A.U.M.P.

NATIONAL MOOT COURT COMPETITION 2018

TEAM CODE: AMCC 13

IN THE HON’BLE SUPREME COURT OF REPUBLIC OF INDUS

SPECIAL LEAVE PETITION (S.L.P. NO. __ / 2018)

ON SUBMISSION TO THE HON’BLE SUPREME COURT OF REPUBLIC OF INDUS UNDER ART. 136 OF THE
CONSTITUTION OF INDUS

IN THE MATTER OF

MASAB KHAN ……………PETITIONER

VS.

STATE OF TROMBAY & ORS. …………RESPONDENTS

WRITTEN SUBMISSIONS FILED ON BEHALF OF RESPONDENTS

Counsels Appearing on Behalf of Respondent/-

MEMORIAL ON BEHALF OF RESPONDENT Page | I

 A.U.M.P. NATIONAL MOOT COURT COMPETITION 2018

TABLE OF CONTENTS
ABBREVIATIONS ............................................................................................................................III
INDEX OF AUTHORITIES................................................................................................................IV
STATEMENT OF JURISDICTION...................................................................................................VIII
STATEMENT OF FACTS..................................................................................................................IX
STATEMENT OF ISSUES .................................................................................................................XI
SUMMARY OF PLEADINGS............................................................................................................XII
ARGUMENTS ADVANCED...........................................................................................................1-20
1. THE COURTS IN INDUS HAVE THE JURISDICTION TO TRY THE PETITIONER WHO IS A

PANJIKSISTAN NATIONAL AND THE SPECIAL LEAVE PETITION UNDER ARTICLE 136 OF

THE CONSTITUTION IS NOT MAINTAINABLE ……………………………………..…….1-4

1.1.THE ACCUSED WAS APPREHENDED IN THE TERRITORY OF INDUS AND NOT THAT OF

PANJIKSISTAN…………………………………………………....……….....................1
1.2.APPLICATION OF THE TERRITORIAL PRINCIPLE...............................................................3
1.3.MAINTAINABLE OF SPECIAL LEAVE PETITION………………………………..……….4
2. THE ARREST AND DETENTION BY THE INDUS ARMY IS LEGAL AND IT WILL NOT VITIATE
SUBSEQUENT PROCEEDINGS…………………………………………………………….5-8
2.1.THE ARREST DONE BY THE ARMY OF REPUBLIC OF INDUS IS IN ACCORDANCE WITH
LAW…………………………………..……………………………………………......5

2.2.THE DETENTION OF THE ACCUSED BY THE INDUS ARMY IS ALSO VALID…….….………6

2.3.THE QUESTION OF ILLEGAL ARREST OR DETENTION DOES NOT VITIATE THE

PROCEEDINGS…………………………………………………………………………..8

3. THE ACCUSED CANNOT BE ENLARGED ON BAIL ON THE GROUND THAT THE CHARGE

SHEET WAS NOT FILED WITHIN THE STATUTORY PERIOD ……….................................9-10

3.1.THE STATUTORY OF NINETY DAYS HAS NOT YET BEEN COMPLETED……………………9

3.2.THE BAIL CAN BE REJECTED IN THE CURRENT SITUATION OF THE CASE ………………10
4. THE ACCUSED WAS NOT DEPRIVED OF HIS CONSULAR AND COUNSEL RIGHTS CAUSING

PREJUDICE IN DEFENDING HIS CASE ? ……………….…………………....................12-17

4.1. ENGAGEMENT OF COUNSEL DURING PRE-TRIAL PERIOD IS NOT MANDATORY……..….12

4.2. THAT HE WAS NOT GIVEN CONSULAR ACCESS, WHICH IN CONTRAVENTION OF VIENNA

A MEMORIAL ON BEHALF OF THE RESPONDENT Page | I

 A.U.M.P. NATIONAL MOOT COURT COMPETITION 2018

CONVENTION ON CONSULAR RELATIONS. …………….….………………………..13

4.3.THE ACCUSED CANNOT BE PROVIDED WITH A COUNSEL FROM PANJIKSISTAN.............16
4.4.PROVIDING AN INDUS COUNSEL TO THE ACCUSED WON’T RESULT IN PREJUDICE……17
5. THE ACCUSED WILL NOT BE DEPRIVED OF FAIR TRIAL IN INDUS ESPECIALLY

CONSIDERING ADVERSE PUBLICITY IN THE MEDIA....................................................19-20

5.1.ADVERSE PUBLICITY IN THE MEDIA DOES NOT AFFECT THE FAIR TRIAL OF

ACCUSED………………………………………………………………………….19

5.2.JUDGES ARE NOT INFLUENCED IN ANY MANNER EITHER BY THE PROPAGANDA OR

ADVERSE PUBLICITY………………………………………………………..............19

PRAYER...................................................................................................................................21

A MEMORIAL ON BEHALF OF THE RESPONDENT Page | II

 A.U.M.P. NATIONAL MOOT COURT COMPETITION 2018

ABBREVIATIONS
S.NO ABBREVIATIONS FULL FORMS
1. Anr Another
2. Art. Article
3. Bom Bombay
4. Bom (Cr) Bombay Cases Reporter (Criminal)
5. BOMLR Bombay Law Review
6. MUM Mumbai
7. S. Section
8. CrLJ Criminal Law Journal
9. CrPC Criminal Procedure Code
10. DEL/DE Delhi
11. GUJ Gujarat
12. HC High Court
13. RAJ Rajasthan
14. CrPC Code of Criminal Procedure
15. IPC Indus Penal Code
16. UAPA Unlawful Activities Prevention Act
17. Mad Edition
18. Ed. Notes of Cases
19. MH Maharashtra
20. Ors Others
21. Ori/OCR Orissa
22. ROI Republic of Indus
23. POPP Pajkistan Occupied Pammu & Pashmir
24. SC Supreme Court
25. SCC Supreme Court Cases
26. SCR Supreme Court Reports
27. UOI Union Of India
28. v. Versus

A MEMORIAL ON BEHALF OF THE RESPONDENT Page | III

 A.U.M.P. NATIONAL MOOT COURT COMPETITION 2018

INDEX OF AUTHORITIES

LIST OF CASES CITED

S.No Name of the case & Citation Page. No
1. A.K. Balaji v. Government of India and others, AIR 2012 MAD 124 16
2. A.K. Goplan v. State of Madras, AIR 1950 SC 27. 7
3. Akhlak And Ors. v. The State Of M.P, 2000 CriLJ 4899. 13
4. Aloke Nath Dutta and Ors. v. State of West Bengal, (2007) 12 SCC 230. 12
5. Anukul Chandra Pradhan v. Union of India, 1996(6) SCC 354. 19
6. Association of Indian Lawyers v. M/s. London Court of International 16
Arbitration (LCIA) and ors, Civil Appeal No.7170 of 2015.
7. Bar Council of India v. A.K. Balaji and Ors, Civil Appeal Nos.7875-7879 of 17
2015.
8. Basharat Ahmad Mir v. State of Jammu and Kashmir and another, 2018 Indlaw 7
JK 400.
9. Chaganti Satyanarayan & Ors v. State of Andhra Pradesh, AIR 1986 SC 2130. 10
10. Chandi Prasad v. Bihar, AIR 1961 SC 1708. 4
11. Durel Behera v. Suratha Behera , 1986 II OLR 536 8
12. Frisbie v. Collins, 342 U.S. 519 (1952). 2
13. George Verghese v. Bank of Cochin, 1980 (2) SCC 360. 14
14. Holmes v. Bangladesh Binani Corporation, [1989] 1 AC 1112, 1137; 87 ILR, 3
pp. 365, 380–1.
15. Exparte Pinochet (No.3) [2000] 1 AC 147, 188; 119 ILR. 3
16. Hussainara Khatoon v. State of Bihar (1980) SCC (Cri) 35. 15
17. In Re: The Berubari Union And exchange of Enclaves v. Reference Under 2
Article 143(1) Of the Constitution Of India, AIR 1960 SC 845.
18. Jamal Mirza v. State, ILR 2012 II Delhi 711. 14
19. Jaymal Thakore v. Charity Commissioner, Gujarat State and ors, AIR 2001 16
Guj 279.
20. Khatri and Ors. v. State of Bihar, (1981) SCC (Cri) 235. 15
21. Kubic Darusz v. Union of India, (1990) 1 SCC 568, 582: 1990 SCC (Cri.) 227: 6
AIR 1990 SC605.
22. Lee Kun Hee and Ors. v. State of U.P. and Ors, AIR 2012 SC 1007. 3
23. Mahesh Chand and Etc v. State of Rajasthan and Etc, AIR 1986 RAJ 58. 9
24. Maneka Gandhi v. Union of India, [1978] 2 SCR 621. 15
25. Mobarik Ali Ahmed v. The State Of Bombay, AIR 1957 SC 857. 3
26. Mohd. Ajmal Amir Kasab v. State of Maharashtra, (2012) 9 SCC 1. 13
27. Mushtaq Moosa Tarani v. Government of India and Ors, 19
MANU/MH/1614/2005.

A MEMORIAL ON BEHALF OF THE RESPONDENT Page | IV

 A.U.M.P. NATIONAL MOOT COURT COMPETITION 2018

28. Paritam Singh v. Punjab, AIR 1950 SC 169. 4

29. People’s Union for Civil Liberties v. Union of India, (1997) 3 SCC 433. 14
30. R v. Abu Hamza, [2006] EWCA Crim 2918. 19
31. R. Balkrishna Pillai v. State of Kerala , (2000) 7 SCC 129. 19
32. Rabindra Rai v. State of Bihar, 1984 CRLJ 1412. 9
33. Ram Awadh v. State of U.P, 1999 Cri.L.J. 4083. 18
34. Ram Govind Upadhyay v. Sudarshan Singh, AIR 2002 SC 1475; 12
35. Ranchod Mathur Wasawa v. State of Gujarat, AIR 1974 SC 1143. 18
36. Saptawna v. The State of Assam, MANU/SC/0737/1971. 8
37. Shri Bacha Bora v. State of Assam and Others, 1991 CRLJ 2782. 8
38. Sri Bhubaneswar Singh Deo v. State of Orissa, 2004 CRLJ 4377. 19
39. State Ex Rel. Farrington v. Rigg Annotate this Case 259 Minn. 483 (1961) 8
40. State of Maharashtra and another v. Mohammed Ajmal Mohammad Amir 18
Kasab and others, 2011 Indlaw MUM 91.
41. State of Maharasthra v. Sitaram Papat Vetal, AIR 20004 SC 4258. 12
42. State of Punjab v. Siikhpal Singh, (1990) 1 SCC 35, 45: 1990 SSC (Cri) 1: AIR 6
1990 SC 231: 1990 Cri LJ 584.
43. State of Rajastan, Jaipur v. Balchand, AIR 1977 SC 2447. 11
44. State of West Bengal v. Kesoram Industries, (2004) 10 SCC 201. 13
45. State v. Mohd. Afzal and Ors, MANU/DE/1026/2003. 20
46. State v. Navjot Sandhu, (2005)11 SCC 600. 20
47. State v. P Sugathan, 1988 Cr.LJ 1036 (Ker). 12
48. Suk Das & Anr v. Union Territory of Arunachal, AIR 1986 SC 991. 13
49. Sunil Kumar Sammaddar v. Superintendent of Hoagly Jail , 75 Cal WN 151. 7
50. The Chairman, Railway Board & Ors v. Mrs. Chandrima Das, AIR 2000 SC 15
988.
51. The Secretary to Government, Public (Law and Order-F) and another v. Nabila 7
and another, (2015) 12 SCC 127.
52. Tirupati Balaji Developers Pvt. Ltd. v. State of Bihar, AIR 2004 SC 2351. 4
53. United States ex el Lujan v. Gengler, 510 F.2d 62 (1975). 2
54. United States v. Alvarez-Machain, 504 U.S. 655 (1992); Attorney-General v. 2
Eichmann, 36 I.L.R. 5 (1961).
55. Utchala Jayarami Reddy v. State Of Andhra Pradesh, 1993 CriLJ 3827. 8

CONSTITUTIONS
1. The Constitution of India, 1950.
2. The Constitution of Jammu and Kashmir, 1956.

A MEMORIAL ON BEHALF OF THE RESPONDENT Page | V

 A.U.M.P. NATIONAL MOOT COURT COMPETITION 2018

STATUTES
1. Armed Forces (Jammu and Kashmir) Special Powers Act, 1990, No. 21, Acts of Jammu
& Kashmir
2. Code of Criminal Procedure, 1973, No.2, Acts of Parliament, 1972 (India), § 167(2) a.
3. Passport (Entry into Indus) Act, 1920, No. 34, Act of Parliament, 1920 (India).
4. Prevention of Damage to Public Property Act, 1984, No. 3, Act of Parliament, 1984
(India).
5. Railways Act, 1989, No. 24, Act of Parliament, 1989 (India).
6. The Advocates Act, 1961, No. 25, Acts of Parliament, 1961 (India).
7. The Arms Act, 1959, No. 54, Act of Parliament, 1959 (India).
8. The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860 (India).
9. Unlawful Activities (Prevention) Act, 1967, No.37, Acts of Parliament, 1967 (India).

LAW COMMISSION REPORTS

1. Law Commission Report, 268.

2. Law Commission Report, 266.

INTERNATIONAL AUTHORITIES
1. United Nations Charter.
2. Vienna Convection on Consular Relations, 1963.

BOOKS REFERRED
1. Glanville Williams, Textbook of Criminal Law, (2nd Edition, 1999).
2. K.D. Gaur, A Textbook on the Indian Penal Code, (4th Edition, 2012).
3. K.D. Gaur, Criminal Law: Cases and materials, (6th Edition, 2009).
4. Asim Pandya, Law of Bail: Practice and Procedure, (1st Edition, 2013).
5. Ratanlal & Dhirajlal’s, The Indian Penal Code, (35th Edition, 2017)

A MEMORIAL ON BEHALF OF THE RESPONDENT Page | VI

 A.U.M.P. NATIONAL MOOT COURT COMPETITION 2018

6. Ratanlal and Dhirajlal, The Law of Evidence, (24th Edition, 2011)

7. Sarkar S. C. & Prabhas C. Sarkar, Law Of Criminal Procedure, (8th Edition, 2004).
8. Sarkar SC, Code of Criminal Procedure Vol.1 & 2, (10th Edition, 2012).
9. Corpus Juris Secundum, Volume 8.

ARTICLES REFERRED
1. Gaibulloev, Khusrav, and Todd Sandler. “Determinants of the Demise of Terrorist
Organizations.” Southern Economic Journal, vol. 79, no. 4, 2013, pp. 774–792. JSTOR,
JSTOR.
2. Abrahms, Max. “What Terrorists Really Want: Terrorist Motives and Counterterrorism
Strategy.” International Security, vol. 32, no. 4, 2008, pp. 78–105.
3. Malvina Halberstam, Terrorism, 9 Geo. Mason U. L. Rev. 12 (1986).
4. Sundaresh Menon, International Terrorism and Human Rights, 4 AsianJIL 1 (2014).
5. Amos N. Guiora, Where Are Terrorists to Be Tried: A Comparative Analysis of Rights
Granted to Suspected Terrorists, 56 Cath. U. L. Rev. 805 (2007).
6. John Quigley, Government Vigilantes as Large: The Danger to Human Rights from
Kidnapping of Suspected Terrorists, 10 Hum. Rts. Q. 193 (1988).
7. Brian S. Carter-Stieglitz, Trying Terrorists, 34 Wm. Mitchell L. Rev. 5123 (2008).

ONLINE RESOURCES
1. HeinOnline, https://home.heinonline.org/ (last seen on August 26, 2018).
2. Lexis India, https://www.lexisnexis.com/in/legal/ (last seen on August 26, 2018).
3. Manupatra, http://www.manupatrafast.com (last seen on August 26, 2018).
4. SCC Online, http://www.scconline.com/ (last seen on August 26, 2018).
5. Westlaw India, http://www.westlawindia.com/ (last seen on August 26, 2018).

A MEMORIAL ON BEHALF OF THE RESPONDENT Page | VII

 A.U.M.P. NATIONAL MOOT COURT COMPETITION 2018

STATEMENT OF JURISDICTION

The Respondent humbly submits before the Hon’ble Supreme Court of the Republic of
Indus, the memorandum for the Respondent in an appeal filed by Petitioner under Art. 136 of the
constitution of Indus, 1950. However, the Respondent seeks permission of this Hon’ble Court to
contend the maintainability of this Special Leave Petition.
The present memorandum sets forth the facts, contentions and arguments in the present case.

A MEMORIAL ON BEHALF OF THE RESPONDENT Page | VIII

 A.U.M.P. NATIONAL MOOT COURT COMPETITION 2018

STATEMENT OF FACTS

BACKGROUND

Indus, officially known as the Republic of Indus, is located in South Central Asia and
shares land borders with Panjiksistan to the West. Panjiksistan got separated from Indus in 1947
and since then relations between these two countries have been strained. In 1948, Panjiksistan
attacked Indus and occupied some part of the State of Pammu and Pashmir, which was an
integral part of Indus. Pakistan got defeated in its various misadventures towards Indus. It started
to establish launch pads to strike terror attacks in Indus and started harbouring and training
terrorists in the occupied territory of State of Pammu and Pashmir where they carry out terrorist
attacks and return to Panjiksistan in case they survive.

THE MASSACRE

On 23rd November 2015, twelve Lashkar-E-Khaiba terrorists trained by Panjiksistan

military and spy agency ISO (Inter-Services Operations) came to Trombay via sea and on 26th of
November attacked several important places killing more than 180 people including 20 police
officers and 4 commandos. 410 people were severely injured. In the counter-attack 5 out of 7
terrorists were killed and the remaining 2 escaped back to Panjiksistan. The terrorist attack was a
professional commando operation of Panjiksistan military. And also, after this incident, the state-
sponsored Panjiksistan trained terrorists started attacking Military installations and Units killing
soldiers.

THE SURGICAL STRIKE

On the ground of these increased attacks, the Indus government decided to destroy launch
pads and terrorist hideouts and training areas in Panjiksistan and Panjiksistan occupied Pammu
and Pashmir. So a surgical strike was carried out on 7th October 2016 in Panjiksistan occupied
Pammu and Pashmir and the launch pads and hideouts of the terrorists were destroyed. One
terrorist, Masab Khan, (hereinafter Petitioner ) was apprehended by the Army in the surgical
strike who was in the custody of the Army for 30 days. During this period Army gathered vital
information as to who was the mastermind behind the attack and who provided training and

A MEMORIAL ON BEHALF OF THE RESPONDENT Page | IX

 A.U.M.P. NATIONAL MOOT COURT COMPETITION 2018

financial support to them. The investigation also revealed that the apprehended terrorist was the
mastermind behind the attack on Indus on 26 November 2015. He also made a confessional
statement before the magistrate regarding this.

LOWER COURT PROCEEDINGS

After 30 days he was handed over to the Anti-Terrorism Squad (ATS) which is
specifically constituted to counter terrorism for further proceedings. The terrorist was into the
custody of ATS for 70 days. The accused moved to the Court of competent jurisdiction for grant
of bail u/s 167(2) of Cr.P.C which was rejected. After this, the magistrate committed the case to
the Court of Session of Competent Jurisdiction where he was charged for various offences. All
the issues raised by him were rejected by the Lower Court and he filed an appeal before the High
Court of Trombay challenging the dismissal of the contentions of the accused. The was
dismissed by the High Court. Begin aggrieved by the decision of the High Court of Trombay the
Petitioner has approached the Hon’ble Supreme Court of Republic of Indus through a Special
Leave Petition.

A MEMORIAL ON BEHALF OF THE RESPONDENT Page | X

 A.U.M.P. NATIONAL MOOT COURT COMPETITION 2018

STATEMENT OF ISSUES

I
WHETHER THE COURTS IN INDUS HAVE THE JURISDICTION TO TRY THE PETITIONER WHO IS A
PANJIKSISTAN NATIONAL AND THE SPECIAL LEAVE PETITION UNDER ARTICLE 136 OF THE
CONSTITUTION IS MAINTAINABLE?

II
WHETHER THE ARREST AND DETENTION BY THE INDUS ARMY IS LEGAL AND IT WILL NOT
VITIATE SUBSEQUENT PROCEEDINGS?

III
WHETHER THE ACCUSED CAN BE ENLARGED ON BAIL ON THE GROUND THAT THE CHARGE
SHEET WAS NOT FILED WITHIN THE STATUTORY PERIOD ?

IV
WHETHER THE ACCUSED WAS DEPRIVED OF HIS CONSULAR AND COUNSEL RIGHTS CAUSING
PREJUDICE IN DEFENDING HIS CASE ?

V
WHETHER THE ACCUSED HAS BEEN DEPRIVED OF HIS RIGHT TO FAIR TRIAL IN INDUS
ESPECIALLY CONSIDERING ADVERSE PUBLICITY IN THE MEDIA ?

A MEMORIAL ON BEHALF OF THE RESPONDENT Page | XI

 A.U.M.P. NATIONAL MOOT COURT COMPETITION 2018

SUMMARY OF PLEADINGS

[1]. THE COURTS IN INDUS HAVE THE JURISDICTION TO TRY THE PETITIONER WHO IS A
PANJIKSISTAN NATIONAL AND THE SPECIAL LEAVE PETITION UNDER ARTICLE 136 OF THE
CONSTITUTION IS NOT MAINTAINABLE
The Petitioner was apprehended in the territory of Indus and not that of Panjiksistan. If
we consider part-II of the Constitution of the Pammu and Pashmir, it clearly says that the State of
Pammu and Pashmir is and shall be an integral part of the Union of Indus. Which makes the
Panjiksistan occupied Pammu and Pashmir a part of Indus only. Applying the Territorial
principle the State of Indus will have jurisdiction to try the Petitioner even though he is a
Panjiksistan national. The Petition filed under Art. 136 of the Indus Constitution is not
maintainable since the necessary requirements required to be met for the court to allow a petition
under Art. 136 are not met in the current case. Therefore the petition is not maintainable and has
to be dismissed in limine
[2]. THE ARREST AND DETENTION BY THE INDUS ARMY IS LEGAL AND IT WILL NOT VITIATE
SUBSEQUENT PROCEEDINGS

The Arrest done by the Indus army is in accordance with law and the detention done by
the Army and handing over of the Petitioner to the Anti-Terrorism Squad is also legal since the
army has both the power to arrest and detain the Petitioner. It is also pertinent to submit that even
if the arrest and detention by the Indus Army is illegal it won’t vitiate subsequent proceedings

[3]. THE ACCUSED CANNOT BE ENLARGED ON BAIL ON THE GROUND THAT THE CHARGE SHEET
WAS NOT FILED WITHIN THE STATUTORY PERIOD

The Respondent most humbly submits that the contention of the Petitioner that the charge sheet
was not filed within the statutory period is not valid as the Petitioner was in the custody of the
Anti-Terrorism Squad for only 70 days. The period of 30 days during which the Petitioner was
detained with the Army cannot be considered as detention under 167 of Cr.P.C or 43D(2) of
Unlawful Activities (Prevention) Act, 1967

A MEMORIAL ON BEHALF OF THE RESPONDENT Page | XII

 A.U.M.P. NATIONAL MOOT COURT COMPETITION 2018

[4]. THE ACCUSED WAS NOT DEPRIVED OF HIS CONSULAR AND COUNSEL RIGHTS CAUSING
PREJUDICE IN DEFENDING HIS CASE

Engagement of Counsel during the pre-trial period is not mandatory. Vienna Convention
on Consular Relations is not binding since there is no municipal enactment in Indus. The
Petitioner cannot be provided with a counsel from Panjiksistan. Providing an Indus counsel to
the Petitioner won’t result in prejudice in preparation of his defence.

[5]. THE ACCUSED WILL BE NOT DEPRIVED OF FAIR TRIAL IN INDUS ESPECIALLY CONSIDERING
ADVERSE PUBLICITY IN THE MEDIA

The Courts and the judicial system in the country aim for providing justice to the
individuals. The principles of natural justice are followed. The judges are of such standard that
they won’t show any personal bias and hear the case without any partiality. Even if there is
adverse publicity by the media, it won’t affect the judges as they deal the case basing on its
merits only. Hence it can be said that the Petitioner will not be deprived of fair trial in Indus.

A MEMORIAL ON BEHALF OF THE RESPONDENT Page | XIII

 A.U.M.P. NATIONAL MOOT COURT COMPETITION 2018

ARGUMENTS ADVANCED
1. THE COURTS IN INDUS HAVE THE JURISDICTION TO TRY THE PETITIONER WHO IS A
PANJIKSISTAN NATIONAL AND THE SPECIAL LEAVE PETITION UNDER ARTICLE 136 OF
THE CONSTITUTION IS NOT MAINTAINABLE

The counsel for Respondents humbly submits that the Courts in Indus have the
jurisdiction to try the Petitioner because he was apprehended not from the territory of
Panjiksistan but from Panjiksistan occupied Pammu and Pashmir which is a part of the Indus
territory [1.1]. And also the offences committed by the Petitioner took place in the country of
Indus which gives the courts of Indus the jurisdiction to try the Petitioner. [1.2]. The Petitioner
doesn't enjoy any right to approach this Hon'ble High Court of Trombay for appealing against the
bail rejection order of Lower Court. [1.3].

1.1.THE PETITIONER WAS APPREHENDED IN THE TERRITORY OF INDUS AND NOT THAT OF

PANJIKSISTAN.
1.1.1. The counsel for Respondents humbly submits that the law of the land is the
Constitution. The Constitution of Indus states that the States and the territories thereof shall be as
specified in the First Schedule.1 There in the first schedule, the territory of Pammu and Pashmir
is specified as the territory which immediately before the commencement of this Constitution are
comprised in the Indian State of Pammu and Pashmir. 2 Moreover, the Constitution (Seventh
Amendment) Act of India, 1956, clearly says that for Pammu and Pashmir the territory which
immediately before the Kashmir commencement of this Constitution was comprised in the
Indian State of Pammu and Pashmir is its territory.3
1.1.2. It is humbly submitted that even if we consider part-II of the Constitution of the
Pammu and Pashmir,4 it clearly says that the State of and Kashmir is and shall be an integral part
of the Union of India5. It states that the territory of the State of Pammu and Pashmir shall

1
India Const. art. 1, cl. 2.
2
India Const. First schedule.
3
The Constitution (Seventh Amendment) Act, 1956.
4
JAMMU AND KASHMIR Const. 1956.
5
JAMMU AND KASHMIR Const. art. 3.

A MEMORIAL ON BEHALF OF THE RESPONDENT Page | 1

 A.U.M.P. NATIONAL MOOT COURT COMPETITION 2018

comprise all the territories which on the fifteenth day of August 1947, were under the
sovereignty or suzerainty of the Ruler of the State6 which is the whole of Pammu and Pashmir
including the territory that has been occupied by Panjiksistan in the year 1948.
1.1.3. It is humbly submitted that Panjiksistan, in the year 1948 attacked the country of Indus
and occupied some part of the State of Pammu and Pashmir. 7 This occupation is illegal as the
territory of a state shall not be the object of acquisition by another state resulting from the threat
or use of force.8 No territorial acquisition resulting from the threat or use of force shall be
recognised as legal.9 Article 2(4) of the United Nations Charter prohibits the member states from
the threat or use of force against the territorial integrity. 10 The principle of territorial integrity
protects the sovereign state against all sorts of violations of its territory. It renders illegal acts of
direct physical effect in the territory of another state as well as sovereign acts that one state
carries out on the territory of another state.11
1.1.4. Giving away the Panjiksistan occupied Pammu and Pashmir to Panjiksistan would
amount to cession of a part of the territory of Indus in favour of Panjiksistan, and so its
implementation would naturally involve the alteration of the content of and the consequent
amendment of Art.1 and of the relevant part of the First Schdule to the Constitution. 12 In this
connection, such cession can only be done if the parliament passes a law on the lines of Article
368. In the current case, any such amendment as per article 368 pertaining to cession of territory
to Panjiksistan did not happen. Even if it is the case that he has been apprehended from the
territory of Panjiksistan, the principle of Male Captus Bene Detentus will come into effect.13

6
JAMMU AND KASHMIR Const. art. 4 .
7
AUMP National Moot Court Competition, Moot Proposition, 2.
8
James Crawford, Brownlie’s Principles of Public International Law, 243, 8th Ed.
9
GA Res 2625(XXV), 24 October 1970.
10
United Nations Charter, art. 2, Cl. (4).
11
A. Peters, The Principle of Uti Possidetis Juris – How Relevant Is It for the Issue of Secession?, in: C. Walter/A.
von Ungern-Sternberg/ K. Abushov, Self-Determination and Secession in International Law, 2014, 104 et seq.
12
In Re: The Berubari Union Andexchange Of Enclaves v. Reference Under Article 143(1) Of the Constitution Of
India, AIR 1960 SC 845.
13
United States v. Alvarez-Machain, 504 U.S. 655 (1992); Attorney-General v. Eichmann, 36 I.L.R. 5 (1961);
Frisbie v. Collins, 342 U.S. 519 (1952); United States ex el Lujan v. Gengler, 510 F.2d 62 (1975).

A MEMORIAL ON BEHALF OF THE RESPONDENT Page | 2

 A.U.M.P. NATIONAL MOOT COURT COMPETITION 2018

1.1.5. Therefore it can be said that the area of Panjiksistan occupied Pammu and Pashmir is
not a territory of Panjiksistan as stated by the Petitioner in his contentions. The forceful
occupation of the area by Panjiksistan won’t render the area as a territory of Panjiksistan. Hence
the area of Panjiksistan occupied Pammu and Pashmir is not a territory of Panjiksistan as stated
by the Petitioner in his contentions. It is well within the territory of Indus only.

1.2. APPLICATION OF THE TERRITORIAL PRINCIPLE

1.2.1. The counsel for Respondents most humbly submits that the principle that the court of
the place where the crime is committed may exercise jurisdiction is universally recognized. 14 The
acts committed by the Petitioner were covered under Indus Penal Code, 1860, Arms Act, 1959,
Unlawful Activities (Prevention) Act, 1967, Passport (Entry into Indus) Act, 1920, Prevention of
Damage to Public Property Act, 1984 and Railways Act, 1989.
1.2.2. It is humbly submitted that all the crimes committed (or alleged to have been
committed) within the territorial jurisdiction of a state may come before the municipal courts and
the Petitioner if convicted may be sentenced.15 This is so even where the offenders are foreign
citizens.16 Further, there is a presumption that legislation applies within the territory of the state
concerned and not outside.17 This emphasizes the principle that the exercise of criminal
jurisdiction depends on the locality of the offence and not on the nationality of the alleged
offender.18
1.2.3. It is humbly submitted that even the Indus Penal Code states that every person shall
be liable to punishment under this Code and not otherwise for every act or omission contrary to
the provisions thereof, of which he shall be guilty within Indus. 19 Every person is made liable to
punishment, without distinction of nation, rank, caste or creed, provided the offence with which

14
James Crawford, Brownlie’s Principles of Public International Law, 458 ,8th ed.
15
Malcom N. Shaw, International Law, 653, 6th ed.
16
Holmes v. Bangladesh Binani Corporation, [1989] 1 AC 1112, 1137; 87 ILR, pp. 365, 380–1, per Lord Griffiths
and Lord Browne-Wilkinson in Exparte Pinochet (No.3) [2000] 1 AC 147, 188; 119 ILR, Pg. 139.
17
F. Bennion, Statutory Interpretation, 282,4th ed. 2002.
18
Mobarik Ali Ahmed v. The State Of Bombay, AIR 1957 SC 857.
19
The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860 (India), § 2; Lee Kun Hee and Ors. v. State of
U.P. and Ors, AIR 2012 SC 1007.

A MEMORIAL ON BEHALF OF THE RESPONDENT Page | 3

 A.U.M.P. NATIONAL MOOT COURT COMPETITION 2018

he is charged has been committed in some part of Indus. 20

Based on the aforesaid legal and factual position, it was sought to be emphasized, the
accused was charged for various offences under Indus Penal Code, 1860, Arms Act, 1959,
Unlawful Activities (Prevention) Act, 1967, Passport (Entry into Indus) Act, 1920, Prevention of
Damage to Public Property Act, 1984 and Railways Act, 1989 within the territorial jurisdiction
of Indus.21So the accused can be blamed of being guilty of an act “within Indus”, and as such,
can be proceeded against in a Court of Indus for facing prosecution under the provisions of the
Indus Penal Code.

1.3 SPECIAL LEAVE PETITION IS NOT MAINTAINABLE

1.3.1. It is submitted that the Special Leave Petition should only be granted under special
circumstances where gross miscarriage of justice is purported to be done. The Court should grant
special leave to appeal only in those cases where special circumstances existed 22. article 136 may
be involved only when (a) Substantial or grave injustice has been done, or (b) Exceptional or
special circumstances exist in the case 23.

1.3.2. It is submitted that the counsel Article 136 is an “extraordinary jurisdiction” vested by
the Constitution in the Supreme Court with implicit trust and faith, and extraordinary care
and caution has to be observed in the exercise of this jurisdiction24. It does not confer a right of
appeal on a party but vests a vast discretion in the Supreme Court meant to be exercised on the
considerations of justice, call of duty and eradicating injustice. 25

In the present case, the prosecution has tried the accused in accordance with law and also
Hon’ble High Court has already decided the case on merits. There was no miscarriage of justice.
There was no special circumstance existing in this case. Hence this petition is vexatious. Hence,
this Special Leave Petition is liable to be dismissed in limine.

20
Ratanlal and Dhirajlal, The Indus Penal Code, 3,35th Ed.
21
AUMP National Moot Court Competition, Moot Proposition, 4.
22
Paritam Singh v. Punjab, AIR 1950 SC 169.
23
Chandi Prasad v. Bihar, AIR 1961 SC 1708.
24
Tirupati Balaji Developers Pvt. Ltd. v. State of Bihar, AIR 2004 SC 2351.
25
Id.

A MEMORIAL ON BEHALF OF THE RESPONDENT Page | 4

 A.U.M.P. NATIONAL MOOT COURT COMPETITION 2018

2. THE ARREST AND DETENTION BY THE INDUS ARMY IS LEGAL AND IT WILL NOT VITIATE
SUBSEQUENT PROCEEDINGS

It is humbly submitted that the arrest done by the Indus army is in accordance with law
[2.1]. and the detention by the Army and handing over of the Petitioner to the Anti-Terrorism
Squad is also legal. [2.2]. It is also pertinent to submit that even if the arrest and detention by the
Indus Army are illegal it won’t vitiate subsequent proceedings [2.3].

2.1. THE ARREST DONE BY THE ARMY OF REPUBLIC OF INDUS IS IN ACCORDANCE WITH LAW:-
2.1.1 It is humbly submitted that the Indus Army has the power to arrest the accused
under The Armed Forces (Jammu And Kashmir) Special Powers Act, 1990. 26 Section 4C of the
Armed forces (Jammu and Kashmir) special powers act, 1990 lay downs procedure as follows:-
Special powers of the armed forces.—Any commissioned officer, warrant officer, non-
commissioned officer or any other person of equivalent rank in the armed forces may, in a
disturbed area, arrest, without warrant, any person who has committed a cognizable offence or
against whom a reasonable suspicion exists that he has committed or is about to commit a
cognizable offence and may use such force as may be necessary to effect the arrest.
2.1.2 It is most respectfully submitted that the above provision authorizes the Indus
army to arrest even without warrant towards any person who has committed a cognizable offence
or against whom a reasonable suspicion exists that he has committed or is about to commit a
cognizable offence and may use such force as may be necessary to effect the arrest. Section 7 of
the Act states that no prosecution, suit or other legal proceeding shall be instituted against any
person in respect of anything done or purported to be done in exercise of the powers conferred
by this Act. Therefore it gives protection to those persons who are acting in good faith under this
Act.27 It is submitted that the Arrest can also be done under the unlawful activities (prevention)
act, 1967, where Section 43A empowers the authority to make an arrest for an offence
committed under the Unlawful Activities (Prevention) Act, 1967. 28
Power to arrest, search, etc.—Any officer of the Designated Authority empowered in
this behalf, by general or special order of the Central Government or the State Government, as

26
Armed Forces (Jammu and Kashmir) Special Powers Act, 1990, No. 21, Acts of Jammu & Kashmir § 4c.
27
Armed Forces (Jammu and Kashmir) Special Powers Act, 1990, No. 21, Acts of Jammu & Kashmir, 1990, § 7.
28
Unlawful Activities (Prevention) Act, 1967, No.37, Acts of Parliament, 1967 (India), § 43A.

A MEMORIAL ON BEHALF OF THE RESPONDENT Page | 5

 A.U.M.P. NATIONAL MOOT COURT COMPETITION 2018

the case may be, knowing of a design to commit any offence under this Act or has reason to
believe from personal knowledge or information given by any person and taken in writing that
any person has committed an offence punishable under this Act or from any document, article or
any other thing which may furnish evidence of the commission of such offence or from any
illegally acquired property or any document or other article which may furnish evidence of
holding any illegally acquired property which is liable for seizure or freezing or forfeiture under
this Chapter is kept or concealed in any building, conveyance or place, may authorize any
officer subordinate to him to arrest such a person or search such building, conveyance or place
whether by day or by night or himself arrest such a person or search a such building,
conveyance or place.
Hence, it is clear that Arrest done by the Indus army is in accordance with law basing on
the above provisions. So, the arrest by the army is valid.

2.2 THE DETENTION OF THE PETITIONER BY THE INDUS ARMY IS ALSO VALID:-
2.2.1 It is submitted that the Indus Constitution provides the clause that a person may
be detained for a period longer than three months under any law providing for preventive
detention. So, the army has acted in the procedure established by the law. The Army of the Indus
is empowered to detain.29
2.2.2 Preventive detention is devised to afford protection to society. The object is not to
punish a man for having done something but to intercept before he does it and to prevent him
from so doing.30 A preventive detention “is not punitive but precautionary measure”. The object
is not to punish a man for having done something but to intercept him before he does it and to
prevent him from doing it. In case of punitive detention to the person concerned is detained by
way of punishment after being found guilty of wrongdoing where he has the fullest opportunity
to defend himself, while preventive detention is not by way of punishment at all, but it is
intended to prevent a person from indulging in any conduct injurious to the society. 31
2.2.3. On examining these provisions of Article 22, we find that Clauses (1) and (2) give
three very valuable rights to detenus (other than those detained under the law of PD), namely: (i)
29
Jammu & Kashmir Public Safety Act, 1978, No. 4, Act of Jammu & Kashmir, 1978, § 8.
30
State of Punjab v. Siikhpal Singh, (1990) 1 SCC 35, 45: 1990 SSC (Cri) 1: AIR 1990 SC 231: 1990 Cri LJ 584.
31
Kubic Darusz v. Union of India, (1990) 1 SCC 568, 582: 1990 SCC (Cri.) 227: AIR 1990 SC605.

A MEMORIAL ON BEHALF OF THE RESPONDENT Page | 6

 A.U.M.P. NATIONAL MOOT COURT COMPETITION 2018

Right of being informed, as soon as may be, of the grounds of arrest; (ii) Right to consult and be
defended by a legal practitioner of his choice; (iii) Production before the nearest magistrate
within 24 hours of such arrest. But these rights are exempted to the enemy alien 32, who the
accused in the current case is.
2.2.4. Section 8 of Jammu & Kashmir Public Safety Act gives the Government the
power to detain any person if the government is 'satisfied' that it is 'necessary' to do so with a
view to prevent him from acting in any manner prejudicial to any one or more of the following
interests of the State: (i) Defence of the State (ii) Relation of the State with foreign power (iii)
Security of the State (iv) Public order; and (v) Maintenance of supply of services essential to the
community.33
2.2.5. Preventive detention means detention of a person without trial and conviction by a
court but merely on suspicion in the minds of the executive authority. In A. K. Goplan v. State of
Madras34, it was held that there is no authentic definition of Preventive Detention. In the case of
Sunil Kumar Sammaddar v. Superintendent of Hoagly Jail 35, Court had held that The word
“Preventive” means that restrain, whose object is to prevent probable or possible activity, which
is apprehended from a would-be detenue on the ground of his past activities.
2.2.6. The framers of the Constitution have, by incorporating Article 22(5) in the
Constitution, left room for the detention of a person without a formal charge and trial and
without such person held guilty of an offence and sentenced to imprisonment by a competent
court.36 Where individual liberty comes into conflict with an interest of the security of the State
or public order, then the liberty of the individual must give way to the larger interest of the
nation. These observations have been made by the Supreme Court. 37
2.2.7. It is humbly submitted that the Petitioner has committed a crime against humanity.
It is also relevant note that terrorism cannot be stopped by means of a soft approach. Instead, the

32
INDUS Const. art. 22, cl. 3.
33
supra 24.
34
A. K. Goplan v. State of Madras, AIR 1950 SC 27.
35
Sunil Kumar Sammaddar v. Superintendent of Hoagly Jail , 75 Cal WN 151.
36
Basharat Ahmad Mir v. State of Jammu and Kashmir and another, 2018 Indlaw JK 400.
37
The Secretary to Government, Public (Law and Order-F) and another v. Nabila and another, (2015) 12 SCC 127.

A MEMORIAL ON BEHALF OF THE RESPONDENT Page | 7

 A.U.M.P. NATIONAL MOOT COURT COMPETITION 2018

government needs strong determination and courage to combat terrorism for the safety and
security of the nation. So, detention on such ground is good sound and valid.
And also in this case even if the detention is illegal it became legal when the Petitioner
was placed before a magistrate and for further proceedings from there was remanded to the Anti-
Terrorism Squad where petitioner becomes undertrail prisoner and now must be tried in
accordance with law.38

2.3 THE QUESTION OF ILLEGAL ARREST OR DETENTION DOES NOT VITIATE THE SUBSEQUENT

PROCEEDINGS:-

2.3.1 It is humbly submitted that where there has been an unlawful arrest the fact of
such arrest will not vitiate subsequent proceedings leading to sentence. 39 The question of legal or
illegal detention between the periods does not make any difference here in this case. The
Petitioner is arrested lawfully by the Anti-Terrorism Squad authority under the law. It is relevant
to understand that when he is now an undertrial prisoner, illegal detention for very short does
period not be a matter here. Considering this point here, the detention became very much in
accordance with law when Petitioner was handed over to the Anti-Terrorism Squad.

2.3.2 It is humbly submitted that the earlier illegal detention of the Petitioner would not
vitiate the order of remand under Section 309(2), Cr.P.C.40 An earlier unauthorized or illegal
41
detention of an accused does not invalidate the subsequent proceedings valid detention. In the
42
case of Saptawna v. The State of Assam , the Petitioner had been under illegal detention from
January 10 to January 24, 1968. The court held that even if the Petitioner had been under illegal
detention. When he was arrested by the Civil Police and produced before the Magistrate on
January 25, 1968, he is now an undertrial prisoner.

Hence, the ground that the illegal arrest and detention vitiate the subsequent proceedings
won’t stand.

38
Shri Bacha Bora v. State of Assam and Others, 1991 CRLJ 2782.
39
State Ex Rel. Farrington v. Rigg Annotate this Case 259 Minn. 483 (1961)
40
Utchala Jayarami Reddy v. State Of Andhra Pradesh, 1993 CriLJ 3827.
41
Durel Behera v. Suratha Behera , 1986 II OLR 536
42
Saptawna v. The State of Assam, MANU/SC/0737/1971.

A MEMORIAL ON BEHALF OF THE RESPONDENT Page | 8

 A.U.M.P. NATIONAL MOOT COURT COMPETITION 2018

3. THE ACCUSED CANNOT BE ENLARGED ON BAIL ON THE GROUND THAT THE CHARGE SHEET
WAS NOT FILED WITHIN THE STATUTORY PERIOD

The statutory period of ninety days has not yet been completed [3.1]. The Petitioner cannot be
granted bail since the necessary considerations are not met. [3.2].

3.1 THE STATUTORY PERIOD OF NINETY DAYS HAS NOT YET BEEN COMPLETED.
3.1.1. The counsel for Respondent most humbly submits that the contention of the Petitioner
that the charge sheet was not filed within the statutory period is not valid as the Petitioner was in
the custody of the Anti-Terrorism Squad for 70 days only. 43 As per the provisions of the
Unlawful Activities (Prevention) Act, 1967 44 and the Code of Criminal Procedure, 1974 45 the
statutory period for filing the charge sheet is 90 days. The period of 30 days during which the
Petitioner was detained with the Army cannot be considered as detention under 167 of Cr.P.C or
43D (2) of Unlawful Activities (Prevention) Act, 1967. It is a misconceived stand that if
Petitioner was entitled to bail u/s.167(2) of CrPC at one stage, or if for some time his detention
was not under a valid order of remand, then he can enforce his right to be released on bail even at
the later stage of the proceeding.46 Detention became lawful when he was arrested and produced
by civil police before Magistrate for remand order as under-trial prisoners. 47
3.1.2. The counsel for Respondent humbly submits that if the detention of the Petitioner is
legal when the application for bail is preferred, his previous illegal detention should not be
considered.48 In the current case, the Petitioner is applying for the bail while the detention is with
the Anti-Terrorism Squad which makes it a legal detention. Even if the 30 days detention is
considered illegal then it should not be considered. Only the current legal detention by the ATS
should be consider for computation of 90days.

43
AUMP National Moot Court Competition, Moot Proposition, 4.
44
Unlawful Activities (Prevention) Act, 1967, No.37, Acts of Parliament, 1967 (India), § 43D(2).
45
Code of Criminal Procedure, 1973, No.2, Acts of Parliament, 1972 (India), § 167(2) a.
46
Rabindra Rai v. State of Bihar, 1984 CRLJ 1412.
47
Shri Bacha Bora v. State of Assam and Others, 1991 CRLJ 2782.
48
Mahesh Chand and Etc v. State of Rajasthan and Etc, AIR 1986 RAJ 58.

A MEMORIAL ON BEHALF OF THE RESPONDENT Page | 9

 A.U.M.P. NATIONAL MOOT COURT COMPETITION 2018

3.1.3 The counsel for Respondent humbly submits that in the current situation the
Petitioner was in the custody of the Anti-Terrorism Squad for only 70 days 49 the statutory period
of 90 days has not yet been expired. The total period of 90 days and the total period of 60 days
under clause (i) and clause (ii) of the 167 of Cr.P.C have to be calculated only from the date of
remand and not from the date of arrest.50 Here as per the proceedings, the remand has not yet
granted when the Petitioner was in the custody of the Army. Hence that period cannot be
considered as detention period of Petitioner as per Section 167 of Cr.P.C. The application for bail
filed by the Petitioner is a premature application which has been filed before the expiry of the
statutory detention period specified in the provisions of Unlawful Activities (Prevention) Act and
the Code of Criminal Procedure. Hence it was rejected by the Lower Court and the same has to
be upheld by the Hon’ble High Court.
3.1.4 Even if the detention of an accused is unauthorised or invalid because of infringement
of provisions contained in Section 167(2), 209 or 309{2) of the Code, he may make an
application for habeas corpus or persue remedies are available to him under the law but he
cannot seek bail on the mere ground that at some earlier point of time his detention was
unauthorised.51

3.2 THE BAIL CAN BE REJECTED IN THE CURRENT SITUATION OF THE CASE
3.2.1 The grant of bail is dependent upon the contextual facts of the matter being dealt with
by the court and facts, however, do always vary from case to case.52 There are no hard and fast
rules regarding grant or refusal of bail, each case has to be considered on its own merits. The
matter always calls for the judicious exercise of discretion by the court
3.2.2. A standard followed by some courts is to the effect that bail must be allowed as a
matter of right unless the evidence clearly indicates the commission of the offence by the
accused and probability of capital punishment, thereof. 53 Another criterion is that bail should be
allowed where, on a consideration of the whole evidence, a reasonable or well-founded doubt of

49
supra 35.
50
Chaganti Satyanarayan & Ors v. State of Andhra Pradesh, AIR 1986 SC 2130.
51
Durel Behera v. Suratha Behera , 1986 II OLR 536
52
Asim Pandya, Law of Bail: Practice and Procedure, 3 (1st e.d 2013).
53
Volume 8, Corpus Juris Secundum , 71.

A MEMORIAL ON BEHALF OF THE RESPONDENT Page | 10

 A.U.M.P. NATIONAL MOOT COURT COMPETITION 2018

accused's guilt exists or can be entertained or that doubt of accused's guilt of a capital offence is
shown.54
3.2.3. It has been decided in some cases that, to sustain a refusal of bail in a capital case. It is
enough that the evidence induces the belief that accused may have committed the offence,
however, it has also been held that where the proof establishes only a probability of guilt, bail
should not be allowed. The test is not whether the evidence establishes guilt beyond reasonable
doubt but rather whether it should evident guilt or a great presumption of guilt. 55
3.2.4 The basic rule may perhaps be tersely put as bail, not jail, except where there is
Circumstance suggestive of fleeing from justice or thwarting the course of justice or creating
other troubles in the shape of repeating offences or intimidating witnesses and the like, by the
Petitioner who seeks enlargement on bail from the court. It is true that the gravity of the offence
involved is likely to induce the Petitioner to avoid the course of justice and must weigh with the
court when considering the question of jail. So also, the heinousness of the crime is relevant. 56
3.2.5. Certain other points that may be attributed to being relevant considerations may also be
noticed at this juncture57:
a. While granting bail the court has to keep in mind not only the nature of the accusations
but the severity of the punishment, if the accusation entails a conviction as also the nature
of evidence in support of the accusations.
b. Reasonable apprehension of the witnesses being tampered with or the apprehension of
there being a threat for the complainant should also weigh with the court in the matter of
grant of bail.
c. While it is not accepted to have the entire evidence establishing the guilt of the accused
beyond reasonable doubt but there ought always to be a prima facie satisfaction of the
court in support of the charge.
d. Frivolity in prosecution should always be considered and it is only the element of
genuineness that shall have to be considered in the matter of grant of bail and in the event

54
Id.
55
Volume 8, Corpus Juris Secundum, 71 & 72.
56
State of Rajastan, Jaipur v. Balchand, AIR 1977 SC 2447.
57
Asim Pandya, Law of Bail: Practice and Procedure, 15(1st e.d. 2013) .

A MEMORIAL ON BEHALF OF THE RESPONDENT Page | 11

 A.U.M.P. NATIONAL MOOT COURT COMPETITION 2018

of there being some doubt as to the genuineness of the prosecution, in the normal course
of events, the accused is entitled to an order of bail. 58

3.2.6. In the current case, the Petitioner has given a confessional statement u/s 164 of Cr.P.C
to the effect of confessing that he was involved in the terrorist attack on 26 th November 2015 in
India.59 Confession ordinarily is admissible in evidence. It is a relevant fact and it can be acted
upon. Confession under certain circumstance can be a ground for conviction. 60 The confession
given by the Petitioner leads to prima facie satisfaction of the court in support of the charge
which is one of the considerations that has to be taken into consideration by the Court while
granting of bail. Where overwhelming considerations in the nature aforesaid require denial of
bail, it has to be denied.61

Hence keeping in mind all these various factors it can be said that Petitioner cannot be
granted bail.

4. THE ACCUSED WAS NOT DEPRIVED OF HIS CONSULAR AND COUNSEL RIGHTS CAUSING
PREJUDICE IN DEFENDING HIS CASE

Engagement of Counsel during pre-trial period is not mandatory [4.1]. Vienna Convention on
Consular Relations is not binding since there is no municipal enactment in Indus [4.2]. The
Petitioner cannot be provided with a counsel from Panjiksistan [4.3]. Providing an Indus counsel
to the Petitioner won’t result in prejudice in preparation of his defence. [4.4].

4.1 ENGAGEMENT OF COUNSEL DURING PRE-TRIAL PERIOD IS NOT MANDATORY

4.1.1. The contention of the accused that since he was not enlarged on bail he couldn’t
engage a counsel of his choice won’t stand. There is no legal authority that an accused has to be
provided during pre-trail.

58
Ram Govind Upadhyay v. Sudarshan Singh, AIR 2002 SC 1475; State of Maharasthra v. Sitaram Papat Vetal,
AIR 20004 SC 4258.
59
AUMP National Moot Court Competition, Moot Proposition, 3.
60
Aloke Nath Dutta and Ors. v. State of West Bengal, (2007) 12 SCC 230.
61
State v. P Sugathan, 1988 Cr.LJ 1036 (Ker).

A MEMORIAL ON BEHALF OF THE RESPONDENT Page | 12

 A.U.M.P. NATIONAL MOOT COURT COMPETITION 2018

4.1.2. The State Government must also provide at its own cost a lawyer to the under-trial
prisoner with a view to enable him to apply for bail in the exercise of his right under proviso (a)
to Sub-section (2) of Section 167 of Cr. P.C. 62
4.1.3. The Apex Court has held that every accused unrepresented by a lawyer has to be
provided with a lawyer at the commencement of the trial, engaged to represent him during the
entire course of the trial. Even if the accused does not ask for a lawyer or he remains silent, it is
the Constitutional duty of the court to provide him with a lawyer before commencing the trial. 63
Unless the accused voluntarily informs the court, in clear and unambiguous words, that he does
not want the assistance of any lawyer and would rather defend himself personally, the obligation
to provide him with a lawyer at the commencement of the trial is absolute, and failure to do so
would vitiate the trial and the resultant conviction and sentence, if any, given to the accused. 64
But the failure to provide a lawyer to the accused at the pre-trial stage may not have the same
consequence of vitiating the trial.65 It may have other consequences like making the delinquent
magistrate liable to disciplinary proceedings or giving the accused a right to claim compensation
against the State for failing to provide him legal aid. But it would not vitiate the trial unless it is
shown that failure to provide legal assistance at the pre-trial stage had resulted in some material
prejudice to the accused in the course of the trial. That would have to be judged on the facts of
each case.
Therefore in the current case, the fact that the accused has not been provided bail and
because of this he couldn’t engage a counsel of his choice won’t stand.

4.2 THAT HE WAS NOT GIVEN CONSULAR ACCESS, WHICH IS NOT CONTRAVENTION OF VIENNA
CONVENTION ON CONSULAR RELATIONS.
4.2.1. It is humbly submitted that India follows the doctrine of dualism and that a treaty
entered into by India cannot become law of the land unless parliament passes a law as required
under Article 25366. It is further submitted that unlike some countries, where international law,

62
Akhlak And Ors. v. The State Of M.P, 2000 CriLJ 4899.
63
Mohd. Ajmal Amir Kasab v. State of Maharashtra, (2012) 9 SCC 1.
64
Suk Das & Anr v. Union Territory of Arunachal, AIR 1986 SC 991.
65
Mohd. Ajmal Amir Kasab v. State of Maharashtra, (2012) 9 SCC 1.
66
State of West Bengal v. Kesoram Industries, (2004) 10 SCC 201.

A MEMORIAL ON BEHALF OF THE RESPONDENT Page | 13

 A.U.M.P. NATIONAL MOOT COURT COMPETITION 2018

even without transformation to national law, is considered part of the law of the land (i.e. the
principle of monism), international law does not become binding under the Indian constitution
until an appropriate domestic legislation is enacted to give effect to it. Indeed, many cases
decided by high courts and the Supreme Court reflect the dualist approach of the Indian legal
system. International legal norms are not directly enforceable in Indian courts till there is a
67
domestic legislation giving effect to these norms. The Petitioner contends that he was not
given consular access, which was in contravention of the Vienna Convention on Consular
Relations.
4.2.2. The Supreme Court's ruling in Jolly is that treaties entered into by the Union of
India do not become enforceable in the courts and neither do they become part of the domestic
law of India. India is now a signatory to this Covenant and Art. 51(c) of the Constitution
obligates the States to foster respect for international law and treaty obligations in the dealings of
organized peoples with one another. Even so, until the municipal law is changed to accommodate
the Government what binds the court is the former, not the latter. 68
4.2.3. The Supreme Court has said that the ratification of these international conventions
and covenants is done, in most of the countries by the Executive acting alone and that the
prerogative of making the law is that of the Parliament alone unless the Parliament legislates, no
law can come into existence. 69
4.2.4. In the case of Jamal Mirza v State70 it can, therefore, be seen that there is no
automatic acceptance of an international treaty, even post-ratification, as domestic law in India.
It only becomes binding as law once Parliament has indicated its acceptance of the ratified treaty
through enabling legislation. Since no such legislation exists, VCCR treaty is not binding, and
therefore, non-compliance with its provisions does not result in a violation of the procedure
established by law. The only rider is that if the standard postulated in the covenant or
international treaty is consistent with Indian law, the same can be considered as an aid to

67
Id.
68
George Verghese v. Bank of Cochin, 1980 (2) SCC 360.
69
People’s Union for Civil Liberties v. Union of India, (1997) 3 SCC 433.
70
Jamal Mirza v. State, ILR 2012 II Delhi 711.

A MEMORIAL ON BEHALF OF THE RESPONDENT Page | 14

 A.U.M.P. NATIONAL MOOT COURT COMPETITION 2018

interpretation of the relevant provision of municipal law. 71 And also VCCR is not conclusive
evidence on the present state of International law. 72
4.2.3. The safeguard provided for in the Article of the Convention in the present case is to
ensure that the foreign national who has been arrested or detained is not denied his basic human
rights and pertinently is afforded effective legal assistance in a criminal trial. The Right to Life
as contained in Article 21 of the Constitution of India is available even to foreign nationals in
India73, and the right to legal representation has been read into this right in Khatri and Ors. v.
State of Bihar74 and Hussainara Khatoon v. State of Bihar.75
4.2.4. It is now well settled, that when Article 21 provides that no person shall be
deprived of his life or liberty except in accordance with the procedure established by law, it is
not enough that there should be some semblance of procedure provided by law, but the procedure
under which a person may be deprived of his life or liberty should be reasonable, fair and Just.76
Now, a procedure which does not make available legal services to an accused person who is too
poor to afford a lawyer and who would, therefore, have to go through the trial without legal
assistance, cannot possibly be regarded as 'reasonable, fair and just'. It is an essential ingredient
of reasonable, fair and just procedure to a prisoner who is to seek his liberation through the
court's process that he should have legal services available to him. 77
4.2.5. Since the Petitioner in the present case was given legal representation, the object of
Article 36(1) (b)78 is satisfied. The non-compliance with a procedural safeguard, contained in the
Convention, of notifying the consulate or embassy of the foreign national, that he is facing trial,
does not in such an event lead to such prejudice as to vitiate the trial itself. At best the procedure
can be viewed as a directory; as long as the Court ensures legal assistance or legal aid, implicit in
Article 21 of the Constitution, the non-compliance with Article 36(1)(b) at least in the present

71
Id.
72
Satow, 251, 6the.d. 2009.
73
The Chairman, Railway Board & Ors v. Mrs. Chandrima Das, AIR 2000 SC 988.
74
Khatri and Ors. v. State of Bihar, (1981) SCC (Cri) 235.
75
Hussainara Khatoon v. State of Bihar (1980) SCC (Cri) 35.
76
Maneka Gandhi v. Union of India, [1978] 2 SCR 621.
77
Supra 70.
78
Vienna Convention on Consular Relation, 1963.

A MEMORIAL ON BEHALF OF THE RESPONDENT Page | 15

 A.U.M.P. NATIONAL MOOT COURT COMPETITION 2018

instance has not led to any miscarriage of justice. Therefore, the Petitioner’s argument that the
trial of the Petitioner was in contravention of the procedure established by law has no merit.

4.3 THE PETITIONER CANNOT BE PROVIDED WITH A COUNSEL FROM PANJIKSISTAN:-

4.3.1. It is humbly submitted that the offences committed by the Petitioner took place in
the soil of the country Indus. Hence Indus law should be made applicable since the exercise of
criminal jurisdiction depends on the locality of the offence and not on the nationality of the
alleged offender.79
4.3.2. It is humbly submitted that foreign lawyers cannot practice the profession of law in
India either in the litigation or in non-litigation side.80 As per The Advocates Act, 1961 any
person who wants to take the advocacy profession in India is required to be enrolled on the rolls
of the advocates the State Bar Council maintains.81 It says that only those advocates who are
registered under the Act are considered as a recognized class of persons who are entitled to
practice law in the country.82 A Panjiksistan counsel can practice and represent in the Indus
Courts only if the citizens of Indus are permitted to do the same there. 83 And also appearance as
per section 32 of the Act is can be allowed under the discretion of the Judge and cannot be asked
as a matter of right.84
4.3.3. It is humbly submitted that the Madras High Court in the year 2012 has stated that
foreign law firms or foreign lawyers cannot practice the profession of law in India either on the
litigation or non-litigation side, unless they fulfil the requirement of the Advocates Act, 1961 and
the Bar Council of India Rules.85 This has been further stated again in the 226th Law Commission
report.86 When Civil Appeal was filed by the Bar Council of India against the Judgment of

79
Mobarik Ali Ahmed v. The State of Bombay, AIR 1957 SC 857.
80
Association of Indian Lawyers v. M/s. London Court of International Arbitration (LCIA) and ors, Civil Appeal
No.7170 of 2015.
81
The Advocates Act, 1961, No. 25, Acts of Parliament,1961 (India), § 17.
82
The Advocates Act, 1961, No. 25, Acts of Parliament,1961 (India), §.29.
83
The Advocates Act, 1961, No. 25, Acts of Parliament,1961 (India), § 47.
84
Jaymal Thakore v. Charity Commissioner, Gujarat State and ors, AIR 2001 Guj 279.
85
A. K. Balaji v. Government of India and others, AIR 2012 MAD 124.
86
Law Commission of India Report No.266, 43.

A MEMORIAL ON BEHALF OF THE RESPONDENT Page | 16

 A.U.M.P. NATIONAL MOOT COURT COMPETITION 2018

Madras High Court the court upheld the holdings of the Madras High Court that the foreign
lawyers cannot practice the profession of law in India.87
Hence a Panjiksistan advocate can’t represent the Petitioner in Indus.

4.4 PROVIDING AN INDUS COUNSEL TO THE PETITIONER WON’T RESULT IN PREJUDICE:-

4.4.1. The counsel for Respondents humbly submits that the Right to free legal aid is an
essential ingredient of due process that is implicit in the guarantee of Article 21 of the
Constitution.88 Art. 22(1) of the Constitution of India guarantees a fundamental right that no
persons shall be denied the right to consult and to be defended by, a legal practitioner of his
choice.89 In addition to this Article 39-A of the Indus Constitution states that
“39A. Equal justice and free legal aid The State shall secure that the operation of the
legal system promotes justice, on a basis of equal opportunity, and shall, in particular,
provide free legal aid, by suitable legislation or schemes or in any other way, to ensure
that opportunities for securing justice are not denied to any citizen by reason of economic
or other disabilities.”
4.4.2. It is humbly submitted that Section 304, Cr.P.C. provided that wherein a trial
before the Court of Session, the Petitioner is not represented by a pleader, and where it appears
to the Court that the Petitioner has not sufficient means to engage a pleader, the Court shall
assign a pleader for his defence at the expense of the State.90 In furtherance of this Article,91 the
Legal Services Authorities Act of 1987 has been enacted by the parliament.
4.4.3. Further, it is humbly submitted that Rules 6 and 7 and particularly sub-rules (5) and
(6) of Rule 7 of Appendix B of Chapter V of the Criminal Manual are to be referred here. Rule 6
pertains to a panel of legal practitioners for Legal Aid. As per Rule 6, the appointment of a legal
practitioner for the unrepresented Petitioner shall be made from a panel of legal practitioners
constituted for each court by the Presiding Officer of the Court in consultation with the President
and the Office bearers of the Bar Association. Where the offence is punishable with sentence of

87
Bar Council of India v. A.K. Balaji and Ors, Civil Appeal Nos.7875-7879 of 2015.
88
India Const. art. 21.
89
India Const. art. 22, cl. 1.
90
Code of Criminal Procedure, 1973, No.2, Acts of Parliament, 1972 (Indus), § 304.
91
India Const. art. 39A.

A MEMORIAL ON BEHALF OF THE RESPONDENT Page | 17

 A.U.M.P. NATIONAL MOOT COURT COMPETITION 2018

death or imprisonment for seven years or more, a senior advocate with a junior advocate from
the panel shall be appointed for defending the unrepresented Petitioner and as far as possible, the
Presiding Officer shall not make an appointment from outside the panel but he may do so for any
exceptional reason to be recorded in writing. 92
4.4.4. It is humbly submitted that the standard of the Counsels who are appointed under
these provisions for the purpose of free legal aid is high. The requirement of providing counsel to
Petitioner at the State expense is not an empty formality which may be not by merely appointing
a counsel whatever his calibre may be. When the law enjoins appointing a counsel to defend the
Petitioner, it means an effective counsel, a counsel in real sense who can safeguard the interest of
the Petitioner in best possible manner which is permissible under law. 93

4.4.5. It is humbly submitted that the Supreme Court has stated that particular attention
should be paid to appoint competent advocates, equal to handling the complex cases-not
patronizing gestures to raw entrants to the Bar. Sufficient time and complete, papers should also
be made available, so that the advocate chosen may serve the cause of justice with all the help at
his command.94

4.4.6 So keeping in mind all these standards that are to be met and guidelines that are to
be followed to appoint free legal aid to the Petitioner and based on the previous incidents where
the Courts in Indus have tried the Petitioner parties who are not the citizens of Indus, it can be
said without any hesitation or any reluctance.

5. THE ACCUSED WILL BE NOT DEPRIVED OF FAIR TRIAL IN INDUS ESPECIALLY CONSIDERING
ADVERSE PUBLICITY IN THE MEDIA

The counsel for Respondent humbly submits that the adverse publicity in the media does
not affect the fair trial [5.1]. and Judiciary is not influenced in any manner either by the
propaganda or adverse publicity [5.2].

92
State of Maharashtra and another v. Mohammed Ajmal Mohammad Amir Kasab and others, 2011 Indlaw MUM
91.
93
Ram Awadh v. State of U.P, 1999 Cri.L.J. 4083.
94
Ranchod Mathur Wasawa v. State of Gujarat, AIR 1974 SC 1143.

A MEMORIAL ON BEHALF OF THE RESPONDENT Page | 18

 A.U.M.P. NATIONAL MOOT COURT COMPETITION 2018

5.1 ADVERSE PUBLICITY IN THE MEDIA DOES NOT AFFECT THE FAIR TRIAL OF PETITIONER:-

5.1.1. It is humbly submitted that the media in the Republic of India won’t broadcast or
publish anything related to the incident the Petitioner is involved within a harmful or adverse
way as they are governed by certain guidelines.
5.1.2. In the case of R v Abu Hamza95, Abu Hamza took his case to the Court of Appeal
arguing that the jury in his trial had been prejudiced by unremitting, extensive, sensational,
inaccurate and misleading media reporting. Following the accused conviction, the Court of
Appeal rejected Hamza’s claims stating “The fact that adverse publicity may have risked
prejudicing a fair trial is no reason for not proceeding with the trial if the Judge concludes that,
with his assistance, it will be possible to have a fair trial.”
5.1.3 Judges are not influenced in any manner either by the propaganda or adverse
publicity. The judges by their judicial training and the kind of office they hold are not expected
to be influenced by such a broadcast of the film. 96

5.2. JUDGES ARE NOT INFLUENCED IN ANY MANNER EITHER BY THE PROPAGANDA OR ADVERSE
PUBLICITY

5.2.1. In the case of R. Balkrishna Pillai v. State of Kerala97, the Petitioner therein was
convicted under Prevention of Corruption Act, and his appeal was pending before the High Court
of Kerala. He had filed a petition seeking transfer of that appeal to a Court outside Kerala. In
Para 9, the Apex Court observed that in this country there is complete separation of judiciary
from the executive and judges are not influenced in any manner either by the propaganda or
adverse publicity, and the cases are decided on the basis of the evidence available on record and
the law applicable.98
5.2.2. In the case of Anukul Chandra Pradhan v. Union of India99, the Supreme Court
observed that “No occasion should arise for an impression that the publicity attached to these
matters has tended to dilute the emphasis on the essentials of a fair trial and the basic principles

95
R v. Abu Hamza, [2006] EWCA Crim 2918.
96
Mushtaq Moosa Tarani v. Government of India and Ors, MANU/MH/1614/2005.
97
R. Balkrishna Pillai v. State of Kerala, (2000) 7 SCC 129.
98
Sri Bhubaneswar Singh Deo v. State of Orissa, 2004 Indlaw ORI 53; 2004 CRLJ 4377.
99
Anukul Chandra Pradhan v. Union of India, 1996(6) SCC 354.

A MEMORIAL ON BEHALF OF THE RESPONDENT Page | 19

 A.U.M.P. NATIONAL MOOT COURT COMPETITION 2018

of jurisprudence including the presumption of innocence of the Petitioner unless found guilty at
the end of the trial.” Since there is no occasion has been raised in unlawfully by the republic
Indus to dilute the emphasis on the essentials of a fair trial, the Petitioner cannot raise his voice
regarding the right to fair trial before this Court.
5.2.3. It is humbly submitted that In Parliament attack case100, During the Media Trial
where Telecast of interview of Petitioner in T.V. Channels Plea taken that, Media trial causes
prejudice and hatred against Petitioner. He also contended that there is Possibility of Judges
influenced by propaganda or adverse publicity. But it was said that our Judges are trained, skilled
and have sufficient experience to shut their minds receiving hearsay evidence.
Basing on the above-stated reasons, it is relevant to understand that adverse publicity in
the media does not affect the process of fair trial in this particular case.

100
State v. Navjot Sandhu, (2005)11 SCC 600, State v. Mohd. Afzal and Ors, MANU/DE/1026/2003.

A MEMORIAL ON BEHALF OF THE RESPONDENT Page | 20

 A.U.M.P. NATIONAL MOOT COURT COMPETITION 2018

PRAYER

It is, therefore, most humbly prayed before this Hon’ble Apex Court to kindly dismiss this
vexatious SLP filed by Petitioner and may be pleased to adjudge and declare that:

1. This Special Leave Petition is not maintainable under the law.

2. Respondent’s actions are Valid & Justifiable under the law.
3. These contentions raised by Petitioner are misconceived and farfetched contentions which
are bereft of any merit.
4. And uphold the decision of the High Court which has decided the case on merits.

And/or pass such other order in light of justice, equity and good Conscience which this Hon’ble
court may feel fit and proper in the circumstances of the case.

And for this act of kindness, the Respondent duty bound shall forever pray.

All of which are most humbly prayed.

S/d-
Counsels for Respondents/-
1.
2.

A MEMORIAL ON BEHALF OF THE RESPONDENT Page | 21