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ICFAI LAW SCHOOL
Internal Moot Court Exam
Before
THE HON’BLEHIGH COURT FOR THE STATE OF GAZEL AT: ZAMBAI
CASE SEEKING UNDER S. 374 (2) OF CR.P.C. AND S. 101 OF J.J ACT
MEMORIAL ON BEHALF OF THE RESPONDENT
Ravi…...................................................................Appellant V/s State of Gazel...............................................................Respondent
MOST RESPECTFULLY SUBMITTED BEFORE THE HON’BLE JUDGE OF THE
HIGH COURT OF JUDICATURE FOR THE STATE OF G AZEL AT ZAMBIA.
MEMORANDUM ON BEHALF OF RESPONDENT And Filed By The Counsel For The Respondent. Name: Divya Nimbalkar Enrolment No: Batch:
[MEMORIAL FOR THE RESPONDENT] Page^ II
Table of Contents
Index of Abbreviations...........................................................III
Index of Authorities..............................................................IV
Cases...............................................................................................................IV Articles.............................................................................................................IV Statute...............................................................................................................V
Statement of Jurisdiction........................................................VI
Statement of Facts................................................................VII
Issues Presented....................................................................IX
Summary of Arguments..........................................................X
Arguments Advanced............................................................ 11
I. Whether the punishment given to accused is valid or not?........................ 11
II Whether the crime is heinous to consider a juvenile as an adult?.............. 11
A. The appellant had mens rea to commission the crime................................................................. 11 B. Is the tenure of his punishment justifiable.............................................................................. 14
III. Whether the appeal is maintainable before the honorable HC of Ghazel? 15
A. The offence committed is a heinous offence.............................................................................. 15 B. When is a child tried as an adult?.............................................................................................. 16
Prayer.................................................................................... 18
[MEMORIAL FOR THE RESPONDENT] Page^ IV [INDEX OF AUTHORITIES]
INDEX OF AUTHORITIES
Cases
Kalem Tumba v. State Of Maharashtra And Onr on 16 September, 1999 Karnail Singh v. State Of Rajasthan on 13 September, 2000 Sheela Barse & Ors v. Union Of India & Ors on 13 August, 1986 Salil Bali v. Union Of India & Onr on 17 July, 2013 Goklaram Jeruparamji Dhaka ... v. State Of Gujarat on 6 November, 2003 Dharampal Singh v. State of Punjab State of Assam v. Papuia Hmar and Ors Om Prakash v. State Of Rajasthan & Onr on 13 April, 2012 Lokesh Choudhary v. State on 17 May, 2018 1 Jaswant Singh v. State on 15 February, 2018 1 Sudheer v. state of kerala 1 Sanjay Kumar Giri v. State Of M.P. on 21 December, 1999 1 Sumit (Minor) v. State Of U.P. And Ors on 22 November, 2019 Mohd. Shakil Khan (Juvenile) v. State Of U.P. on 8 May, 2017 Jhabua murder case 2017
Articles
Juveniles in the Hands of Narcotic Drugs: Study on Drug Abuse By Monisha Testing for Drugs of Abuse in Children and Adolescents Sharon Levy, Lorena M. Siqueira and others
[MEMORIAL FOR THE RESPONDENT] Page^ V Juvenile justice: securing the rights of children during 1998 - 2008 Ved Kumari Shifting Epistemology of Juvenile Justice in India by Shailesh Kumar Handbook for Advocates working with Children in Conflict with Law in India. STATUTES The Juvenile Justice Act (Care and Protection of Children) Act, 2015 The Narcotic Drugs and Psychotropic Substances Act, 1985 Code of Criminal Procedure
[MEMORIAL FOR THE RESPONDENT] Page^ VII
[MEMORIAL FOR THE RESPONDENT] Page^ VIII
STATEMENT OF FACTS
- Ravi a student of KKR law school. As his 17th birthday was approaching on 05/08/2019 he invited his batch mates and seniors for his birthday party at a “Dhaba” near the law school. Amongst others his closest friends were Varun aged 19, Gyan aged 19, Hitesh aged 20, Jadeja aged 20, they all enjoyed at the restaurant with the music and good food. They also offered liquor and cigarette to Ravi but he denied taking them as he didn’t feel comfortable.
- Jadeja invited Varun, Gyan, Hitesh and Ravi to his birthday party at the same “Dhaba” where Ravi had his birthday party on 22/01/2020, and as it was a holiday, so Ravi invited his cousin Shyam, aged 15 years. They reached their together around 9:00 pm where they started dancing together. Varun, Gyan, Hitesh and Jadeja had gotten liquor, “joints” for smoking and some snacks to eat. Whenever any member wanted to smoke, all the members went together outside and shared the “joint”. On that occasion, Ravi and Shyam although, refused to smoke directly, they accompanied them. After an hour of dancing, they started feeling hungry. Jadeja and Gyan offered some brownies and liquor to the rest. Everyone shared the brownies.
- The liquor was consumed by everyone except for Ravi and Shyam. After a few minutes of consuming the brownies, Ravi and Shyam started feeling dizzy; however, they thought it was from dancing. They continued to dance and again after a few minutes they proceeded outside to smoke. While they were smoking the entire place was raided by the local police. The police caught everyone including Ravi and Shyam, Police have found five packets of charas in three bags, belonging to this group following which they seized the charas and arrested them and brought them under police custody.
- The next morning all six of them were taken before the nearest Magistrate, where the police produced evidences collected from the site of occurrence. 250 grams of loose Charas was found in one of their bags. Based on such prima facie evidence, the Magistrate forwarded Ravi and Shyam to the Juvenile Justice Board, and remanded others to custody.
- The investigating officer thereafter, took them for medical examination. On conducting the examination, cannabis was found in their urine. Ravi and Shyam were forwarded to the Special Juvenile Police Unit. The Juvenile Justice Board refused bail
[MEMORIAL FOR THE RESPONDENT] Page^ X to both the children on the ground that their release will defeat the ends of justice, and sent them to Ghazel’s observation home for children in conflict with law.
- The JJ Board after conducting preliminary assessment decided that Ravi shall be tried as an adult and transferred the trial of the case to the Children’s Court. The Children’s Court decided to try him as an adult under the provisions of the Code of Criminal Procedure, 1973. The trial was then conducted and the Children’s Court convicted Ravi sentenced to ten years of imprisonment, out of which, Ravi is to be kept in a special home till he attains 21 years of age, and the rest of his termed is to be served by him in a regular jail.
[MEMORIAL FOR THE RESPONDENT] Page^ XI
[ ISSUES PRESENTED]
ISSUES PRESENTED ISSUE I: Whether the appeal is maintainable before the honorable high court of Ghazel? ISSUE II: Whether the punishment given to accused is valid or not? ISSUE III: Whether the crime is heinous to consider a juvenile as an adult?
[MEMORIAL FOR THE RESPONDENT] Page^11 [ARGUMENTS ADVANCED]
ARGUMENT ADVANCED
I. Whether the appeal is maintainable or not?
(¶1.) The appeal filed by the appellant is not maintainable. There were no merits in the present application as the Juvenile Justice Board had correctly appreciated the facts and had given cogent reasons for the same. (¶2.) In the case of kalema tumba^1 , the learned judge convicted the appellant for the offences punishable under section 8(c) and section 23 read with section 28 and 8(c) of N.D.P.S. Acts. In matter of devoid of merits in this appeal, it is dismissed.
In view of the above, the appeal is unmerited and is, accordingly, it shall be dismissed.
II. Whether the punishment given to accused is valid or not? (¶3.) It is humbly submitted that the punishment given to him is valid. The appellant is convicted on the basis on S. 35 and S.54 of N.D.P.S Act and S. 20(b)(ii)c of N.D.P.S. Acts. A. The appellant had mens rea to commission the crime (¶4.) The Explanation to section 35^2 provides that in the section "culpable mental state" includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact. He has relied on a decision of Hon'ble Supreme Court in Karnal Singh V/s State of Rajasthan (^3) wherein Hon'ble Apex Court has held that appellant therein had not discharged the burden of proof in any manner to rebut the presumption as envisaged under section 35 of the Act and, therefore, he has been proved that appellant was transporting Opium with a conscious mind and full knowledge. All the ingredients of the offence with which the appellant had been convicted and sentenced had been proved by the prosecution. (^1) Kalem Tumba v. State Of Maharashtra And Anr on 16 September, 1999 (^2) Section 35 in The Narcotic Drugs and Psychotropic Substances Act, 1985 (^3) Karnail Singh v. State Of Rajasthan on 13 September, 2000
[MEMORIAL FOR THE RESPONDENT] Page^12 [ARGUMENTS ADVANCED] (¶5.) In the present case, the juvenile and Ors were found in possession of five packet ( grams each) of charas in one of their bags.^4 This act show that the appellant was with a conscious mind and full knowledge that he was in possession of drugs. Muchless that they are aware of the consequences of N.D.P.S. Act (¶6.) The juveniles have failed the onus of proof as envisaged under section 35 of the N.D.P.S. Act. Section 35 of the N.D.P.S. Act provides that in any prosecution for an offence under this Act which requires culpable mental state of the accused the court shall presume the existence of such mental state As noticed above and have failed to account for the possession of the same satisfactorily and, therefore, the presumption under section 54 of the N.D.P.S. Act goes against the juveniles. (¶7.) At this juncture, Section 54 of the Narcotic Drugs and Psychotropic Substances Act comes into play. Section 54 of the N.D.P.S.Act. Under S. 52 (1) of N.D.P.S. Act say if the accused is found in possession of any narcotic drug or psychotropic substance or controlled substance he fails to account satisfactorily. 5 (¶8.) In the case of Goklaram Jeruparamji Dhaka^6 the trial court had made certain observations with respect to the provision made in Section 35 and 54 of the said Act in order to record a finding that mudammal opium was found from the possession of the appellant also. The trial court has also referred to the provisions made in Section 35 and 54 of the said Act. (¶9.) Learned defence counsel has cited a ruling of Hon’ble Supreme Court of India in “Dharampal Singh V. State of Punjab” reported in (2010) 9 SCC page 608 from which learned counsel has cited following paragraphs in support of his case. “In somewhat similar facts this Court had the occasion to consider this question in the case of Madan Lal and Onr. v. State of H.P. MANU/SC/0599/2003: 2003(7) SCC 465, wherein it has been held as follows: 26. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special (^4) Page 2 , moot proposition (^5) Section 54 in The Narcotic Drugs and Psychotropic Substances Act, 1985
[MEMORIAL FOR THE RESPONDENT] Page^14 [ARGUMENTS ADVANCED] Knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 there also presumption is available to be drawn from possession of illicit articles. In the factual scenario of the present case, not only possession but conscious possession has been established. It has not been shown by the accused-appellants that the possession was not conscious in the logical background of Sections 35 and 54 of the Act.” (¶10.) Now in order to appreciate the special burden or the presence of culpable mental state every offence is committed with some intent. There are four stages of commission of offences and are well known by all of us: Intention Preparation Attempt Commission (¶11.) Whenever any member wanted to smoke, all the members went together outside and shared the “joint”. On that occasion, Ravi and Shyam although, refused to smoke directly, they accompanied them.^7 This was the only time when ravi refused to smoke directly .though he joined them later. This show that ravi was comfortable being in the situation and he also had the intention After a few minutes of consuming the brownies, Ravi and Shyam started feeling dizzy; however, they thought it was from dancing. They continued to dance and again after a few minutes they proceeded outside to smoke.^8 This time ravi attempted to smoke and joined them. Even in the case of State of Assam V/s Papuia Hmar and Ors^9 where in the three juvenile were found guilty of offence and sent them to special home. (^7) Page 1 para 4 moot proposition (^8) Page 2 para 5 moot proposition (^9) JJB CASE No. 33/
[MEMORIAL FOR THE RESPONDENT] Page^15 [ARGUMENTS ADVANCED]
B. IS THE TENNUR OF HIS PUNISHMENT JUSTIFIABLE
(¶12.) The NDPS Act, has several sections where the punishment is between 10 to 20 years and also fine ranging from Rs/-1.00 lakh to Rs/-2.00 lakhs in case of ‘contravention in relation to’ poppy straw, cannabis and psychotropic substances involving commercial quantity or for external dealings in certain kinds of narcotic drugs and psychotropic substances. (¶13.) Where as in this case, the juveniles and others were in possession of liquor, “joints” for smoking and 1kg and 250gm of charas which exceecds the contention of commercial quantity^10. (¶14.) In the case of Salil Bali 11 sought to make a distinction in regard to the definition of children as such in Sections 2(k) and 2(l) of the Juvenile Justice (Care and Protection of Children) Act, 2000, and the level of maturity of the child who is capable of understanding the consequences of his actions. He, accordingly, urged that the provisions of Sections 15 and 16 of the Act needed to be reconsidered and appropriate orders were required to be passed in regard to the gravity of punishment in respect of heinous offences committed by children below the age of eighteen years, such as murder, rape, dacoity, etc. Mr. Bali submitted that allowing perpetrators of such crimes to get off with a sentence of three years at the maximum, was not justified and a correctional course was required to be undertaken in that regard. (¶15.) In the present case the appellant is smart and capable of understanding the consequences of his action. He knew that there will be liquor, “joints” for smoking and charas was there in one of their bags which is illegal to possession (¶16.) Under S.20(b)(ii)c^12 possession of drugs exceeding the commercial quantity with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees (^10) Moot propotition (^11) Salil Bali v. Union Of India & Anr on 17 July, 2013 (^12) S.20(b)(ii)c N.D.P.S. Act
[MEMORIAL FOR THE RESPONDENT] Page^17 [ARGUMENTS ADVANCED] be treated as an effort to weaken the justice dispensation system and hence cannot be encouraged. (¶21.) The appellant and others were under possession of liquior and drugs which exceeds the commercial quality of cannabis i.e 1kg and 250gms^14 (¶22.) From above, it appears that for proving a charge u/s 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985. In this case, it is proved that the appellant is accused, in contravention of any provision of the NDPS Act, has possessed commercial quantity of cannabis.
B. When is a child tried as an adult?
(¶23.) The Juvenile Justice Act of 2000 was amended in 2015 with a provision allowing for Children in Conflict with Law^15 (CCL) to be tried as adults under certain circumstances. The Act defines a child as someone who is under age 18. For a CCL, age on the date of the offence is the basis for determining whether he or she was a child or an adult. (¶24.) The amended Act distinguishes children in the age group 16-18 as a category which can be tried as adults if they are alleged to have committed a heinous offence — one that attracts a minimum punishment of seven years. (¶25.) The case^16 , in hand, falls within the category of heinous offence and the petitioner, being more than 16 years of age on the date of commission of offence, is required to be dealt with as per provisions of Section 15^17 of the Act for the purpose of making preliminary assessment. (¶26.) In case of a heinous offence alleged to have been committed by a child, who has completed or is above the age of sixteen years, the Board shall conduct a preliminary (^14) Page 2 moot proposition (^15) Section 2 (l3) of the Juvenile Justice (Care & Protection of Children) Act, 2015 (^16) Sumit (Minor) v. State Of U.P. And Another on 22 November, 2019 (^17) Section 15 in The Juvenile Justice (Care and Protection of Children) Act, 2000
[MEMORIAL FOR THE RESPONDENT] Page^18 [ARGUMENTS ADVANCED] assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence, and may pass an order in accordance with the provisions of sub- Section (3) of Section 1818 The appellant in this case had mental and physical capacity to commit such offence. (¶27.) After a few minutes of consuming the brownies, Ravi and Shyam started feeling dizzy; however, they thought it was from dancing. They continued to dance and again after a few minutes they proceeded outside to smoke.”^19 Appellant felt left out and got into the peer pressure of consuming smoke and drugs and that why he proceeded outside to smoke (¶28.) Section 15^20 of the Act has reduced the age of a child from 18 to 16 years for the purpose of treating a child as an adult for heinous offences, thus proving to be a glaring and unavoidable inconsistency determine the "crime de jour" for which a child above 16 years and below 18 years can potentially be tried as an adult.^21 (¶29.) Jhabua Murder case^22 .—On 1-3-2017, the first case after the amended JJ Act came into effect, two minors — aged 17 and 16 years were awarded life imprisonment and imposed a fine of Rs/- 10,000 each. In this case the accused was treated as an adult In Mohd. Shakil Khan’s case^23 , juvenile’s revision is dismissed as being devoid of merit. Thereafter, in the present case the appellant has committed an heinous crime to consider his as an adult. (¶30.) In view of what has been discussed above, I am of the considered opinion that judgment of conviction and sentences passed by court below does not suffer from any
infirmity of facts or law. It is upheld accordingly. This appeal is dismissed.
(^18) S.18 JJ Act, 2015 (^19) Page 2 para 1 , moot proposition (^20) S.15 JJ Act, 2015 (^21) Handbook for Advocates working with Children in Conflict with Law in India, Nat’l Law School of India University, https:// www.nls.ac.in/ ccl/ publications/handbook.pdf (^22) Jhabua murder case 2017 (^23) Mohd. Shakil Khan (Juvenile) v. State Of U.P. on 8 May, 2017
