THE 7TH ANNUAL ADV. B.P.

APTE MEMORIAL MOCK TRIAL, MOOT COURT AND JUDGEMENT WRITING

COMPETITION, 2019

TEAM CODE-

THE 7TH ANNUAL ADV. B.P. APTE MEMORIAL

MOCK TRIAL, MOOT COURT AND JUDGEMENT
WRITING COMPETITION, 2019

BEFORE THE HON’BLE SUPREME COURT OF FINDIA

PUBLIC INTEREST LITIGATION

UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA

W.P. NO._____ OF 2019

IN THE MATTER OF

LIELA ROMANOFF & OTHERS

(PETITIONER)

V.

UNION OF FINDIA & OTHERS

(RESPONDENT)

WRITTEN SUBMISSIONS ON BEHALF OF PETITIONER

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INDEX

INDEX OF AUTHORITIES……………………………………………………………….....3

A. TEXTBOOKS & COMMENTARY REFFERED-

 INDIAN PENAL CODE
 NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT.
 CONSTITUTION OF INDIA
B. WEBSITES REFFERED
C. COURT CASE LAWS CITED
D. STATUTES REFFERED

ISSUES………………………...………………………………..............................................5

ARGUMENTS ADVANCED……………………………………………………..................6

[1]. WHETHER THE SECTIONS 8C & 27 OF THE NDPS ACT, 1985 SUFFER FROM
ANY CONSTITUTIONAL INFIRMITIES AND ARE THEREFORE ULTRA VIRES TO
THE CONSTITUTION OF INDIA? .......................................................................................6
[2]. WHETHER SECTION 35 WHICH ATTACHES A PRESUMPTION OF
CULPABILITY AND SECTION 54 WHICH PLACES BURDER OF PROOF ON THE
ACCUSED AS REGAR TO THE POSSESSION OF ILLICIT ARTICLES, OF THE NDPS
ACT, 1985 IS ULTRA VIRES THE CONSTITUTION OF
INDIA?....................................................................................................................................15
[3]. WHETHER THE CONSUMPTION OF DRUGS CAN FALL WITHIN THE
PROTECTIVE COVER OF ARTICLE 25?...........................................................................21

PRAYER………………………………………………………………………………....….26

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INDEX OF AUTHORITIES

1. BOOKS REFERRED
 INDIAN PENAL CODE
1. RATANLAL & DHIRAJLAL, COMMENTARY ON THE INDIAN PENAL CODE,
VOLUME I & II (LEXIS NEXIS, 35TH EDITION, 2018).
 INDIAN EVIDENCE ACT
1. RATANLAL & DHIRAJLAL, THE LAW OF EVIDENCE, 24TH EDITION.
 NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCE ACT
[1]. DR. J.N. BAROWALIA, COMMENTARY ON NARCOTIC DRUGS AND
PSYCHOTROPIC SUBSTANCES ACT, 2ND EDITION, 2011.
[2]. BANERJEE‘S, THE NARCOTICS DRUGS AND PSYCHOTROPIC
SUBSTANCES ACT, 2ND EDITION, 1996.
[3]. SHARMA & MAGO, NARCOTIC DRUGS AND PSYCHOTROPIC
SUBSTANCES LAW, 3RD EDITION, 2017
[4]. DIBYAJYOTI DE, GUIDE TO THE NARCOTICS DRUGS AND
PSYCHOTROPIC SUBSTANCES ACT, 2ND EDITION, 2009.
 INDIAN CONSTITUTION
[1]. M.P. JAIN, INDIAN CONSTITUTIONAL LAW, 8TH EDITION, 2018.
[2]. DR. J.N. PANDEY, CONSTITUTIONAL LAW OF INDIA, 53 RD EDITION, 2016.
2. WEBSITES REFFERED
 www.scconline.com
 www.westlawindia.com
 www.heinonline.org
 www.manupatra.com
 www.legalserviceindia.com

3. CASE LAWS CITED

CASES PAGE

6
Collector of Madura v. Mooto Ramalinga, (1868) 12 M.I.A. 397.

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7
Kishori Mohan v. State of West Bengal, A.I.R. 1973 S.C. 1749.
7
Tamistry Case, (1608) 80 E.R. 516.
8
Ram Swaroop and Others vs Mahindra and Others, (2003) 12 S.C.C. 436.
15
Sarvan Singh v. State of Punjab, AIR 1957 S.C. 637.
16
State v. Coetzee, (1997) 2 L.R.C. 593.
17
State v. Basson, 2004 (6) B.C.L.R. 620 (CC).
18
S v. Dlamini; S v. Dladla and Others, 1999(7) B.C.L.R. 771 (CC).
19
Regina v. Lambert, (2001) U.K.H.L. 37 : (2001) 3 All ER 577 (U.K.).
23
Downes v. Bidwell, 182 US 244 (1901).
23
United States v. Ballard, 322 US 78 (1944).
23
Cantwall v. Connecticut, 310 US 295 (1931).
24
S.R. Bommai vs Union of India, A.I.R. 1994 S.C. 1918.
24
Bramchari Sidheswar Sahai Vs State of West Bengal, (1995) 4 S.C.C. 646.

4. STATUES REFFERED
[1]. INDIAN PENAL CODE,1860.
[2]. NARCOTICS DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985.
[3]. THE CONSTITUTION OF INDIA, 1950.
[4]. INDIAN EVIDENCE ACT, 1872.

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ISSUES

[1]. WHETHER THE SECTIONS 8C & 27 OF THE NDPS ACT, 1985

SUFFER FROM ANY CONSTITUTIONAL INFIRMITIES AND ARE
THEREFORE ULTRA VIRES TO THE CONSTITUTION OF INDIA?

[2]. WHETHER SECTION 35 WHICH ATTACHES A PRESUMPTION

OF CULPABILITY AND SECTION 54 WHICH PLACES BURDER OF
PROOF ON THE ACCUSED AS REGAR TO THE POSSESSION OF
ILLICIT ARTICLES, OF THE NDPS ACT, 1985 IS ULTRA VIRES THE
CONSTITUTION OF INDIA?

[3]. WHETHER THE CONSUMPTION OF DRUGS CAN FALL WITHIN

THE PROTECTIVE COVER OF ARTICLE 25?

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ARGUMENTS ADVANCED

[1]. WHETHER THE SECTIONS 8C & 27 OF THE NDPS ACT, 1985

SUFFER FROM ANY CONSTITUTIONAL INFIRMITIES AND ARE
THEREFORE ULTRA VIRES THE CONSTITUTION OF INDIA?

1. It is humbly submitted before the Hon‘ble Supreme Court that Section 8(c) of the
NDPS act suffers from many constitutional infirmities. It is not according to the principles of
Natural Justice as the said section puts restriction on the freedom to the individuals which
does not even disturb public peace and order. The said section does not take into count the
intention and motive behind the acts, whether they are in good faith or bad faith.

[1.1]. SECTION 8(C) VIOLATES THE PRINCIPLES NATURAL JUSTICE

2. Section 8 (c)- Prohibition of certain operations- No person shall-

3. (c) produce, manufacture, possess, sell, purchase, transport, warehouse, use,
consume, import inter-State, export inter-State, import into India, export from India or
tranship any narcotic drug or psychotropic substance,1
4. The commentators of Smritis made it clear that on matters not covered by Smritis,
customs would supplement the law. Thus customs formed a part of the law. This contention
finds support in the Privy Council decision in Collector of Madura v. Mooto Ramalinga2
wherein it was held that under the Hindu system of law, clear proof of usage will outweigh
the written text of the law.
5. Section 8(c) of NDPS act is against the principle of natural justice, as it is contrary to
the law of the nature. Personal use and possession of narcotic substances which are not
against public peace and order should not have any restriction whereas section 8(c) restricts
the same. The law of the nature demands freedom to the individuals which does not disturbs
public peace and order.

1
The Narcotic Drugs and Psychotropic Substances Act, 1985, No. 61, Acts of Parliament, 1985.
2
(1868) 12 M.I.A. 397.

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6. The Hon‘ble SC in Kishori Mohan v. State of West Bengal3 has defined public
order.

“Anything that disturbs public tranquillity or public peace disturbs public order.
Thus communal disturbances and strikes promoted with the sole object of causing
unrest among workmen are offences against public order. Public order thus
implies absence of violence and orderly state of affairs in which citizens can
peacefully pursue their normal avocation of life. Public order also includes
public safety. Public safety means the safety of the community from external and
internal dangers. Thus creating internal disorder or rebellion would affect public
order and public safety.”

7. It is hereby contended by the counsel on behalf of the petitioners that the act that they
were indulging did not suffer from any of the lacunas mentioned above. Not a single case of
harming public safety or disturbing public order has been registered against Kishu Rado‘s
cult in it‘s 50 years of existence. How can then restrictions be imposed under the garb of
protecting the society at large?

[1.2]. CUSTOMARY PRACTISE SHOULD BE ALLOWED

8. The counsel would like to contend that the consumption of drug for the religious
purpose comes under customary usage and thus Section 8(c) of NDPS act is in contravention
to the customary usage of drugs.

9. According to Halsbury, ―custom is some kind of special rule which is in actual

existence or possibly followed from time immemorial and which has acquired the force of
law in specified territory, although it may be contrary or inconsistent with the general law of
the land.‖4

10. In Tamistry case,5 it was held that custom is jus non scriptum and it is evolved by the
people in respect of a place in respect of a place where it is followed. When people find any
act to be beneficial and agreeable to their nature and disposition, they start practising it
from time to time and when it continued for immemorial time, it obtains force of law.

3
A.I.R. 1973 S.C. 1749.
4
Halsbury: Laws of England, Vol. X, p. 2.
5
(1608) 80 E.R. 516.

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11. The modern law for most of its part emanates from legislative enactments, that is they
are man-made. It is mainly concerned with actions or omissions but does not bother itself
about the motives. But the religious part of the dharma always looked to the motive behind
the act. Thus religion was meant to protect the universe including human society and dharma
stood for ―religious rights, fixed principles of rules of conduct and whole body of religious
duties.‖

12. The Supreme Court in one of its judgements in Ram Swaroop and Others vs
Mahindra and Others,6 that customs must be pleaded and proved.

13. The essentials of a custom as enumerated by the noted Author B.N. Mani Tripathi in
his popular work ‗ Jurisprudence : The Legal Theory ‗ are as follows -

a) Antiquity - A custom to be recognised as law must be proved to be in

existence since a long time.

b) Continuance - It should have been practised continuously.

c) Peaceable enjoyment - The custom must have been enjoyed peaceably.

d) Obligatory Force - It must have been supported by the general public.

e) Certainty - A custom must be certain.

f) Consistency - Custom must not come into conflict with the other
established customs.

g) Reasonableness- A custom must be reasonable.

14. The counsel humbly submits before the Hon‘ble Court that the practice of attaining a
higher spiritual awareness and intimacy with god by taking drugs to concentrate and meditate
has been in practice in India since thousands of years. The earliest mention of it is found in
the Rig Veda which was written thousands of years ago. The practice has since been in
continuity and there are ample evidence to support the same. WE can still sadhu‘s and yogi‘s
smoke chillum with devotees and the general public looking at them in reverence and awe
thereby fulfilling the condition of peaceful enjoyment and obligatory force. Even young kids
are taken on spiritual trips to meet yogi‘s and sadhu‘s to take their blessings. The custom in
very certain in the sense that it is used as a catalyst to invoke the higher inner voice to find

6
(2003) 12 S.C.C. 436.

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god. There have been no conflicts over their usage and almost every portrait of Lord Shiva
depicts him smoking a chillum. The custom is a reasonable practice as it is not used for
recreational purpose. It has always been attached to god and has been seen as a symbol
related to god.

15. Narada Muni, revered as a god in India, has said: Usage is indeed powerful. It
overrides the law. Manu, believed to be the creator of the Indian society and the maker of
Hindu laws, has said:

One should follow the righteous path that has been followed by our ancestors. By
following that path, one does not suffer. It can be seen that the ancient Hindu
treatise on jurisprudence and law attached a great deal of importance with
customs and held them in high regard.

16. Many suspect that the mythical liquid „som ras‟, which is said to be consumed by
the Aryans before they started worship, was essentially a drink made from Cannabis. It was
their custom.

17. The petitioners were also consuming the narcotic substance for religious purpose, so
it was their customary usage. They were using it for meditation and understanding and
appreciating the way of life better. They were consuming it to attain nirvana and that is why
they were calling it “essence of heaven”.

[1.3]. ELEMENT OF INTENT AND MOTIVE MISSING IN SECTION 8(c)

18. “Intent‖ is very important in Law. Often, two similar “Act” can result in different
punishments if there is difference in “Intent”. It may be reiterated that a man is held liable
not for his act alone but if it is also accompanied with mens rea or guilty mind with which he
does it. Thus mens rea refers to the mental element necessary for the particular crime and
this element may either be intention to do the act or recklessness (or negligence) as to the
consequences of that act.

19. Motive is an idea, belief, or emotion that impels a person to act in accordance with
that state of mind. Motive is usually used to explain why a person acted or refused to act in a
certain way. Mere intention or will to commit does not constitute an offence if it is not
followed by an external overt act. Every act of an individual can be analysed in two stages,
namely, the ultimate purpose of it and the immediate intention of doing it. The former is
called the motive which is different from intention of committing an offence.

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20. The Supreme Court has previously said that if a believer thinks that any religious act
is absolutely essential to him in relation to his connection to the divine/God and such practice
is mentioned specifically in his scriptures as beneficial for his spiritual well-being, he will be
given certain favourable amends.

21. While smoking Cannabis for recreation is illegal, the government probably ignores
the Sadhus simply because smoking cannabis is an integral part of their religious practices.
Also, add the fact that the Sadhus do not create any additional trouble due to smoking
cannabis and consuming cannabis does not violate any basic law, the government
just does not bother. Most of the Sadhus in the country smoke it to
achieve adhyaatm (sprituality). They don't smoke it for intoxication or recreation. It is a kind
of a prasaad(sacred offering by God) to them.

22. There is rarely any malafide intent on the part of Sadhus to cause any trouble to the
public. We see people during the Kawad Yatra in Delhi, in large numbers, smoking cannabis
through a chillam on the streets. They don't cause you any trouble unless you try and rattle
them.

23. According to a legend, a monk named SIDDHARTHA GAUTAM lived on a daily

ration of one bhang seed and nothing else during his six years of asceticism. They do not use
it for intoxication and cause any trouble, they just consume it in different forms in order to
help them in meditation.

24. Thus, if the Sadhus are given immunity for the consumption of cannabis just because
they have no bad motive, i.e., they are not causing any trouble to anyone or not violating any
basic law, they don‘t smoke it for intoxication or recreation, then similarly the petitioners
also don‘t use the narcotic substance for any bad motive. They also use it for the purpose of
meditation only. That is why they call the substance as “essence of heaven”, rather than
calling it ―drugs‖ because it takes them to the world of nirvana, away from the chaos of life.

[1.4]. SECTION 27 IS IN CONTRAVENTION OF ARTICLES 13, 20 OF

CONSTITUTION

25. The Explanation to Section 27 of N.D.P.S. Act casts a burden on the accused to
prove that he had possessed the said narcotic substance for personal consumption and casting
any burden on the accused, is in contravention of Articles 13, 20 and 21 of the Constitution
of India.

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26. 27. Punishment for consumption of any narcotic drug or psychotropic

substance.—Whoever, consumes any narcotic drug or psychotropic substance shall be
punishable,—
(a) where the narcotic drug or psychotropic substance consumed is cocaine,
morphine, diacetyl- morphine or any other narcotic drug or any psychotropic
substance as may be specified in this behalf by the Central Government by notification
in the Official Gazette, with rigorous imprisonment for a term which may extend to
one year, or with fine which may extend to twenty thousand rupees; or with both; and

(b) where the narcotic drug or psychotropic substance consumed is other than those
specified in or under clause (a), with imprisonment for a term which may extend to six
months, or with fine which may extend to ten thousand rupees, or with both.7

27. Explanation- Where a person is shown to have been in possession of a small quantity
of a narcotic drug or psychotropic substance, the burden of proving that it was intended for
the personal consumption of such person and not for sale or distribution, shall lie on such
person.
28. The said provision is ultra vires inasmuch as it is in contravention of provisions of
Article 13 read with Articles 20 and 21 of the Constitution of India. It is contended that the
said Explanation to Section 27 of N.D.P.S. Act is in contravention of Article 13 read with
Article 20, Clause (3) of the Constitution of India, inasmuch as it compels the accused to
prove that the small quantity possessed was intended for personal consumption and not for
sale or distribution. Clause (2) of Article 13 contemplates that “the State shall not make any
law which takes away or abridges the rights conferred by this Part and any law made in
contravention of this Clause shall, to the extent of the contravention, be void.”8
29. Clause (3) of Article 20 of the Constitution provides that “no person accused of any
offence shall be compelled to be a witness against himself.”9 Explanation of Section 27 casts
burden on the accused to prove that small quantity possessed was intended for personal
consumption and not for sale or distribution. To prove this fact, accused has to examine
himself as witness and the same is in contravention of Clause (3) of Article 20 of the

7
The Narcotic Drugs and Psychotropic Substances Act, 1985, No. 61, Acts of Parliament, 1985.
8
INDIA CONST. art. 13, cl. 2.
9
INDIA CONST. art. 20, cl. 3.

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Constitution of India. Thus, the said Explanation of Section 27 of N.D.P.S. Act is ultra vires
Article 20(3) read with Article 13(2) of the Constitution of India.
30. It is also in contravention of Article 21 of the Constitution as it does not take into
count the life and personal liberty of a person which includes Right to Privacy as well. It
criminalises personal consumption of Narcotic Substance within the private space of a person
even if it is for the religious purpose or is an essential practice to profess a particular religion,
which does not affect any other individual whatsoever, which also does disturb any public
peace and order.

[1.5]. DECRIMINALISATION OF DRUGS

31. As Punjab, Manipur, Mizoram and Assam battle rampant drug abuse among its
populace, a leading independent think-tank involved in legal research strongly recommended
that India should decriminalise drug consumption.

32. The Vidhi Centre for Legal Policy in a report released, said harsh punishments like
10 years of imprisonment has only been counter-productive. Drug abuse can only be
combated by focusing on early detection, proper psychiatric treatment and comprehensive
rehabilitation.

33. The report titled 'From Addict To Convict'10 is based on an analysis of 13,350 cases
registered in Special Courts in the worst affected Punjab under the Narcotics Drugs and
Psychotropic Substances Act between 2013 and 2015 and in depth field work and research. It
said the present policy in India centred on criminalisation to curb drug addiction has failed to
curb traffickers and ended up targeting users and addicts.

34. The blanket ban on narcotic drugs and psychotropic substances has had many
unintended but adverse consequences. It has promoted the use of hard drugs in some cases
and given a fillip to smuggling and black marketing, it said. It says section 39 and 64A of the
Narcotic Drugs and Psychotropic Substances (NDPS) Act allows people caught with small
quantities of drugs, or with drugs for personal consumption, to opt for de-addiction treatment
in a government-approved centre instead of imprisonment or prosecution.

10
Vidhi Centre for Legal Policy, From Addict to Convict: The Working of the NDPS Act (1985) in Punjab,
Vol. 1, 2018.

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35. But responses to RTIs filed clearly establish that between 2013 and 2015, no person
brought before the court in Punjab was directed to de-addiction and rehabilitation through the
courts. Various interviews with judges and lawyers revealed that this provision for diverting
addicts was mostly unknown to the legal practitioners and judges, it said.

36. "Strongly recommend that drug consumption be decriminalised, and a public health
approach be adopted. The law should encourage diverting addicts through the non-punitive
sections of the NDPS Act, regardless of whether they have been found with a small or
intermediate quantity of drugs", said the report.

37. Justice Mukul Mudgal, Former Chief Justice of Punjab and Haryana HC who
was present at the report launch said, "the disparity that has emerged in the report is
distressing. What is more distressing is the ignorance the judges show by sending the addicts
to prisons instead of deaddiction centres. Long spells in prisons lead to interaction with
hardened criminals and makes addicts hardened criminals as well. Commercial drug dealers
are hardly convicted and this is something that needs to be reversed. Deterrence as a theory
does not work."

[1.5.1.] ECONOMICS AND DRUGS

38. At current levels, world heroin consumption (340 tons) and seizures represent an
annual flow of 430-450 tons of heroin into the global heroin market. Of that total, opium
from Myanmar and the Lao People's Democratic Republic yields some 50 tons, while the
rest, some 380 tons of heroin and morphine, is produced exclusively from Afghan opium.
While approximately 5 tons are consumed and seized in Afghanistan, the remaining bulk of
375 tons is trafficked worldwide via routes flowing into and through the countries
neighbouring Afghanistan.
39. According to a research conducted in 15 villages of Jalandhar District last year and
published in the Journal of Family Medicine and Primary Care, every third person in Punjab
is hooked to drugs other than alcohol and tobacco.
40. The Pakistan border has been the main entry point for drugs into Punjab. According to
Commandant R K Arora, a serving officer with the Border Security Force (BSF) and a
professor at the Sardar Patel University of Police, Security and Criminal Justice, the origin of
the drugs lies in Afghanistan which is the world's largest producer of heroin. From there the
drugs reach Pakistan and enter India through the Indo-Pak border

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41. According to the ANC of Mumbai Police, in one year, 53 kgs of charas, 323 kgs of
ganja, 2.1 kgs of heroin, 1,525 LSD dot papers and 33 kg of MD were seized.
42. By any standards, the criminal narcotics industry ranks among the wealthiest and
most powerful multinational business conglomerates in the world, grossing an estimated $500
billion a year. To put this into perspective, U.N. Secretary General Koffi Anan recently
claimed that the illegal narcotics industry is greater than the global oil and gas industry and
twice as large as the overall automobile industry.
43. The above mentioned statistics paint a gloomy picture. The illegal drug trade in India
is thriving and growing strong every year. The NDPS Act has clearly failed to have acted as a
deterrent. Apart from this, worldwide fight against this has also been a failure considering the
fact that drugs are easily available even in secure countries like the USA, which has the
largest defence budget for both internal and external security in the world. The world I, it
seems, is fighting a losing battle. Or rather, the world it seems is fighting a battle that it is
keen on losing. Alternatively, a case can be made to legalise drugs. If drugs are legalised,
there would be an end to end monitoring of how they are distributed and who consumes it.
Along with it, taxes generated in the process also add further impetus for us to so. Also,
necessary guidelines and education about safe usage of drugs can be imparted to the
population resulting in an educated society who knows how, when and in what quantity to
consume drugs in. Most studies show that adolescents consume the most amounts of drugs
and poor and unemployed people come next. If the drugs are legalised and people are
educated about it’s negative effects and the taxes earned through it are put to good use
by creating better and modern infrastructure such as deaddiction centres, India will
become a much better place to live in.
44. To further support our arguments, let us look at the example of cigarettes. They have
no health benefits and directly cause numerous lethal diseases and yet they are legal. They
earn a huge amount of revenue to the government. There are 266.8 million tobacco users in
India as of 2019 and tobacco consumption kills 1 million people in India annually or 9.5% of
all deaths. According to the ministry of home affairs, 2,381 people died due to drug overdose
in 3 years.
45. If these statistics are to be followed closely, tobacco usage is far more harmful than
drugs. Yet, cigarettes are legal in India but drugs are not.
46. The world is now waking up to the positive effects of cannabis. Cannabis has been
legalised in many countries over the world such as Canada, US, etc not just for medicinal
purposes but legal purposes as well. Indian society recognised the positive effects of cannabis

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and various byproducts very early on. It is listed as one of the 5 ingredients that make up the
som ras which was potion which granted the consumer long and healthy life.

[2]. WHETHER SECTION 35 WHICH ATTACHES A PRESUMPTION

OF CULPABILITY AND SECTION 54 WHICH PLACES BURDER OF
PROOF ON THE ACCUSED AS REGAR TO THE POSSESSION OF
ILLICIT ARTICLES, OF THE NDPS ACT, 1985 IS ULTRA VIRES THE
CONSTITUTION OF INDIA?

47. It is humbly submitted before this Hon‘ble Supreme Court that the provisions
of Sections 35 and 54 of the Act being draconian in nature imposing reverse burden on an
accused and, thus, being contrary to Article 14(2) of the International Covenant on Civil
and Political Rights providing for `an accused to be innocent until proved guilty' must be
held to be ultra vires Articles 14 and 21 of the Constitution of India.

48. In criminal cases, the presumption is that the accused is innocent until contrary is
established. It is often said that it is better that ten guilty men should escape than that one
innocent man should suffer. A mere suspicion however, strong cannot take place the
evidence.11

49. Article 14(2) of the International Covenant on Civil and Political Rights providing for
“an accused to be innocent until proved guilty”. The right to the presumption of innocence is
one of the guarantees in relation to legal proceedings contained in Article 14.

50. According to ICCPR, we need to consider the right to the presumption of innocence
when we are working on legislation, a policy or a program that:

 creates an offence that requires the accused to prove or establish the absence of an
element of an offence or requires the accused to establish an exception, exemption,
excuse or other defence,

 creates an offence that contains a presumption and puts an evidential burden on the
accused to rebut the presumption,

11
Sarvan Singh v. State of Punjab, A.I.R. 1957 SC 637.

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 creates an offence that contains a presumption operating against an accused that

cannot be displaced.

51. The presumption of innocence is a fundamental principle of the common law.

52. The UN Human Rights Committee has stated that the presumption of innocence
imposes on the prosecution the burden of proving the charge and guarantees that no guilt can
be presumed until the charge has been proved beyond reasonable doubt.

53. We may notice that Sachs, J. in State v. Coetzee12, explained the significance of the
presumption of innocence in the following terms :-

"There is a paradox at the heart of all criminal procedure in that the more
serious the crime and the greater the public interest in securing convictions of the
guilty, the more important do constitutional protections of the accused become.
The starting point of any balancing enquiry where constitutional rights are
concerned must be that the public interest in ensuring that innocent people are
not convicted and subjected to ignominy and heavy sentences massively
outweighs the public interest in ensuring that a particular criminal is brought to
book. Hence the presumption of innocence, which serves not only to protect a
particular individual on trial, but to maintain public confidence in the enduring
integrity and security of the legal system. Reference to the prevalence and
severity of a certain crime therefore does not add anything new or special to the
balancing exercise. The perniciousness of the offence is one of the givens, against
which the presumption of innocence is pitted from the beginning, not a new
element to be put into the scales as part of a justificatory balancing exercise. If
this were not so, the ubiquity and ugliness argument could be used in relation to
murder, rape, car- jacking, housebreaking, drug-smuggling, corruption . . . the
list is unfortunately almost endless, and nothing would be left of the presumption
of innocence, save, perhaps, for its relic status as a doughty defender of rights in
the most trivial of cases".

54. The Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, is a draconian
law because it places the state in the capacity of a moral guardian vis-a-vis the citizen. In the
West, the NDPS Act provides for stringent punishment for cultivating, possessing or

12
(1997) 2 L.R.C. 593.

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purchasing the "substances" enumerated in it. Sadhus smoking chillums on the ghats of the
Ganga are a fairly common sight. However, the law in its majesty has forbidden the mere
possession of charas and ganja.

55. Generally, a person is punished for acts which cause harm to others, such as murder
or theft. Statutorily created offences like those under the NDPS Act fall under the
category of victimless crimes. There is no harm done to anyone by a person being in
possession of marijuana or partaking of an opium-laced drink and there is no victim. An
offence comprises two elements, the specific action and the guilty mind or dishonest
intention which leads up to it. According to criminal jurisprudence, it is responsibility of the
prosecution to establish both before a person is convicted and punished. However, NDPS Act
dispenses with 'dishonest intention' and Section 35 directs the court to presume the existence
of a culpable mental state for all the offences under the Act.

56. If possession is to constitute an offence, it must mean conscious possession. For

example, if a thing is put in the hand of a sleeping person A, then it cannot be said that A is
in possession of it. Similarly, if something is slipped in the handbag of B, then B cannot be
said to be in possession of it. However, under the NDPS Act knowledge of the contents is
imputed to the accused.

57. Section 54 says that it is to be presumed that a person has committed an offence under
the Act, if he fails to account satisfactorily for the possession of any narcotic drug or
psychotropic substance or any other incriminating article. The larger jurisprudential question
whether the state should criminalise vices needs to be debated. Those who practice vices like
recreational drug use are mentally infirm and need to be protected from self-destruction.

[2.1]. FOREIGN CONVENTIONS AND JUDGEMENTS AGAINST REVERSE

BURDEN

58. Application of international law in a case involving war crime was considered by the
Constitutional Court of South Africa in State v. Basson 13 opining:

The rules of humanitarian law constitute an important ingredient of customary

international law. As the International Court of Justice [("the ICJ)] has stated,
they are fundamental to the respect of the human person and "elementary

13
2004 (6) B.C.L.R. 620 (CC).

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considerations of humanity. The rules of humanitarian law in armed conflicts are

to be observed by all States whether or not they have ratified the Conventions that
contain them because they constitute intransgressible principles of international
customary law. The ICJ has also stressed that the obligation on all governments
to respect the Geneva Conventions in all circumstances does not derive from the
Conventions themselves, but from the general principles of humanitarian law to
which the Conventions merely give specific expression.

59. It was furthermore observed:

When allegations of such serious nature are at issue, and where the exemplary
value of constitutionalism as against lawlessness is the very issue at stake, it is
particularly important that the judicial and prosecutorial functions be undertaken
with rigorous and principled respect for basic constitutional rights. The effective
prosecution of war crimes and the rights of the accused to a fair trial are not
antagonistic concepts. On the contrary, both stem from the same constitutional
and humanitarian foundation, namely the need to uphold the rule of law and the
basic principles of human dignity, equality and freedom.

60. Enforcement of law, on the one hand and protection of citizen from operation of
injustice in the hands of the law enforcement machinery, on the other, is, thus, required to be
balanced.

61. The constitutionality of a penal provision placing burden of proof on an accused, thus,
must be tested on the anvil of the State's responsibility to protect innocent citizens.

62. The court must assess the importance of the right being limited to our society and this
must be weighed against the purpose of the limitation. The purpose of the limitation is the
reason for the law or conduct which limits the right.14 While, however, saying so, we are not
unmindful of serious criticism made by the academies in this behalf.

63. In Glanville Williams, Textbook of Criminal Law15, it is stated:

"Harking back to Woolmington, it will be remembered that Viscount Sankey said

that "it is the duty of the prosecution to prove the prisoner's guilt, subject to the
defence of insanity and subject also to any statutory exception". ... Many statutes

14
S v. Dlamini; S v. Dladla and Others, 1999(7) B.C.L.R. 771 (CC).
15
Glanville Williams, Textbook of Criminal Law (2nd Edn.), page 56.

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shift the persuasive burden. It has become a matter of routine for Parliament, in
respect of the most trivial offences as well as some serious ones, to enact that the
onus of proving a particular fact shall rest on the defendant, so that he can be
convicted "unless he proves" it."

64. The presumption raised in a case of this nature is one for shifting the burden subject to
fulfillment of the conditions precedent therefore.

65. The issue of reverse burden vis-vis the human rights regime must also be noticed. The
approach of the Common Law is that it is the duty of the prosecution to prove a person guilty.
Indisputably this common law principle was subject to parliamentary legislation to the
contrary. The concern now shown worldwide is that the Parliaments had frequently been
making inroads on the basic presumption of innocence. Unfortunately unlike other countries
no systematic study has been made in India as to how many offences are triable in the Court,
where the legal burden is on the accused. In the United Kingdom it is stated that about 40%
of the offences triable in the Crown Court appear to violate the presumption.16

66. In Article 11(1) of the Universal Declaration of Human Rights(1948) it is stated :-

"Everyone charged with a penal offence has the right to be presumed innocent
until proved guilty according to law...."

67. Similar provisions have been made in Article 6.2 of the European Convention for the
protection of Human Rights and Fundamental Freedoms (195) and Article 14.2 of the
International Covenant on Civil and Political Rights (1966).

68. The legal position has, however, undergone a drastic change in the United Kingdom
after coming into force of the Human Rights Act, 1998. The question as to whether on the
face of Article 6.2 of the European Convention for the Protection of Human Rights and
Fundamental Freedoms (1950), the doctrine of reverse burden passes the test of
constitutionality came up for consideration before the House of Lords in Regina v.
Lambert 17 : wherein the following two questions came up for consideration:-

69. "The first is whether a defendant is entitled to rely on convention rights when the
court is hearing an appeal from a decision which was taken before the Human Rights Act,
1998 came into effect. The second is whether a reverse burden provision in section 28(2) and

16
Crim.L.R. 306, The Presumption of Innocence in English Criminal Law, at 309(1996).
17
(2001) U.K.H.L. 37 : (2001) 3 All ER 577 (U.K.).

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(3) of the Misuse of Drugs Act, 1971 is a compatible with the presumption of innocence
contained in article 6.2 of the European Convention for the Protection of Human Rights and
Fundamental Freedoms."

70. Sub-section (2) of Section 28 of the Misuse of Drugs Act, 1971, with which the
House was concerned, reads as under:-

"(2) Subject to sub-section (3) below, in any proceedings for an offence to which
this section applies it shall be a defence for the accused to prove that he neither
knew of or suspected nor had reason to suspect the existence of some fact alleged
by the prosecution which it is necessary for the prosecution to prove if he is to be
convicted of the offence charged."

71. Lord Steyn stated the law thus :-

"Taking into account that section 28 deals directly with the situation where the accused is
denying moral blameworthiness and the fact that the maximum prescribed penalty is life
imprisonment, I conclude that the appellant's interpretation is to be preferred. It follows that
section 28 derogates from the presumption of innocence. I would, however, also reach this
conclusion on broader grounds. The distinction between constituent elements of the crime
and defensive issues will sometimes be unprincipled and arbitrary. After all, it is sometimes
simply a matter of which drafting technique is adopted: a true constituent element can be
removed from the definition of the crime and cast as a defensive issue whereas any definition
of an offence can be reformulated so as to include all possible defences within it. It is
necessary to concentrate not on technicalities and niceties of language but rather on matters
of substance. I do not have in mind cases within the narrow exception "limited to offences
arising under enactments which prohibit the doing of an act save in specified circumstances
or by persons of specified classes or with specified qualifications or with the licence or
permission of specified authorities";

72. Section 28 of the Misuse of Drugs Act, 1971 was read in the manner which was
compatible with convention rights opining that Section 28(2) and (3) create an evidential
burden on the accused.

73. Applicability of the doctrine of compatibility may be somewhat equated (essential

differences although cannot be ignored) with the applicability of the doctrine of
constitutionality in our country.

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74. From all the above arguments, it clear that Section 35 of the NDPS act is ultra vires
the constitution of India.

[3]. WHETHER THE CONSUMPTION OF DRUGS CAN FALL WITHIN

THE PROTECTIVE COVER OF ARTICLE 25?

75. Marijuana and allied drugs have been prevalent in India since 2000 BC. They have
been used for spiritual and healing purposes since time immemorial. If we think about it, they
have been around since the very inception of our society and have manifested themselves to
become an essential part of our culture and our religion.

76. Article 25 guarantees the right to religion to every individual in India. Article 25
states that,

Freedom of conscience and free profession, practice and propagation of

religion

a. Subject to public order, morality and health and to the other provisions
of this Part, all persons are equally entitled to freedom of conscience and the
right freely to profess, practice and propagate religion,

b. Nothing in this article shall affect the operation of any existing law or
prevent the State from making any law,

 regulating or restricting any economic, financial, political or other

secular activity which may be associated with religious practice;

 providing for social welfare and reform or the throwing open of

Hindu religious institutions of a public character to all classes and sections
of Hindus Explanation I The wearing and carrying of kirpans shall be
deemed to be included in the profession of the Sikh religion Explanation II
In sub clause (b) of clause reference to Hindus shall be construed as
including a reference to persons professing the Sikh, Jaina or Buddhist
religion, and the reference to Hindu religious institutions shall be construed
accordingly.18

18
INDIA CONST. art. 25.

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77. It is in reference to the above mentioned article that any practice related to
spiritualism should be judged. A drug when looked at through the lens of drug mafias will
always lead to a negative judgement from every angle. But in the context of India and the
uniqueness of the Indian culture, drugs should be viewed through a lens which is unique to
the Indian society.

78. To further substantiate our claims as to how cannabis and allied drugs are a part of the
Indian culture, the counsel on behalf of the petitioners have the following facts to highlight
the same-

79. A 2019 study conducted by the All India Institutes of Medical Sciences reported that
about 7.2 million Indians had consumed cannabis within the past year.

80. According to the UNODC‘s World Drug report 2016, the retail price of cannabis in
India was US$ 0.10 per gram, the lowest of any country in the world.

81. Cannabis sativa is one of the candidates for the identity of the plant that was used to
prepare soma in Vedic period.[6] Soma was an intoxicating ritual drink that has been highly
praised in the Rigveda (c. 1700–1100 BCE).

82. The five kingdoms of plants, having Soma as their chief, we address;

the darbha, hemp, barley, saha — let them free us from distress.

  Translated by William Dwight Whitney[9], Atharva Veda 11.6.15

83. Sharngadhara Samhita (13th century) also gives medicinal uses of cannabis, and
along with ahiphena (opium poppy), mentions it as one of the drugs which act very quickly
in the body.

84. These historical texts are an integral part of the Indian culture and govern the societal
moral norms and the behaviour of individuals even to this day. It is a part of the very moral
fabric of India and as such cannot be claimed to be against our morals as has been done by
various people in the society. This recent cultural taboo against drugs has stemmed from the
abuse of drugs in the Western countries where drugs are used for recreational purposes.
However, in India, they have been used to bring the user of the drug closed to god and attain
salvation and higher spiritual form. It is the context that matters.

85. The NDPS act was passed and enacted by the parliament in 1985 because India was a
signatory to the 1961 international treaty Single Convention on Narcotic Drugs which classed
cannabis with hard drugs. Even during those negotiations, the Indian delegation opposed its

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intolerance to the social and religious customs of India. India at that point of time was aware
of the cultural heritage that cannabis and allied drugs hold in its culture.

86. The petitioner Kishu Rado, is the head of a religious cult which has been operational
in the State of Maharashtra since 1950‘s. The cult believes in attaining nirvana by a
―technique of transformation‖. This technique of transformation focuses on the individual
liberties as guaranteed by the Constitution of Findia. The cult has never had a case registered
against them since it‘s inception. They have never been a threat to the society. In fact the
masses have joined the cult in huge numbers over the years. The cult as such is entitled to
maintain their private laws and traditions which it thinks are essential and indispensible to
their religion.

87. It is in the interest of the tradition and the culture of India that this petition has been
filed in this Hon‘ble court. It is not about consuming drugs at all. It is on the contrary, about,
attaining nirvana and a higher spiritual form and how crude interpretation not in line with the
Indian culture about certain substances has led to an impediment in attaining it.

88. The right of Sikhs to wear and carry kirpans is recognized as a religious practice in
Explanation 1 of Article 25. What would ordinarily have been looked at as an offensive
object from a normal point of view is held to be religious in nature in the Indian context.
Thus, it further reinforces our point that the context for looking at a particular object/thing is
very important while dealing with matters related to one‘s religion and faith.

89. In a secular state, the state is only concerned with the relation between man to man. It
is not concerned with the relation of man to god. It is left to the individual‘s conscience.
Every man should be allowed to go to heaven in his own way. Worshipping god should be
according to the dictates of one‘s own conscience. 19

90. Man is not answerable to the State for the variety of his religious view.20

91. The right to worship was granted by God for man to worship as he pleased. There can
be no compulsion in law of any creed or practice or any form of worship. 21

92. As has been established by long standing judgements passed by the American courts,
matters related to religion are to be governed by god and his disciples alone. Apart from

19
Downes v. Bidwell, 182 US 244 (1901).
20
United States v. Ballard, 322 US 78 (1944).
21
Cantwall v. Connecticut, 310 US 295 (1931).

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these cases, this very court in S.R. Bommai vs Union of India22 has held that ―secularism is
the basic feature of the Constitution‖.

93. The state being a secular state governing the matters related to the human social life
has a limited role to play in matters governing the religion. We are well aware of the Indian
limitation as far as a religious practice concerned should not be detrimental to public law and
order. It is humbly submitted before this Hon‘ble court that the petitioner and the cult headed
by him have been dutiful citizens of India and have aspired to make this country a better
place to live in. The cult has undertaken a great number of social initiatives to lift people out
of misery. They have been very helpful to the State in uplifting and empowering the poorer
sections of the society, which is the very purpose of the creation of a State. Their only
‗crime‘ was to not have lived up to the Western standards of prohibition of drugs as adopted
by India. They have been following traditions that were lost somewhere and were simply
trying to connect with god and attain salvation.

94. The Hindu religion within it‘s folds has many cults and many subsets. It varies
according to geographical, social, economic and various other factors. It has also seen the
emergence of various gurus and cults who have recognised their own system of belief within
the larger framework of the Hindu religion and have their own traditions essential to the cult
which have been given due recognition by law. This recognition has also been accorded to
them by way of judicial pronouncements by the various courts of this country. One notable
judgment in this regard has been given by this Hon‘ble court itself.

95. In Bramchari Sidheswar Sahai Vs State of West Bengal23, popularly known as the
Ramakrishna Mission case, this Hon‘ble court held that the followers of Ramakrishna, who
are collection of individuals, and who adhere to a system of beliefs as conductive to their
spiritual well being, who have organised themselves collectively and who have an
organisation of definite name as Ramkrishna Math or Mission can be regarded as a religious
denomination within Hindu religion as they satisfy the tests regarding a denomination as
―religious denomination‖, and would ‗therefore‘ be entitled to claim the fundamentals rights
conferred on them under Art.26 of the Constitution.

96. It is in the context of the due recognition accorded to cults as religious denomination
and the rights granted to them that the counsel for the petitioner humbly submit that the

22
A.I.R. 1994 S.C. 1918.
23
(1995) 4 S.C.C. 646.

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petitioner be granted the same rights. The cult has organised itself collectively, have a
definite name and most importantly, adhere to a system of beliefs as conductive to their
spiritual well beings. It is this system of beliefs that has come under attack due to the
draconian NDPS act and the oversight shown by the elected representatives of the people
while enacting such a law. We therefore urge and pray before this Hon‘ble court to rectify
the wrong and grant relief to the petitioners and thousands of other people whose right to
freedom of religion has come under attack and itself leads to the abrogation of the doctrine of
basic structure as pronounced by this very Hon‘ble court and by that effect, to the most
sacred Constitution of India.

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PRAYER

In the light of the issues raised, arguments advanced and authorities cited, may this Hon‘ble
Court be pleased to:

1. To grant that, Section 8(c) of the NDPS Act, 1985 is ultra vires to the Constitution of
India,
2. To grant that, Section 27 of the NDPS Act, 1985 is ultra vires to the Constitution of
India,
3. To grant that, Section 35 of the NDPS Act, 1985 is ultra vires to the Constitution of
India,
4. To grant that, consumption of drugs falls within the protective cover of Article 25 and
Article 26 of the Indian Constitution.

AND/OR
Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience
And for this, the Petitioner as in duty bound, shall humbly pray.

COUNSELS FOR THE PETITIONER

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