. Desh Raj, 2004 Cri LJ 1415._________________________________3 -MEMORANDUM for THE RESPONDENT8

-Index of Authorities-Respondent61. State of Maharashtra v. Som Nath Thapa, (1996) 4 SCC 659__________________3, 9 62. State of West Bengal v. Anwar Ali Sarkar AIR 1952 SC 75_____________________18 63. State through Superintendent of Police, CBI/SIT v. Nalini and Ors, AIR 1999 SC 2640._______________________________________________________________12 64. State v. Jaigovind, 52 Cr. L.J 646__________________________________________1 65. Suresh Chandra Bahri v. State of Bihar, AIR 1994 SC 2420._____________________4 66. Talib Haji Hussain v. Madhukar P. Mondkar1958 SCR 1226____________________17 67. Union of India v. Tulsiram Patel 1985 SCC (L&S) 672________________________11 68. V. B. Raju v. Union Of India & Others, 1980 AIR 1671._______________________16 69. V.C Shukla v. State (Delhi Admn), AIR 1980 SC 1382_________________________1 70. Whitney v. Inland Revenue Commissioner 1926 AC 37_______________________14 71. Yakub Abdul Razak Memon v. State of Maharashtra2013 SCC OnLine SC 257_____14 72. Yash Pal Mittal v. State of Punjab 1978 Cr LJ 189_____________________________5


-Statement of Jurisdiction-

-Respondent-

STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of Bambia has the inherent jurisdiction to try, entertain and dispose of the present case by virtue of Article 136 of The Constitution of Bambia.

“Article 136. Special Leave to Appeal by the Supreme Court (1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India (2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces”


-Statement of Facts-

-Respondent-

STATEMENT OF FACTS I Bambia is one of the largest countries in the world with cultural, lingual and religious diversity with rich heritage. It is a quasi-federal, only democratic country and a leading economic player in the Asian Region. The Government of Bambia authorized corporate players to extract minerals. The initiative was opposed on a large scale by the people of central province in general and by the predominantly tribal districts in particular. The government deployed police and para-military forces (PMF) to suppress the protests; but gradually the protests became more organised and the protesters launched armed resistance(SDF) against Government initiatives. (SDF). In the ensuing conflict between SDF and Governmental forces, casualties were reported from both sides. Ribon continued his business in Dhatu and Karol, even after the dispute. II 1 March 1993- PMF personnel roaming near Ribon’s locality. Around 2.00 am when his family was asleep, few men in PMF attire knocked on his door and enquired about Ribon from the servant, who opened the door. Ribon was then interrogated about certain SDF people who were making purchases from his shop during daytime and was taken away for further enquiries. Next morning at 10.00 am, when Ribon did not return home, his family members tried to trace him but the police found his dead body on the outskirts of the Dathu forest range. After a Week(7 or 8 March 1993) – PMF shot all the family members, Rampon escaped and lived with his uncle Akande. He managed studies and work together. Depressed individual but bright student in academics influenced by writing different interpretations to the texts of Marx, Engles and Mao. III 2002- Rampon applied for common wealth scholarship and made it to a prestigious university of England for higher studies and chose a topic ‘Majoritarian Democracy and the Plight of Indigenous Minorities: A Socialist Perspective on Justice’ for his research project. Rampon’s life changed thereafter. With his conversations and discussions he became very popular among his batch mates. He started addressing the gatherings in the local community halls and gave them different insights of socialist ideals. Soon, many popular and influential people started coming to the places where Rampon addressed the public gatherings. A fan page was



-Respondent-

created on facebook followed by an account in his name by the end of 2005. Rampon and his followers thought of propagating essence of socialism in the western world on a larger scale, thereby conducting workshops in various places of North America and European Union. IV 2009- Rampon became a popular name among communist countries. His views went viral on all the social media and had around half a million followers on Twitter Rampon secured a domain name truesocialism.org to update his followers on the developments and scheduling of his events and programmes. ‘Quattics’, a company incorporated in Virginia (USA), offered him to be the ambassador for their Corporate Social Responsibility (CSR) avenues. Quattics is engaged in research and manufacture of nuclear and other technologically advanced weapons and has business transactions worldwide to supply and deliver weapons to Governments and other organizations. V 14th August, 2010- trueisocialism.org crossed the mark of 20 million followers. He also formed an NGO with the same name True-Socialism. True-Socialism received funds from around the world and its contributors include politicians, heads of states, corporations, and so on. Some of its contributors include the ones that are blacklisted by some western countries. Nevertheless, the organization became a platform for all sorts of monetary contributions. Quattics floated 20 million dollars subscribed capital. True-Socialism joined Alberico Co. Ltd.( Jamaica), a television news channel and later acquired the majority of above floated capital of Quattics. The funds received by true socialism thereafter were diverted for some other purposes. VI 5th December, 2012- Rampon and his group of six followers visited tribal people in the jungle areas of Central Province in Bambia. Rampon was received with open arms. Rampon happened to visit Karol wherein he was overwhelmed by his childhood memories, and one midnight he was seen crying and screaming on the outskirts of Dathu forest range. VII Six Months Later( June 2013 tentatively)- Rampon married Amati, a lady doctor there who happened to be the step daughter of one of the SDF leaders Memboya. Rampon moved around to propagate his ideas as well as for business endeavors. But primarily, he resided in Bambia. Through his NGO True-Socialism he opened the Institute for Studies in Scientific Socialism in Mayowa and Makrona (districts). VIII -MEMORANDUM for THE RESPONDENT12


-Respondent-

5th June, 2013- 4 persons with heavy range weapons were arrested for attempting to attack a police station in Naipur district of Central Provinces. During interrogation, two of them chewed cyanide and the remaining two confessed to being the alumni of Institute for Studies in Scientific Socialism, Mayowa and ID proofs of Neoland nationalities were recovered from all four of them. Two weeks later(19/20 June 2013), during midnight, in an attack against PMF camp in the remote area of Wharkhand district of Central Province, 136 people were killed, including civilians and PMF personnel and weapons embossed with Quattics were recovered from the scene. 23 August, 2013- Jagganagar tribal riots broke out and around 100 people from other provinces were killed. IX 25th November 2014- Parliament of Bambia was attacked by 20 armed persons, killed 3 gardeners and 4 security personnel. Thereafter, with the intervention of security forces 18 intruders were killed and 2 were arrested by the police. A detailed enquiry revealed the involvement of True-Socialism and the funds received from TrueSocialism. Further enquiry was not conducted as Rampon was in Chindesh for past two months to deliver lectures on socialism. X 11th February, 2015-Rampon was arrested from Makrona airport in Eastern Province. The Sessions Court sentenced him to life imprisonment. On an appeal by the Province, the High Court confirmed the charges but enhanced the punishment to death penalty. Rampon filed a petition to the Hon’ble Supreme Court of Bambia in April 2016.


-Questions of Law-

-Respondent-

QUESTIONS OF LAW

1. WHETHER THE CHARGES UNDER THE PENAL LAW IMPLICATED UPON THE ACCUSED IS VALID AND JUSTIFIABLE? 2. WHETHER THE CHARGES PRESSED AGAINST APPELLANT UNDER UAPA, 1967 AND PMLA, 2002 ARE JUSTIFIED? 3. WHETHER THE DUE PROCESS OF LAW HAS BEEN COMPLIED WITH?


-Summary of Arguments-

-Respondent-

SUMMARY OF ARGUMENTS 1. THE CHARGES UNDER PENAL LAW IMPLICATED UPON THE ACCUSED IS VALID AND JUSTICIABLE The counsel on behalf of State (hereinafter Respondent) most humbly submits that the penal action imposed on Rampon is valid and justifiable. The petitioner has indulged in a series of such criminal activities where his acts have created disturbance in the society and has restrained the public law and order of the State. The acts carried out by the appellant has created a state of terror in the mind of the people which has raised a grave question on the capability of the State in preserving peace and order in the society. The State has construed the penal provisions judiciously and has charged the appellant with the required penal provisions as stated there under. 2. THE CHARGES PRESSED AGAINST APPELLANT UNDER UAPA, 1967 AND PMLA, 2002 ARE JUSTIFIED The counsel on behalf of State (hereinafter Respondent) most humbly submits that the charges pressed against the appellant under the Unlawful Activities (Prevention) Act, 1967 and Prevention of Money Laundering Act, 2002 are justifiable. The appellant has carried out such attacks on the State and State Bodies which are none other than terrorist attacks. Such attacks has created terror in the mind of the general public and has shaken the foundation of democracy of Bambia.Under such circumstances, the appellant can be declared as a terrorist and the charges pressed against him is in consonance with the act committed by him. Then again, the Appellant has diverted the money which he used to get for his NGO towards such illegal activities. Under such circumstances, PMLA, 2002 is attracted judiciously. 3. THE DUE PROCESS OF LAW HAS BEEN COMPLIED WITH. The counsel on behalf of State (hereinafter Respondent) most humbly submits that the Due Process of law has been complied with. The State has followed the due process of law and moved the Sessions court after a detailed enquiry. The procedure of granting fair trial to the appellant has been meted out even in such a case where the security of the nation is in question. The charges were framed by the Sessions Court and the High Court confirmed it. This certifies that Due process of Law has been complied with. The State has left no stone unturned in giving fair and reasonable chance to the appellant to voice his plea in the appropriate court of law.


-Arguments Advanced-

-Respondent-

ARGUMENTS ADVANCED 1

THE PENAL ACTION IMPLICATED UPON THE ACCUSED IS VALID AND JUSTIFIABLE.

The counsel on behalf of the Province (hereinafter Respondent) pleads before the Hon’ble Court that the lower courts’ decisions are valid and justifiable. Rampon (hereinafter appellant) has conspired against the state in series of crime and the charges against him have been proved by corboration of circumstantial evidence Ultimately, the appellant has breached the allegiance to the sovereign by abetting the waging of war. 1.1

The Appellant Has Conspired Against The State In Series Of Crime

As per Section 120A of BPC “When two or more persons agree to do, or cause to be done – (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated as criminal conspiracy” The constituent elements of the offence of criminal conspiracy are: 1. An agreement between two or more persons 2. To do an illegal Act 3. To do a legal act by illegal means 4. An overt act done in the pursuance of the conspiracy.1 In Barinder Kumar Ghose v. Emperor2, Jetkins CJ observed: “though to establish the charge of conspiracy there must be an agreement, there need not be proof of direct meeting or combination, nor need the parties be brought into each other’s presence; the agreement may be inferred from circumstances raising a presumption of a common concerted plan to carry out the unlawful design3.

1 State v. Jaigovind, 52 Cr. L.J 646; Rash Behari Shaw v. Emperor, 38 Cr. L.J 545. 2 AIR 1925 PC 1. 3 State of Tamil Nadu through Superintendent of Police, CBI/SIT v. Nalini, AIR 1999 SC 2640; V.C Shukla v. State (Delhi Admn), AIR 1980 SC 1382.



-Respondent-

In the case of Ajay Aggarwal v. Union of India4, the court came up with the following reasoning: “It is not necessary that each conspirator must know all the details of the scheme nor be a participant at every stage. It is necessary that they should agree for design or object of the conspiracy.5 Also, the SC states that- “The gist of the offence is an agreement to break the law6”. Motive is something, which prompts a man to form intention. 7 The facts which constitute Motive for Rampon to be a party to the conspiracy are relevant in the present case. 8 The Hon’ble Apex Court of India has held that, for an offence under section 120-B of the BPC, 1860, the prosecution need not necessarily prove that the perpetrators expressly agreed to do or cause to be done the illegal act; the agreement may be proved by necessary implication. 9 Hence, even if any agreement between the parties has not been proved prima facie, it can be deduced from series of events, which is admissible in the court of law. In the instant case there are series of events that shows the involvement of accused in various crimes. There was a police station attack in 2013 as well as an attack on PMF camp. Later, the post of the accused on social media post has created terror in the mind of people, resulting in the migration of 2 lakhs people of Bambia, and parliament attack, which has threaten the security of the state of Bambia. In all these events, there has been direct or indirect involvement of True Socialism and the accused10. 1.1.1 Agreement can be proved by necessary implication

4 (1993) 3 SCC 609. 5 R v. Jones, (1832) 4 B & Ad 345. 6 E.G. Barsay v. State of Bombay AIR 1961 SC 1762. 7 Basdev v. State of Pepsu, AIR 1956 SC 488. 8 §8, Indian Evidence Act, 1872. 9 Mohammad Usman Mohammad Hussain Maniyar and others v. State of Maharashtra, 1981 (2) SCC 443. 10 Moot Proposition, Page 5, ¶14, ¶15, ¶16. -MEMORANDUM for THE RESPONDENT2


-Respondent-

The essence of the offence of conspiracy is the fact of combination by agreement. The agreement may be express or implied, or in part express and in part implied. It is not, however, necessary that each conspirator should have been in communication with the other.11 Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary, neither it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient.12

1.1.2 Appellant has been involved in illegal activity, in furtherance of agreement The second essential for proving existence of a criminal conspiracy is that of establishing that the agreement to conspire is to do an illegal act or a legal act by legal means. To establish this charge, knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary.13 It is immaterial whether the illegal act is the ultimate object of such crime, or is merely incidental to it.14 Under Section 43 of the BPC, an act would be illegal if it is an offence or if it is prohibited by law. This apart, the prosecution has not to establish that a particular unlawful use was intended as, the ultimate offence consists of a chain of actions.15 When the ultimate offence consists of a chain of actions 16, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do 17, so long as it is known that the

11 HALSBURY’S LAWS OF ENGLAND, (VOLUME 11, PP. 44 AND 58., 4TH EDITION). 12 Kehar Singh v. State (Delhi Admn.), (1988) 3 SCC 609, SCC pp. 732-33, ¶275. 13 Infra note 17 14 Saju v. State of Kerala ,(2001) 1 SCC 378. 15 State of Maharashtra v. Som Nath Thapa, AIR1996 SC 1744. 16 State of Bihar v. Paramhans Yadav, (1986) Pat LJR 688 (HC). 17 State of Maharashtra v. Som Nath Thapa, (1996) 4 SCC 659. -MEMORANDUM for THE RESPONDENT3


-Respondent-

collaborator would put the goods or service to an unlawful use. 18 The offence of criminal conspiracy consists in the co-operation of two or more persons. It is necessary all the persons should share the common intention. The ‘common intention’ implies a prior concert, that is, a prior meeting of minds and participation of all the members of the group in the execution of that plan.19 Common intention also means a desire to commit a criminal act without any contemplation of offence.20 It deals with doing of several acts, similar or diverse in furtherance of common intention.21 Direct proof of common intention is seldom; therefore intention could be inferred from circumstantial evidences. 22 To infer common intention an inference by a Court must be premise on the incriminating facts established by the prosecution.23 Section 120-A of BPC read with Section 10 of the Bambian Evidence Act, 1872 will come into play when court is satisfied that there is reasonable ground for belief that two or more persons have conspired together to commit an offence.24 There is no difference between the mode of proof of the offence of conspiracy and that of any other offence; it can be established by direct or circumstantial evidence25. Conspiracies are not hatched in the open, by their nature, they are secretly planned, they can be proved even by circumstantial evidence 26, and the lack of direct evidence relating to conspiracy has no consequence.27

18 Id. 19 Harbans Kaur v. State of Haryana, AIR 2005 SC 2969; Pandurang Tukia and Bhillia v. State of Hyderabad, AIR 1955 SC 331. 20 Akanda v. Emperor, AIR 1944 Cal 339. 21 Barendra Kumar Ghosh v. King Emperor, AIR 1925 PC. 22 State of M.P v. Desh Raj, 2004 Cri LJ 1415. 23 Idris Bhai Daud Bhai v. State of Gujarat, 2003 SCC 277. 24 DR. HARI SINGH GAUR, THE INDIAN PENAL CODE, 364, (15TH EDITION, DELHI LAW HOUSE, NEW DELHI, 2016) 25 Bhagwan Swarup Lal Bishan Lal v. State of Maharashtra, AIR 1965 SC 682. 26 Central Bureau Of Investigation v. Nalini & Ors., (1999) 5 SCC 253. 27 E.K. Chandrasenan v. State of Kerala, AIR 1995 SC 1066. -MEMORANDUM for THE RESPONDENT4


-Respondent-

The agreement need not be entered into by all the parties to it at the same time, but may be reached by successive actions evidencing their joining of the conspiracy.28 The rationale of conspiracy is that the required objective manifestation of disposition to criminality is provided by the act of agreement. Conspiracy is a clandestine activity. Persons generally do not form illegal covenants openly.29 1.1.3 Overt Act has been done in the pursuance of conspiracy The provisions, do not require that each and every person who is a party to the conspiracy must do some overt act towards the fulfilment of the object of conspiracy, the essential ingredient being an agreement between the conspirators to commit the crime and if these requirements and ingredients are established, the act would fall within the trappings of the provisions contained in Section 120-B.30 Overt acts are significant, since by the means of such acts that the existence of a conspiracy can be made out. In cases of conspiracy, the agreement between the conspirators cannot directly be proved but only be inferred from the facts.31 For an offence under Section 120B BPC, the prosecution need not necessarily prove that the conspirators expressly agreed to do or cause to be done the illegal act, the agreement may be proved by necessary implication.32 The charge of conspiracy against the appellant is proved by the existence of all the above mentioned essentials of conspiracy. The Appellant has propagated the idea of tribal rights movement which is their common intention. In pursuance of this common intention, the appellant and his organization is using illegal means to support the tribal rights which is legal in nature. It is very evident in the instant case that the move of the appellant is violent and is creating disturbance in the society which is straining the public law and order of the society. If the appellant is supporting the tribal rights, then there is a legal way to proceed with the

28 Sharad Yadav And Ors. v. Union Of India, 82 (1999) DLT 13. 29 Firozuddin Basheeruddin & Ors. v. State of Kerala, (2001) 7 SCC 596. 30 Suresh Chandra Bahri v. State of Bihar, AIR 1994 SC 2420. 31 Bimbadhar Pradhan v. State of Orissa, AIR 1956 SC 469; State v. Navjot Sandhu, (2005) 11 SCC 600. 32 R.K. Dalmia v. Delhi Administration, AIR 1962 SC 1821. -MEMORANDUM for THE RESPONDENT5


-Respondent-

same. Whereas, the step taken by the Appellant is not right in any of the way as it is only creating terror in the mind of the general people. 1.2

Circumstantial Evidence to Corroborate the Guilt of Accused

As per section 11(2) of Bambian Evidence Act,1860 “Facts not otherwise relevant are relevant, if by themselves or in connection with other facts highly probable or improbable” Conspirators cannot discuss the plans in the presence of stranger.33 Since privacy and secrecy are the elements of criminal conspiracy, it is difficult to obtain direct evidence in its proof. It can, therefore be proved by evidence of surroundings circumstances and conduct of accused both before and after the alleged commission of crime 34 In State of Bihar v Paramhans35 it was observed that “Conspiracy can be proved by circumstances and other materials 36, the evidence as to transmission of thoughts sharing the unlawful design may be sufficient.” In State v. Nalini37 it was observed that “Mostly conspiracies are proved by circumstantial evidence, as the conspiracy is seldom an open affair, usually both the existence of a conspiracy and its object have to be inferred from the circumstances 38 and the conduct39 of the accused”.

40

In Yash Pal Mittal v. State of Punjab41 it was observed that “it is not

necessary that all the conspirators must know each other and every detail of the conspiracy as long as they are co participators in the main object of conspiracy… and in which each one

33 Darshan Singh v. State of Punjab, 1983 S.C.C (Cr.) 523 at p. 527. 34 Neki Ram v. State of Haryana, (1974) 76 Punj. L.R 780at p. 786 (P&H) ; State (Delhi administration) v. Dilbag Rai, 1984(2) Crimes 971 (Delhi). 35 1986 Pat LJR 688. 36 Mohd Khalid v. State of W.B., (2002) 7 SCC 334. 37 AIR 1999 SC 2640. 38 V.C Shukla v. State, 1980 Cr LJ 965. 39 Shivanarayan Laxminarayan Joshi & ors v. State of Maharashtra, (1980) 2 SCC 465; Sardar Sardul Singh Caveeshar v. State of Maharashtra, (1964) 2 SCR 378.

40 State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru AIR 2005 SC 3820. 41 1978 Cr LJ 189; Nazir Khan &ors v. State of Delhi, AIR 2003 SC 4427. -MEMORANDUM for THE RESPONDENT6


-Respondent-

must be interested.”42 In Abdul Kader v. State43 it was laid down that conspiracy is a continuing offence and continues to subsist and committed wherever one of the conspirators does an act or series of facts... And during its subsistence, whenever anyone of the conspirators does an act or series of an act, he will be guilty44. No doubt on the point that, in the case of conspiracy there cannot be any direct evidence. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. 45 In V.C. Shukla v. State46 it was observed that a conspiracy can be inferred even from circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence. In the present case, the circumstantial evidence of the arms being recovered from the crime scene with Quattics embossed on it, the riots, the attempted attacks on police station and PMF camps, the depressing past of the appellant, the social media posts and the revengeful tone of criticism, all these events put together indicate that the appellant was involved in abetting the waging of the war against Bambia. The attackers of the events which happened in 2013, were found to be the Students of the Institute which the appellant founded. All the events throw light on the conspiracy being hatched and the abetment by the appellant by funding the terrorist acts and also the involvement of True Socialism. 1.3

Acts of appellant constitute Waging War against the Government of Bambia

As per S. 12147 “Whoever, wages war against the [Government of Bambia], or attempts to wage such war, or abets the waging of such war, shall be punished with death, or [imprisonment for life] [and shall also be liable to fine].” 42 Mohd Hussain Umar Kochra v. KS Dalip Singhji, AIR 1970 SC 45. 43 AIR 1964 Bom. 133; Ajay Aggarwal v. Union of India, AIR 1993 SC 1637; K.R Purushothaman v. State of Kerala, AIR 2006 SC 35.

44 Damodar v. State of Rajasthan, AIR 2003 SC 4414; K.Hashim v. State of Tamil Nadu, (2005) 1 SCC 237. 45 Nazir Khan & ors v. State of Delhi, AIR 2003 SC 4427. 46 1980 Cri. LJ 965. 47 Bambia Penal Code, 1860. -MEMORANDUM for THE RESPONDENT7


-Respondent-

To constitute high treason by levying war, there must be three elements- a. Insurrection, b. There must be force accompanying that insurrection and, c. it must be for the accomplishment of an object of general nature48. When a multitude rise and assemble to attain by force and violence any object of a general public nature, that is levying war within the contemplation of this section.49 To prove waging war, it is the purpose and intention, the object they have in view which congregates and assembles them together, which gives them the impulse in their arming and in their rising, it is that which constitutes treason and distinguishes crime from that of riot or any other rising for a private purpose that can be imagined.50 An illuminating discussion on the issue of “Waging war against the Government of India” is to be found in Court’s decision in State (N.C.T. of Delhi), l v. Navjot Sandhu @ Afsan Guru .51 P. Venkatarama Reddi, J., speaking for the Court, referred to the report of the Indian Law Commission that examined the draft Penal Code in 1847 and quoted the following passage from the report: “We conceive the term ‘wages war against the Government’ naturally to import a person arraying himself in defiance of the Government in like manner and by like means as a foreign enemy would do, and it seems to us, we presume it did to the authors of the Code that any definition of the term so unambiguous would be superfluous.52” In Section 12153, the word ‘overawe’ clearly imports more than the creation of apprehension or alarm or fear. It connotes the creation of a situation in which the Government is compelled to choose between yielding to force and exposing the Government or the members of the

48 R. v. Frost, (1839) 4.ST Tr. (N.S) 85:9 C &P. 129. 49 Aung Hla v. Emperor, AIR 1931 Rang. 235 at ¶236. 50 Per Lord President Hope in R v. Hardie, (1820) 1 St. Tr. (N.S.) 765. 51 AIR 2005 SC 3820. 52 Mohammed Ajmal Mohammad Amir Kasab v. State of Maharashtra, AIR 2012 SC 3565. 53 Bambia Penal Code, 1860. -MEMORANDUM for THE RESPONDENT8


-Respondent-

public to a very serious danger.54 It is not necessary that the danger should be danger of assassination or of bodily injury to them. The danger might well be a danger to public property or to the safety of members of the general public.55 The evidence required to establish a case under S. 121 must be directed to proving of the following points: 1. That the accused waged war or attempted to do so or abetted the same. 2. That such war was against the Government of Bambia.56 1.3.1Attack on parliament is directly and evidently attracting Section 12157 Though every terrorist act does not amount to waging war, certain terrorist acts can also constitute the offence of waging war and there is no dichotomy between the two. Terrorist acts can manifest themselves into acts of war. Terrorist acts prompted by an intention to strike at the sovereign authority of the State/Government, tantamount to waging war irrespective of the number involved or the force employed. However, the degree of animus or intent and the magnitude of the acts done or attempted to be done would assume some relevance in order to consider whether the terrorist acts give rise to a state of war. Yet, the demarcating line is by no means clear, much less transparent. It is often a difference in degree. The distinction gets thinner if a comparison is made of terrorist acts with the acts aimed at overawing the Government by means of criminal force. Conspiracy to commit the latter offence is covered by S.121A.58 The incorporation of Chapter IV of the Unlawful Activities (Prevention) Act, 1967, shall not be viewed as deemed repeal of Section 121 of the Penal Code. As explained in Navjot Sandhu case(Supra), a “terrorist act” and an act of “waging war against the Government of India” may have some overlapping features.59 The expression “Government of India” is surely not used in the narrow and restricted sense in Section 121. In our considered view, the expression “Government of India” is used in Section 54 Aravindan v. State of Kerala, 1983 Cr.L.J 1259. 55 Mir Hasan Khan v. Emperor, AIR 1951 Pat. 60. 56DR. HARI SINGH GAUR, THE INDIAN PENAL CODE, 364, (15TH EDITION, DELHI LAW HOUSE, NEW DELHI, 2016). 57 Bambia Penal Code, 1860. 58 State (N.C.T. of Delhi), l v. Navjot Sandhu @ Afsan Guru, AIR 2005 SC 3820. 59 Mohammed Ajmal Mohammad amir Kasab v. State of Maharashtra, (2012) 9 SCC 1. -MEMORANDUM for THE RESPONDENT9


-Respondent-

121 to imply the Indian State, the juristic embodiment of the sovereignty of the country that derives its legitimacy from the collective will and consent of its people. The use of the phrase “Government of India” is to signify the notion of sovereignty is consistent with the principles of Public International Law, wherein sovereignty of a territorial unit is deemed to vest in the people of the territory and exercised by a representative Government.60 The attack on parliament has facts similar to that of Parliament Attack Case61. The target chosen was Parliament - a symbol of the sovereignty of the Indian republic. The undoubted objective and determination of the deceased terrorists was to impinge on the sovereign authority of the nation and it’s Government. Even if the conspired purpose and objective falls short of installing some other authority or entity in the place of an established Government, it does not detract from the offence of waging war. 62 The Supreme Court emphatically stated that the attempted attack on the Parliament is an undoubted invasion of the sovereign attribute of the State including the ‘Government of India which is its alter ego’63 and terrorist acts prompted by an intention to ‘strike at the sovereign authority of the State/Government’ is tantamount to waging war, regardless of the numbers or force employed. In the instant case, the war on the parliament was to disrupt the proceedings of the parliament which was in session to introduce the bill regarding Smart Economic Zones. Such an act performed by True Socialism and the motivation and ideas propagated behind the veil of this organization by the petitioner is a true picture of ‘Waging War’. The appellant widely protested the Bill through his blog and also by his followers. An organized movement attended with violence and attacks against the public officials and armed forces while agitating for the repeal of an unpopular law or for preventing burdensome taxes were viewed as “waging war”.64

60 Supra Note 61. 61 Supra Note 58. 62Id. 63 Supra Note 22 64 Mohd. Jamiludin Nasir v. State of W.B., (2014) 7 SCC 443. -MEMORANDUM for THE RESPONDENT10


-Respondent-

1.3.2 Appellant in the present case will come under the purview of Abetment of waging war The offence of abetting the waging of war, having regard to the extraordinary facts and circumstances of this case, justifies the imposition of capital punishment and therefore the judgment of the High Court in regard to the conviction and sentence of Afzal 65 under S.121 B.P.C. shall stand.66 . The word “abets” needs to have the requisites of intention or knowledge.67 But here, there is no distinction between the principal and accessory, and all those who take part in the act incur the same guilt. 68Sec 121-A69of BPC makes conspiracy to commit offense under this section punishable. An action of waging war, attempt to wage war or abetment to wage war are also covered by s. 121-A. 70 It requires at least two persons to conspire and there is no limit to their number. Any alleged financial assistance provided would attract the enlarged definition of abetment given in Section 2(1)(a)(iii) of the TADA Act.71 Conspiracy is not punishable unless it amounts to an abetment, i.e., unless it is accompanied by an illegal act or omission.72 In the instant case, Abetment has been committed on the part of the appellant. In the instant case, the appellant has abetted the offence of waging war against the State. The attack on the Parliament of Bambia has challenged the basic foundation of democracy and such an attack is a direct proof that the people who had attacked the parliament had come with proper planning and, had not the security forces intervened to stop them, the attack could have been carried out with perfection. Such an attack cannot be carried out without proper funds being invested in buying heavy arms and explosives to carry out such an attack. After detailed inquiry, the investigators found that TrueSocialism was actively involved in 65 State (N.C.T. of Delhi), v. Navjot Sandhu @ Afsan Guru, AIR 2005 SC 3820. 66 Supra Note 65. 67 Kartar Singh, (1994) 3 SCC 569. 68 Emperor v. Maganlal (1946) Nag 126. 69 Bambia Penal Code, 1860. 70 Adnan Bilal Mulla v. State of Bombay, 2006 CriLJ NOC 406Bom. 71 State of Maharashtra v. Som Nath Thapa, (1996) 4 SCC 659 72 Emperor v. Subramaniyya Ayyer I.L.R 25Mad. 61 (P.C); Supra Note 15. -MEMORANDUM for THE RESPONDENT11


-Respondent-

this attack. Being the founder of this NGO, it is implied that any financial transaction within the NGO cannot be carried out with the intimation or assent of the appellant. This specifically shows that the appellant has abetted the offence of assisting the attack financially which is unlawful under the Unlawful Activities Prevention Act, 1967. 2

WHETHER THE CHARGES PRESSED AGAINST APPELLANT UNDER UAPA, 1967 AND PMLA, 2002 ARE JUSTIFIED?

The council humbly submits in this Hon’ble court that, by analyzing the facts in hand, the Session Court And High Court are very much justified in pressing charges of financing terrorism and money laundering against the accused, as detailed enquiry has shown the involvement of TrueSocialism and its fund. 2.1

Unlawful Activity Prevention Act, 1967

2.1.1That the True socialism will come under the purview of Terrorist organisation Chapter VI of UAPA73 discusses about terrorist organization, where Section 35 discusses the power of Central Government to add or remove any terrorist organization. In the present case, the issue is that the organization in question has not been declared as unlawful organization. Here, the acts carried out by the Appellant and his NGO-True Socialism are terrorist activities. In such circumstances, it is very evident that the Appellant will take the plea that his organization is not a terrorist organization as with accordance to The Unlawful Activities (Prevention) Act, 1967. But, the counsel humbly contends that a mere inclusion or noninclusion into a list which is not exhaustive does not entail that True Socialism is a lawful organization. The activities carried out by the organisation and its allied institutions are more than enough to prove that the organization has played a major part in inciting terrorism in various parts of the country. In Redaul Hussain Khan v. NIA74, the Guwahati HC discussed at length the distinction between a terrorist organization and terrorist gang. It observed that the intent behind making the distinction was to ensure that even terrorist acts committed by individuals or

73 Unlawful Activities Prevention Act, 1967 74 2012 SCC OnLine Gau 341, Pg. 81-97 -MEMORANDUM for THE RESPONDENT12


-Respondent-

organizations not listed in the Schedule should not be permitted to escape prosecution under the Act. Merely because the organization concerned had not been declared as an “unlawful association” when the appellant was arrested, it cannot be the said that the organization could not have indulged in terrorist acts or that the appellant could not have had knowledge of such activities.75 2.1.2 Section 1576- Terrorist Activity- Accused and his organisation has been indulged in the terrorist activity Under UAPA Section 15 gives the definition of terrorist Activity as “Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country.” Further the sections provides for the different methods for terrorist activity77. The act of the appellant starting from the attack on the Police Station to the attack on the Parliament, all these attacks have tried to create disturbance in the society and has challenged the capability of the state in preserving the law and orders successfully. Such concurrent acts of violence by the appellant has created a reign of terror in the minds of the general public as such an attack was not only to disturb the law and order situation of the state but also to create a state of fear in the minds of the citizens of Bambia. Such an act of the appellant cannot be pardoned at any cost and the appellant has no such right to claim the fundamental rights enshrined in the Constitution of India, 195078. Public Order, Law and Order and Security of the State were discussed at length in the case of Union of India v. Tulsiram Patel.79

75 Redaul Hussain Khan v. National Investigation Agency, (2010) 1 SCC (Cri) 822 at page 521. 76 Unlawful Activities Prevention Act, 1967. 77 Id. 78 Page 5, ¶14, Moot Proposition, Army Institute of Law National Moot Court Competition 2016. -MEMORANDUM for THE RESPONDENT13


-Respondent-

The expressions “law and order”, “public order” and “security of the State” have been used in different Acts. Situations which affect “public order” are graver than those which affect “law and order” and situations which affect “security of the State” are graver than those which affect “public order”. Thus, of these situations those which affect “security of the State” are the gravest. Danger to the security of the State may arise from without or within the State. The expression “security of the State” does not mean security of the entire country or a whole State. In includes security of a part of the State. It also cannot be confined to an armed rebellion or revolt. There are various ways in which security of the State can be affected. It can be affected by State secrets or information relating to defence production or similar matters being passed on to other countries, whether inimical or not to our country, or by secret links with terrorists. It is difficult to enumerate the various ways in which security of the State can be affected. The way in which security of the State is affected may be either open or clandestine. In Hitendra Vishnu Thakur and Ors. v. State of Maharashtra80 the court said that “A ‘terrorist’ activity does not merely arise by causing disturbance of law and order or of public order. The fall out of the intended activity must be such that it travels beyond the capacity of the ordinary law enforcement agencies to tackle it under the ordinary penal law”.81 Also in Kartar Singh’s case the Hon’ble 82Court with reference to Section 3 of TADA (Same as section 15 of UAPA) has held that “Section 3 when a person not only intends to overawe the Government or create terror in people etc. but he uses the arms and ammunitions which results in death or is likely to cause and damage to property etc. In other words, a person becomes a terrorist or is guilty of terrorist activity when intention, action and consequence all the three ingredients are found to exist83.”

79 1985 SCC (L&S) 672 at page 508 ¶141 80 1995 Cri LJ 517. 81 State through Superintendent of Police, CBI/SIT v. Nalini and Ors, AIR 1999 SC 2640. 82 Infra note 103. 83 Hitendra Vishnu Thakur and Ors. v. State of Maharashtra, 1995 Cri LJ 517 as referred in State through Superintendent of Police, CBI/SIT v. Nalini and Ors. -MEMORANDUM for THE RESPONDENT14


-Respondent-

In the present case also, the chronology of facts shows that the Penal Code of Bambia is not sufficient to tackle the indulge crimes by accused, also the indulged involvement of accused is fulfilling the requisites of terrorist activity given in Kartar Singh case. Hence it is necessary under law to convict the accused under UAPA to meet the end of justice. 2.1.3That the crime of Financing terrorism has been proved against the accused According to Section 17 of UAPA, 1967 “Whoever, in India or in a foreign country, directly or indirectly, raises or collects funds or provides funds to any person or persons or attempts to provide funds to any person or persons, knowing that such funds are likely to be used by such person or persons to commit a terrorist act, notwithstanding whether such funds were actually used or not for commission of such act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.” Authoritative Definition of terrorism is has not been given anywhere. Because of this ambiguity, at different instances, terrorism has been defined in different ways. In Nazir Khan v. State of Delhi different definition of terrorism has been discussed at length. This case has mentioned that “All criminal acts directed against a State along with intended or calculated to create a statute of terror in the minds of particular persons or a group of persons or the general public”84. Also “Terrorism is the unlawful use of force or violence against persons or property to intimidate or coerce a Government, the civilian population, or any segment thereof, in furtherance of political or social objectives”85. In Redaual Hussain Khan v. NIA86 while stating that money rose must be indented to be used for terror financing, the court held that Section 1787 would cover raising collecting and 84 League of Nations Convention (1937). 85 Federal Bureau of Investigation. 86 2012 SCC Online Gau 341, ¶74. 87 Section 17, Unlawful Activities Prevention Act, 1967: [Punishment for raising funds for terrorist act. —Whoever, in India or in a foreign country, directly or indirectly, raises or collects funds or provides funds to any person or persons or attempts to provide funds to any person or persons, knowing that such funds are likely to be used by such person or persons to commit a terrorist act, notwithstanding whether such funds were actually used or not for commission of such act, shall be punishable with imprisonment for a term which shall not be -MEMORANDUM for THE RESPONDENT15


-Respondent-

providing funds to a person known to engage in terrorist acts. The fundraiser need not to know exactly what terrorist act would be committed since it is difficult to find evidence of conspiracy. In the pertinent case, it has been clearly given that the organization of the appellant had been involved in the Parliament Attack as well as in the process, the funds of the Organization has also been used. This clearly makes the accused liable under section 15 and 17 of UAPA. Other than the clear involvement in parliament attack, there are series of events which shows the involvement of accused in various criminal Acts, like 1) Attempt at attack on Police Station in Naipur, 2. Attack against PMF camps 3.Jagganagar Tribal Riots. A clear analogy can be drawn here, because in all these criminal activities, object was same which was propagated by the appellant. The circumstantial evidence collected from the crime scene where the weapons collected was embossed with Quattics.88 The appellant has significant shares in Quattics and he is the brand ambassador of it. Hence, there is no infirmity on the part of respondent when it charged the accused under the purview of financing terrorism. 2.2

Prevention of Money Laundering Act, 2002

As per Section 3 of PMLA,2000, which defines the offence of Money Laundering, “Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime and projecting it as untainted property shall be guilty of offence of money-laundering”.89 The essential ingredients of this definition are that: i) a crime has been committed; ii) there are proceeds of or gain from the crime; and iii) there is a transaction in respect of the proceeds of the gain. In Whitney v. Inland Revenue Commissioner90 regarding the interpretation of special statute, it was observed as under: “A statute is designed to be

less than five years but which may extend to imprisonment for life, and shall also be liable to fine.] 88 Moot Proposition, Page 5, ¶15. 89 Section 3, Prevention of Money Laundering Act, 2002. 90 1926 AC 37. -MEMORANDUM for THE RESPONDENT16


-Respondent-

workable, and the interpretation thereof by a court should be to secure that object unless crucial omission or clear direction makes that end unattainable.” In Yakub Abdul Razak Memon v. State of Maharashtra 91 this Hon’ble Supreme Court has held that since it is not necessary for an organization to be declared unlawful for it to commit terrorist acts, even support given to an association not declared unlawful would be criminalized as long as there was knowledge that terrorist acts were being committed. In Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and Anr92 where by discussing the object of money laundering act, this court has discussed that “Organized crime has been for quite some years now come up as a very serious threat to our society. It knows no national boundaries and is fuelled by illegal wealth generated by contract, killing, extortion, smuggling in contrabands, illegal trade in narcotics kidnappings for ransom, collection of protection money and money laundering, etc. The illegal wealth and black money generated by the organized crime being very huge, it has had serious adverse effect on our economy. It was seen that the organized criminal syndicates made a common cause with terrorist gangs and foster terrorism which extend beyond the national boundaries. There was reason to believe that organized criminal gangs have been operating in the State and, thus, there was immediate need to curb their activities93. 2.2.1 Section 23- The court court can presume guilt, in series of events According to Section 23 of the Act, if the involvement of organization in one crime has been proved, the court can presume the involvement of the organization in other interconnected events automatically. In Izhar Ahmad v. Union of India94, Gajendragadkar, J. [as his Lordship then was] observed (in the majority opinion of the Constitution Bench) that: The term “Presumption” in its largest and most comprehensive signification, may be defined to be an inference, affirmative

91 2013 SCC OnLine SC 257. 92 AIR 2005 SC 2277. 93 Id. 94 AIR 1962 SC 1052. -MEMORANDUM for THE RESPONDENT17


-Respondent-

or disaffirmative of the truth of false-hood of a doubtful fact or proposition drawn by a process of probable reasoning from something proved or taken for granted. In M. Narsinga Rao v. State of A.P95, Justice Thomas observed that presumption is an inference of a certain fact drawn from other proved facts. While inferring the existence of a fact from another, the Court is only applying a process of intelligent reasoning which the mind of a prudent man would do under similar circumstances. Presumption is not the final conclusion to be drawn from other facts, but it could as well be final, if it remains undisturbed later. Presumption in the law of evidence is a rule indicating the stage of shifting the burden of proof. From a certain fact or facts the Court can draw an inference and that would remain until such inference is either disproved or dispelled. Having regard to the fact that money-laundering is indulgence, informed assistance or being a party to or actual involvement in any process or activity connected with proceeds of crime and projecting it as untainted property, inherently assuming a degree of deceit and camouflage in the process of layering the proceeds of crime through a series of transactions, in the considered legislative wisdom, a presumption in inter-connected transactions is enjoined by Section 23 of the Act, contingent upon one or more of inter-connected transactions having to be proved to be involved in money-laundering.96 The rule of presumption enjoined by Section 23 takes away judicial discretion either to attach or not due probative value to the fact that one or more of the inter-connected transactions have been proved to be involved money-laundering; and requires prima facie due probative value to be attached and mandates an inference that the other transactions form part of the raft of inter-connected transactions involved in money-laundering, subject of course to the said presumption being rebutted by proof to the contrary.97 That, provisional order of attachment of the subject property and confirmation thereof do not violate Article 14 or Article 20(1) and/or (2) of the Constitution of India. That, reliance

95 2001 Cri.L.J.SC 515. 96 Alive Hospitality and Food Private Limited v. Union of India, 2013 SCC OnLine Guj 3909. 97 Id. -MEMORANDUM for THE RESPONDENT18


-Respondent-

placed on Division Bench of Andhra Pradesh High Court in the case of B.Rama Raju98, more particularly emphasis supplied and marked as 1(a) to 1(h), 2(a) to 2(d), 3(a) to 3(d) and 4(a) to 4(c) in this order, answer the challenge of the respective parties about exercising power under Sections 5 and 8 of the PML Act being violative of Article 14, 20 and 21 of the Constitution of India. In the present case the accused and his organization’s funding was involved in the terrorist attack on parliament and before this the organization was portraying that it is a lawful organization which has not been indulged in any illegal activity, whereas the actual picture is totally different. As the involvement in parliamentary attack has been proved, the court can presume the involvement in other matters automatically. Also, here organizations have used the name and fame of the accused as a cloak to hide their illegal activity. Hence, the courts have not erred in convicting the accused under the prevention of money laundering act, and the accused is liable under section 3, 4 and 23 of the Act. 3 . THE DUE PROCESS OF LAW HAS BEEN COMPLIED WITH. The counsel on behalf of the Respondent humbly submits that the Due Process of Law has been complied with. The case is of a grievous nature and the involvement of a terrorist in such a case has made it of special importance where the procedural aspect has been set aside for such acts which are not dealt under the general law and order provisions. A terrorist act, as discussed, creates terror in the minds of the people which is a drawback for a democratic country. In such cases, the constitutional validity of any such special penal statute cannot be challenged which specifically deals with the procedure established by law regarding the trial of the offence. In the instant case, the Government has complied with the due process of law by carrying out a detailed inquiry.99 The accused was produced in the Sessions Court where after the State then preferred an appeal against the sentence given by the Sessions Court to the High Court and after perusing through the facts of the case, the High Court went on to enhance the punishment of life imprisonment to death sentence.100

98 V. B. Raju v. Union Of India & Others, 1980 AIR 1671. 99 Page 6, ¶ 16, Moot Proposition, Army Institute of Law National Moot Court Competition 2016. -MEMORANDUM for THE RESPONDENT19

-Arguments Advanced3.1

-Respondent-

Act of Government not violative of Article 14, 19 and 21 of Constitution of Bambia, 1950

Parliament has got the legislative competence to enact this law namely the TADA Act and the Special Courts Act of 1984. When the validity of this section is scrutinised in the above background, we can safely hold that the procedure prescribed under this Act cannot be said to be unjust, unfair and oppressive, offending Articles 14 and 21 of the Constitution.101 The counsel contends that the procedure under the normal penal laws had become grossly inadequate and ineffective to try the distinct group of offenders, i.e., terrorists and disruptionists for the classified aggravated nature of offences and that his submission is fortified by the statistics with regard to the terrorist crimes in the State of Punjab from 1984 to 1992, annexed in the compilation of his written submission before the court and the debates and discussion made in the Parliament at the time of introduction of the Bill (TADA). It is a well settled principle that stringency and harshness of provisions are not for courts to determine.102

In the case of Pannalal Binjraj v. Union of India103, the Supreme Court went on to say that that mere possibility of abuse is not a valid ground to challenge the validity of a statute. There have been many such instances where it has been argued that fair trial involves only the accused. All the safeguards of constitution should be given to the accused in certain circumstances. But in the case of Talib Haji Hussain v. Madhukar P. Mondkar 104, it has

100 Page 7, ¶ 17, Moot Proposition, Army Institute of Law National Moot Court Competition 2016. 101 Kartar Singh v. State of Punjab, (1994) 3 SCC 569. 102 N.B. Khare (Dr) v. State of Delhi, 1950 SCR 519; Kathi Raning Rawat v. State of Saurashtra, 1952 SCR 435 ; Kedar Nath Bajoria v. State of W.B., AIR 1953 SC 404; State of Bombay v. R.M.D. Chamarbaugwala, 1957 SCR 874. 103 1957 SCR 233. 104 1958 SCR 1226. -MEMORANDUM for THE RESPONDENT20


-Respondent-

been ruled that fair trial has two objects in view, namely, it must be fair to the accused and also to the prosecution.

In the instant case, the act of the accused has created internal disturbance in the province of Bambia where such acts carried out by the accused has created a state of terror in the minds of the general public. When the security of people at large is at stake, it is the role of the Government as well as the courts to restrict such person who in-still fear in the minds of the general public. In A.K. Roy v. Union of India105, it has been held that liberty of individual has to be subordinated to the good of the people. The Legislature is free to make classifications in the application of a statute which are relevant to the legislative purpose. The ultimate test of validity is not whether the classes differ but whether the differences between them are pertinent to the subject with respect to which the classification is made.106

Article 14 have been elaborately explained in two earlier decisions of this Court viz. Chiranjit Lal Chowdhury v. Union of India 107 and State of Bombay v. F.N. Balsara 108 and the principles laid down in those decisions have to be kept in view in deciding the present case. One of these principles is that Article 14 is designed to protect all persons placed in similar circumstances against legislative discrimination, and if the legislature takes care to reasonably classify persons for legislative purposes and if it deals equally with all persons belonging to a well-defined class, it is not open to the charge of denial of equal protection on the ground that the law does not apply to other persons.

105 (1982) 1 SCC 271. 106 [90 L Ed 6 : 326 US 207 (1945)]. 107 1950 SCR 869. 108 1950 SCR 62. -MEMORANDUM for THE RESPONDENT21


-Respondent-

In the case of State of West Bengal v. Anwar Ali Sarkar 109, Fazi Ali,J., observed the following: “The guaranty of the equal protection of the laws means the protection of equal laws. It forbids class legislation, but does not forbid classification which rests upon reasonable grounds of distinction. It does not prohibit legislation, which is limited either in the objects to which it is directed or by the territory within which it is to operate. ‘It merely requires that all persons subject to such legislation shall be treated alike under like circumstances and conditions both in the privileges conferred and in the liabilities imposed.”110 3.1.1

The social media post by appellant will amount to sedition

In the instant case, the accused gave posted in the Social Media website the following message; “go to places where you have come from, anti-tribal activities shall not be tolerated by congregational procession in Badheli; surely, revenge shall be taken”.111 This message given by the accused created a lot of internal disturbance in Jagganagar and Badheli as people who had not yet come over the plight of the Jagganagar riots had got a reasonable inference that will again face a similar situation in the near future. Such an apprehension raised an alarm in the society where all the migrants who had come for various purposes started rushing to railway stations and airport to go back to their places. This created a lot of disturbance in the law and order situation of the state where the Home Minister had to intervene personally to appeal to the people for restoring peace and order in the State. Such an action by the accused trying to disable the State machinery and disturb the tranquillity of the State. Section 124A deals with ‘Sedition’, Sedition is a crime against society nearly allied to that of treason, and it frequently precedes treason by a short interval. Sedition in itself is a comprehensive term, and it embraces all those practices, whether by word, deed, or writing, which are calculated to disturb the tranquillity of the State, and lead ignorant persons to endeavour to subvert the Government and laws of the country. The objects of sedition 109 AIR 1952 SC 75. 110 WILLIS, CONSTITUTIONAL LAW, 579, (THE PRINCIPIA PRESS, UNITED STATES, 1936). 111 Page 6, ¶15, Moot Proposition, Army Institute of Law National Moot Court Competition 2016. -MEMORANDUM for THE RESPONDENT22


-Respondent-

generally are to induce discontent and insurrection, and stir up opposition to the Government, and bring the administration of justice into contempt; and the very tendency of sedition is to incite the people to insurrection and rebellion. Sedition has been described as disloyalty in action, and the law considers as sedition all those practices which have for their object to excite discontent or dissatisfaction, to create public disturbance, or to lead to civil war; to bring into hatred or contempt the Sovereign or the Government, the laws or constitutions of the realm, and generally all endeavours to promote public disorder.112 After a brief perusal of the facts as well as the law involved, it can be easily inferred that the acts carried out by the Appellant are illegal and penal in nature. The appellant has tried to proceed with a legal procedure illegally by conforming to violence which strained the public law and order situation of the State. Starting from the attack on the police station which killed more than 136 members till the Parliament attacks, the circumstantial evidence proves that the appellant has conspired the series of attacks to weaken the government machinery and overawe the same. Such attacks on the Government did raise a question on the security of the state and the security which it provides to the common people. This has created ripples of disturbance across the province. To preserve the security of the State and the common citizens, it is the need of the hour to stand together against terrorism and terrorism related activities. Such activities cannot be tolerated and a strict procedure should be followed to restrict such mis-happenings in the future. To create a deterrent, the honourable Supreme Court should confirm the sentence awarded by the High Court.

112 Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955. -MEMORANDUM for THE RESPONDENT23

-Prayer -

-Respondent-

PRAYER

IN THE LIGHT OF THE ARGUMENTS ADVANCED AND AUTHORITIES CITED, THE APPELLANT HUMBLY PLEADS BEFORE THE HON’BLE COURT TO:

1. UPHELD THE DECISION OF THE SESSIONS COURT AND THE HIGH COURT.

ANY OTHER ORDER AS IT DEEMS FIT IN THE INTEREST OF EQUITY, JUSTICE AND GOOD CONSCIENCE.

FOR THIS ACT OF KINDNESS, THE APPELLANT FACTION SHALL BE DUTY BOUND FOREVER.

SD/(COUNSEL FOR THE RESPONDENT)


Team Code Ck9 (Respondent)

Recommend Documents