LATE LALA DIP CHAND MEMORIAL NATIONAL MOOT COURT COMPETITION, 2021

TEAM CODE: LLDC - 012

Late Lala Dip Chand Memorial National Moot Court Competition, 2021

BEFORE THE HON’BLE

HIGH COURT OF PUNJAB AND HARAYANA
CASE NO. 920 of 2019
&
CASE NO 923 of 2020

IN THE MATTER OF

VEER SINGHANIA………………………………………………………… (PETITIONER No.1)

and
RAHAMAT SAEED…………………………………………………………. (PETITIONER No.2)
VERSUS
STATE OF PUNJAB AND HARYANA……………………………………(RESPONDENT No.1)
and
ENFORCEMENT DIRECTORATE……………………………………….(RESPONDENT No.2)

FOR THE OFFENCES CHARGED UNDER

Sections 363, 366, 367, 368, 369, 370, 371 of the Indian Penal Code and also under
Section 5, 8 of the Immoral Traffic (Prevention) Act, 1956,
Section 4 of the Prevention of Money Laundering Act, 2002 and Section 13 of the
Foreign Exchange Management Act, 1999

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

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Table of Contents

1 LIST OF ABBREVIATIONS
PAGE 5
2 INDEX OF AUTHORITIES
PAGE 6
3 STATEMENT OF JURISDICTION
PAGE 9
4 STATEMENT OF FACTS
PAGE 12
4 ISSUES RAISED
PAGE 13
5
SUMMARY OF PLEADINGS PAGES 14
6
ARGUMENTS ADVANCED PAGES 17
7 ISSUE 1: Whether the Hon’ble High Court of Punjab
and Haryana has jurisdiction to quash the FIR? PAGE 17
1.1 Abuse of process of court in the matter of filing FIR
against Veer and Rahamat Saeed
1.1.1 FIR filed is maliciously
1.1.2 No legal evidence adduced in support of the case

8 Issue 2: Whether the competent court in India has the

jurisdiction to try the present case? PAGE 21

2.1 The Hon’ble Court of Sessions does not have the

jurisdiction to try the instant matter under Sec. 188 of the
Code of Criminal Procedure, 1973

2.1.1 Abuse of Process in the matter of Investigation

Conducted by the Police under Section 188 of the code of
criminal procedure, 1973

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2.1.2 Abuse of Process in the matter of Investigation

Conducted by the Police under Section 189 of the code of
criminal procedure, 1973

9 ISSUE 3: Whether trial of Veer by the court in India

for the same charges that he had already faced in PAGE 23
Dubai as that would amount to Double Jeopardy?
3.1 Veer has been tried and acquitted for the same
offence3
3.2 Veer has been tried and acquitted by a competent
court of jurisdiction
3.3 The trial by the courts in Dubai ended in a
Honourable Acquittal.
3.4 Legal Maxim: Res Judicata Pro Veritate Accipitur
10 ISSUE 4 Whether Veer has committed the alleged
offence punishable under section363, 366, 367, 368, PAGE 28
370,371of the Indian Penal code?

4.1 Section 363 of IPC

4.2 Section 366 of the IPC
4.3 Section 367 of the IPC
4.3.1 ABSENCE OF ACTUS REA
4.3.2 CIRCUMSTANTIAL EVIDENCES
4.33 Last Seen Theory
4.4 Section 368 of the IPC
4.5 Section 369 of the IPC
4.6 Section 370: Trafficking of person
4.7 Section 371 of the IPC: Habitual dealing in slaves.

4.2 Whether Veer has committed the alleged offences

under Section 5,8 of the immoral Traffic (Prevention PAGE 35
Act), 1956?
4.2.1 Section 5 and 8 of the immoral Traffic (Prevention
Act), 1956.
4.2.2 Abuse of Process in the matter of Investigation
Conducted by the Police under Section 13 of the ITPA,
1956

11 ISSUE 5: Whether the alleged transaction through

Bitcoins and its exchange into fiat money is contrary to PAGE 40
the law in India?

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5.1 Bitcoin transactions are not barred in India

5.2 Exchange of Bit coins into fiat money is not contrary

to the law in India

5.2.1 the Indian Contract Act, 1872,

5.3 ARTICLE 19, CONSTITUION OF INDIA

12 ISSUE 6: 6.1 Whether Veer and Rahamat Saeed have
committed the alleged offence punishable under PAGE 46
Section 4 of the Prevention of Money Laundering Act,
2002?
6.1.1 Section 3 of the PMLA, 2002
The amount acquired by Veer is not from the proceeds of a
crime Rahamat Saaed has not committed the alleged
offence of Money Laundering
6.1.2 Abuse of Process in the matter of Investigation
Conducted by the Special
13 6.2 Whether Veer and Rahamat Saeed have committed
the alleged offence punishable under Section 13 of the PAGE 50
Foreign Exchange Management Act, 1999?
6.2 Virtual Currency does not come under the FEMA Act
6.2.1 Section 3 of FEMA, 1999
6.2.2 Section 4 of FEMA, 1999
6.2.2 Section 7 of FEMA, 1999
14 PRAYER
PAGES 55

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LIST OF ABBREVIATIONS

& And
A.P. Andhra Pradesh
AIR All India Report
Anr. Another
Bom CR Bombay Criminal Reporter
IPC Indian Penal Code
Cr.P.C. Code of Criminal Procedure
Cri LJ / Cr. LJ Criminal Law Journal
Del Delhi
Hon’ble Honorable
IPC Indian Penal Code
M.P. Madhya Pradesh
No. Number
Ori. Odisha
Ors. Others
r/w Read with
Retd. Retired
S./Sec. Section
SC Supreme Court
SCC Supreme Court Cases
St. State
U.P. Uttar Pradesh
u/s Under Section
v. Versus

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INDEX OF AUTHORITIES

CASE NAME CITATIONS

1. Gian Singh vs. State of Punjab and Another (2012) 10 SCC 303
2. State of Haryana And Ors vs Ch. Bhajan Lal And Ors 1992 AIR 604
3. Mohammad Ali Al Gitar vs State of U.P 2013 SCC OnLine All 13743
4. State of Karnataka vs L. Muniswamy & Ors AIR 1977 SC1489
5. V. C. Shukla vs State Through C.B.I AIR 1980 SC 962
6. Narinder Singh & Ors vs State of Punjab & Anr 2014 CriLJ 2436
7. Kamal Shivaji Pokarnekar v. State of Maharashtra (2019) 14 SCC 350
8. Vineet Kumar v. State of U.P (2017) 13 SCC 36
9. State of Haryana Vs. Bhajan Lal 1992 SCC (Cri.) 426.
10. State of Karnataka vs. M. Devenderappa and another (2002) 3 SCC 89
11. Vineet Kumar v. State of U.P (2017) 13 SCC 36
12. R. P. Kapur vs The State of Punjab 1960 AIR 862
13. Rabindar Nath Thakur v. Union of India & Ors 1999 (1) BLJR 197
14. Mohammed Haneefa Peeru Mohammed Cril.MC No. 1055 of 2010
vs State of Kerala and Anr
15. Samaruddeen V. Asst. Director of Enforcement 1995 CriLJ 2825
16. Adeep Mathur vs State of U.P MANU/UP/1177/2018
17. Monica Bedi vs State of A.P 2011 CriLJ 427
18. The Institute of Chartered Accountants of India vs.
Vimal Kumar Surana and Ors. 2011) 1 SCC 534
19. Kolla Veera Raghav Rao Vs. Gorantla Venkateswara AIR 2011 SC 641
20. Prabodh K. Mehta v. Charuben K. Mehta 2018 CriLJ 2979
21. Ruchi Majoo v. Sanjeev Majoo AIR 2011 SC 1952
22. Supreme Court in State of Assam v. Raghvan (1972) S.L.R. 344
23. Deputy Inspector General of Police
and Another v. S. Samuthiram (2013) 1 SCC 598
24. Sambasivam v Public Prosecutor, Federation of Malaya [1950] A.C. 458
25. Suresh Babu v State of Kerala 2001 Cr LJ 1483 (Ker)
26. Jaharlal Das v. State of Orissa (1991) 3 SCC 27
27. Om Prakash v State of Haryana 1988 Cr LJ 1606
28. Keshav v State 2001 Cr LJ 1201 (Del)
29. Manoj Suryavanshi vs State of Chhattisgarh (2020) 4 SCC 451
30. State vs Ashish @ Nirmaland Anr. 2019 (1) JCC 483

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31. See Kali Ram v. State of Himachal Pradesh (1973) 2 SCC 808
32. Anjan Kumar Sarma vs State of Assam AIR 2017 SC 2617
33. Smt. Saroj Kumar V. the State of Uttar Pradesh AIR 1973 SC 201
34. Bannu Mal vs King Emperor AIR 1926 Oudh 560
35. In State of Karnataka v. L. Muniswamy & Ors. (1977) 2 SCC 699
36. Roy V.D. v. State of Kerala (2000) 8 SCC 590
37. Mohammad Ali Al Gitar Vs. State of U.P, 2013 (83) ACC 551
38. Niranjan Singh Karam Singh Punjabi v. Jitendra
Bhimraj Bijjayya and Others AIR 1990 SC 1961
39. Mohammad Ali Al Gitar Vs. State of UP 2013 (83) ACC 551
40. State of M.P. Vs. S.B. Johari AIR 2000 SC 665
41. Mt. Choki vs The State AIR 1957 Raj 10
42. Kapoori Devi And Others vs Gopi Chand MANU/SCOR/8679/2013
43. . Varadarajan vs State of Madras AIR 1965 SC 942
44. Gaurav Jain v. Union of India AIR 1997 SC 3021
45. P.K. Unni Kumar v. State of Madras 1974 CriLJ 377
46. China Mallik vs State of Jharkhand 2017 SCC OnLine Jhar 2795
47. Renu Bansal and Ors. vs. U.T. Chandigarh 2010 CriLJ 600
48. In Re: Kamala AIR 1966 Mad 312
49. State vs Santosh Rani
50. Internet and Mobile Association
of India vs. Reserve Bank of India (2020) 10 SCC 274
51. Sadan Singh v. New Delhi Municipal Committee AIR 1989 SC 1988
52. Oudh Sugar Mills Ltd., Etc. vs Union of India and Ors. AIR 1970 SC 1070
53. Mahanivesh Oils and Foods Pvt. Ltd. vs.
Directorate of Enforcement AIR 2016 Delhi 54
54. Rajiv Chanana versus Dy. Director,
Directorate of Enforcement 2015 (316) ELT 422(Del.)
55. Sushil Kumar Katiyal v. Union of India 2016 SCC OnLine ALL 2632
56. B. Rama Raju versus Union of India
(UOI), Ministry of Finance, Department
of Revenue and Ors. [2011] 108 SCL 491 (AP)
57. Rohit Tandon Vs. The Enforcement Directorate AIR 2017 SC 5309
58. Rajbhushan Omprakash Dixit vs. Union of India
and Anr. 2018 (1) JCC 506
59. Guntaiah and Ors. vs. Hambamma, and Ors. AIR 2005 SC 4013
60. State of Haryana and Ors. vs. Ch.
Bhajan Lal and Ors. AIR 1992 SC 604
61. Lalita Kumari vs. Government of
Uttar Pradesh and Ors. 2009 (64) ACC 214
62. Maneka Gandhi vs Union of India (UOI) and Ors. AIR 1978 SC 597
63. Internet and Mobile Association
of India vs. Reserve Bank of India (2020) 10 SCC 274
64. Bhinka & Ors. vs. Charan Singh 1959 Supp (2) SCR 798

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LIST OF BOOKS

• Andrew Ashworth, Principles of Criminal Law

• S.C. Sarkar, The Code of Criminal Procedure
• M.P. Jain‟s Indian Constitutional Law
• Smith & Hogan’s Criminal Law 29 (David Ormerod ed., 13thedn., 2011)
• K.D. Gaur Textbook on Indian Penal Code

LIST OF STATUES

1. The Code of Civil Procedure, 1973

2. Indian Penal Code, 1860
3. The Foreign Exchange Management Act, 1999
4. The Immoral Traffic (Prevention) Act, 1956
5. Prevention of Money Laundering Act, 2002

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STATEMENT OF JURISDICTION

The Honourable High Court is vested with jurisdiction, to hear the present matter under
Section 482 of The Code of Criminal Procedure, 19731

Section 482

Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or
affect the inherent powers of the High Court to make such orders as may be necessary to give
effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise
to secure the ends of justice.

The Counsels for the Petitioners most respectfully submit to this jurisdiction of the
Hon’ble High Court.

1
Code Crim. Proc. § 482

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STATEMENT OF FACTS

BACKGROUND:

1. Veer Singhania and Rohini Singh, aged 30 and 26 respectively, were smitten with love for
each other. Singh and tied the knot on 31st of December 2018, albeit without the blessings
of the family. To celebrate their union, the newlywed couple left for their honeymoon on
the 5th of January 2019. The very idea of honeymoon, made both Veer and Singhania
ecstatic and even more so when the airline offered them a package. Veer was effortlessly,
a very charismatic guy and his charming personality caught the attention of a wealthy oil
baron named Sheikh Abdul Tayyar whose business premises were located in Venice, Italy.
He was on his way home to Dubai.

2. Veer’s search for a venture capital market, owing to the fact that he was a serial
entrepreneur, proved to be beneficial for the Sheikh’s cause as he wished to diversify his
holdings. Tayyar invited Veer and Rohini to pay him a visit at his villa in Dubai. Owing to
the orthodox mindset prevalent in his family, the Sheikh informed Veer that Rohini would
not be able to join them while they are having deliberations regarding the business. Rohini,
who was looking forward to exploring Dubai with the locals, left with the Sheikh’s wives
as he resumed talks with Veer. The sheikh offered to invest on a mobile payment gateway
that Veer was concocting to build and upon acceptance from Veer’s side a sum of
7,000Bitcoins was transferred to Veer’s account for the purpose of starting the project.

TURN OF EVENTS:

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3. When it was time to leave and Veer summoned for his wife, the Sheikh accused him of
being irrational and that his wife was non-existent. When Veer didn’t give in, the Sheikh
called for his three wives who reaffirmed Sheikh’s statements. Out of despair he rushed
towards the cab driver and enquired about Rohini, only to be informed that he was alone
when the he had driven him to the Sheikh’s house alone. Feeling dejected and unable to
bear the absence of his wife whom he loved more than himself, Veer went to the Hotel
where he and Rohini stayed. The only evidence that proved his point of view was the
pictures of him and Rohini in his smartphone.

4. Veer went into a state of despair and was contemplating life now that his beloved wife was
missing. Meanwhile, Rohini’s father Bhisham Singh, Commissioner of Central Excise,
residing in Chandigarh, out of concern for his daughter, who was not answering any of his
calls flew to Dubai to trace her whereabouts. He confronted Veer at the hotel and to Veer’s
shock, accused him of selling his daughter off for flesh trade. He approached the local
police station in Dubai and lodged a complaint against Veer.

TRIAL IN DUBAI COURTS:

5. For the purpose of inquiring into Veer’s antecedents, the Dubai police contacted the
Chandigarh police in India and followed up with the Immigration and Customs Bureau to
verify Rohini’s entry into the UAE. Veer was booked under Article 344of the Penal Code
and also Article 2 of the Federal Law on Combating Human Trafficking. Investigations
regarding the same had been conducted and it had been verified that that they had a record
of Veer and Rohini entering Dubai together as husband and wife on the 5thof January 2019.
The court acquitted Veer and ordered for investigations to be conducted on Sheikh’s
activities as he was found suspicious having the ability to influence the hotel’s staff to
support his side of the story.

INVESTIGATION IN INDIA:

6. Veer decided to fly back to India on the 21st of December 2019 and was arrested by a
special detail of the Chandigarh police the moment he landed at the Indira Gandhi
International Airport and was taken to Chandigarh for questioning. The Chandigarh police
had been acting on the basis of FIR No. 920 of 2019 under Sections 363, 366, 367, 368,

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369, 370, 371 of the Indian Penal Code and also under Section 5, 8 of the Immoral Traffic
(Prevention) Act, 1956 that had been registered at the behest of the Rohini’s mother,
Swapna Singh on December 16, 2019, the day after the Dubai court had acquitted Veer.
Veer applied for, and was granted bail conditioned on a bond of Rs. 20,00,000on 29th
December 2019.

7. For the purpose of paying for legal defence and other needs, Veer decided to withdraw
money from his business account and approached Rahamat Saeed, a currency broker who
also dealt in Bitcoins. He transferred 5000 bitcoins to Rahamat, for which he received Rs.
46,00,000 in cash. As soon as the exchange was made, the Chandigarh police along with
the special team in-charge of economic offences once again arrested Veer and Rahamat for
dealing in Bitcoins. According to the police, such an activity was in contravention of the
foreign trade and exchange laws and various RBI regulations and that it also amounted to
an offence under the Prevention of Money Laundering Act, among other laws that are in
force in India.

CURRENT STATUS:

8. During the course of investigation Rahamat Saeed’s shop was also sealed and the special
team ceased all electronic machinery including computers, external hard drives, USB
sticks, and other documents. Post the raid and arrests, FIR No. 923 of 2019;dated January
1, 2020 were filed under Section 4 of the Prevention of Money Laundering Act, 2002 and
Sections 3, 4, 7 and 13 of the Foreign Exchange Management Act, 1999.Agreieved by the
proceedings, both Rahamat and Veer has approached the Hon’ble High Court of Punjab
and Haryana.

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ISSUES RAISED

I.

Whether the Hon’ble High Court of Punjab and Haryana has jurisdiction to quash the
FIR?

II.

Whether competent court in India has the jurisdiction to try the present case?

III

Whether trial of Veer by the court in India for the same charges that he had already faced
in Dubai as that would amount to Double Jeopardy

IV

Whether Veer has committed the alleged offence punishable under section 363,366, 367,
368, 370,371of the Indian Penal code and Section 5,8 of the immoral Traffic (Prevention
Act), 1956?
V

Whether the alleged transaction through Bitcoins and its exchange into fiat money is
contrary to the law in India?

VI

Whether Veer and Rahamat Saeed have committed the alleged offence punishable under
Section 4 of the Prevention of Money Laundering Act, 2002 and Section 13 of the Foreign
Exchange Management Act, 1999?

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Summary of Pleadings

ISSUE 1: Whether the Hon’ble High Court of Punjab and Haryana has jurisdiction to
quash the FIR?

It is humbly contended before this Honourable Court that Section 482, of the Code of Criminal
Procedure, 1973 deals with Inherent powers of the Court. The code under this section lays out
the provisions for quashing of criminal proceedings. The exercise of power under Section 482
must be to prevent abuse of the process of any court or to secure the ends of justice.

ISSUE 2: Whether the competent court in India has the jurisdiction to try the present
case?

It is humbly submitted before this honourable Court that the facts of the case do not disclose
the sanction given by the Central government under Section 188 of the Code of Criminal
Procedure,1973., and there is no evidence adduced by the Court in the present case. The
responsibility of the investigating agency in India is to expedite the investigation and verify the
original records from Dubai and submit a final report at the earliest. Such procedures have not
been followed by the local police, and cognisance have been taken. Therefore, the Sessions
Court does not have the jurisdiction to try the present case.

ISSUE 3: Whether trial of Veer by the court in India for the same charges that he had
already faced in Dubai as that would amount to Double Jeopardy?

It is pertinent to note that Veer was charged and acquitted in the competent court of Dubai for
the offences of kidnapping and human trafficking. Article 20 (2) embodies a protection against
a second trial and conviction for the same offence Therefore, his trial before the Sessions Court
of Chandigarh amounts to double jeopardy and in violation of Article 20(2) of the Constitution
of India and as well under Section 300 Cr.P.C.

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ISSUE 4: Whether Veer has committed the alleged offence punishable under section
363,366, 367, 368, 370,371of the Indian Penal code and Section 5,8 of the immoral Traffic
(Prevention Act), 1956?

It is humbly submitted before this Hon’ble Court that. Rohini had voluntarily gone with Veer
on her own free will. She is aged 24, the age of majority according to the law and is of sound
mind. Hence her decision to marry Veer and go with him to the honeymoon is from her legal
capacity. There was no eye witness to the incident and the entire offence is alleged merely
based on circumstantial evidences, where the chain of events is not complete. Hence, Veer has
not committed the alleged offence punishable under section 363, 366, 367, 368, 370,371 of
India Penal Code.

It is submitted before the Hon’ble court that the petitioner is not guilty of Procuring, inducing
or taking 1[person] for the sake of prostitution under section 3 of ITPA and not guilty of
Seducing or soliciting for purpose of prostitution as per section 8. The petitioner's wife Ms
Rohini went missing in Dubai and he received 7000 bitcoins as an investment from Sheikh
Tayyar. Hence, no offence can be made under the respective sections.

ISSUE 5: Whether the alleged transaction through Bitcoins and its exchange into fiat
money is contrary to the law in India?

It is contended before the Hon’ble court that the bitcoin transaction is not contrary to the laws
of India, as the apex court has clarified that dealing with virtual currency is not illegal. Despite
this declaration of the court, the Enforcement directorate has seized electronic devices of Mr
Rahamat Saeed (Petitioner no. 2) rendering unable to earn his livelihood by dealing with
Bitcoins. Hence violating Article 19(1)(g) which guarantees right to practice and profess any
occupation, trade, business etc.

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ISSUE 6: Whether Veer and Rahamat Saeed have committed the alleged offence
punishable under Section 4 of the Prevention of Money Laundering Act, 2002 and Section
13 of the Foreign Exchange Management Act, 1999?

It is submitted before the Hon’ble court that the offences under Section 4 of Prevention of
Money Laundering Act and Section 13 of Foreign Exchange Management Act are not made
out against the petitioner. To attract Section 4 of PMLA proceeds of crime must be proved. In
the instant case, Mr Veer has received the Bitcoin as an investment. Section 13 of FEMA cannot
be attracted since Virtual currency does not come under the ambit of Foreign exchange. Hence,
the alleged offences cannot be made out.

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ARGUMENTS ADVANCED

ISSUE 1: Whether the Hon’ble High Court of Punjab and Haryana has jurisdiction to
quash the FIR?

1. Section 4822, under the 37th Chapter of the Code of Criminal Procedure, 1973, titled
‘Miscellaneous’ deals with Inherent powers of the Court. The code under this section lays
out the provisions for quashing of criminal proceedings. Section 482 of Cr.P.C states that

“Saving of inherent powers of High Court- Nothing in this Code shall be deemed to limit or
affect the inherent powers of the High Court to make such orders as may be necessary to
give effect to any order under this Code, or to prevent abuse of the process of any Court or
otherwise to secure the ends of justice”

2. According to Black’s law dictionary, “quash” means ‘to overthrow or abate or vacate or
make void’. In the very nature of its constitution, it is the judicial obligation of the High
Court to undo a wrong in course of administration of justice or to prevent continuation of
unnecessary judicial process. Ex debito justitiae is inbuilt in such exercise; the whole idea
is to do real, complete and substantial justice for which it exists.3

3. The scope of exercise of power under Section 4824 of the Cr.P.C& the categories of cases
where the High Court may exercise its power under it relating to cognizable offences to
prevent abuse of process of any court or otherwise to secure the ends of justice were set out
by the Honourable Supreme Court in State of Haryana v. Bhajan Lal5 -
• Where the allegations made in the first information report or the complaint, even if
they are taken at their face value & accepted in their entirety do not prima facie
constitute any offence or make out a case against the accused.

2
Code Crim. Proc. § 482
3
Gian Singh vs. State of Punjab and Another, (2012) 10 SCC 303
4
Code Crim. Proc. § 482
5
State of Haryana And Ors vs Ch. Bhajan Lal And Ors, 1992 AIR 604

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• Where the allegations made in the F.I.R or complaint are so absurd & inherently
improbable on the basis of which no prudent person can ever reach a just conclusion
that there is sufficient ground for proceeding against the accused.
• Other clause adds (g) where a criminal proceeding is manifestly attended with mala
fide and/or where the proceeding is maliciously instituted with an ulterior motive
for wreaking vengeance on the accused and with a view to spite him due to private
and personal grudge

4. First information report in a criminal case is an extremely vital and valuable piece of
evidence for the purpose of corroborating the oral evidence adduced at the trial. It is the
foundation of the prosecution story and if the FIR is doubtful, then the entire edifice of the
prosecution case is demolished6.
5. It is wrong to say that at the stage of flaming charges the power under Section 482 of the
Cr.P.C. is to be exercised ex-debito Justitiae to prevent an abuse of process of Court. There
can neither be an exhaustive list nor the defined para-meters to enable a High Court to
invoke or exercise its inherent powers. It will always depend upon the facts and
circumstances of each case. An order framing a charge affects a person's liberty
substantially and therefore it is the duty of the court to consider judicially whether the
material warrants the framing of the charge7. It cannot blindly accept the decision of the
prosecution that the accused be. asked to face a trial8.
6. In different situations, the inherent power may be exercised in different ways to achieve its
ultimate objective. Formation of opinion by the High Court before it exercises inherent
power under Section 4829 on either of the twin objectives, (i) to prevent abuse of the
process of any court or (ii) to secure the ends of justice, is a sine qua non10.

6
Mohammad Ali Al Gitar vs State of U.P, 2013 SCC OnLine All 13743
7
State of Karnataka vs L. Muniswamy & Ors, AIR1977SC1489
8
V. C. Shukla vs State Through C.B.I, AIR1980SC962
9
Code Crim. Proc. § 482
10
Narinder Singh & Ors vs State of Punjab & Anr, 2014 CriLJ2436

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Submission (A):

Abuse of the process of court in the matter of filing FIR against Veer and Rahamat
Saeed.

Contention 1:

FIR filed is maliciously instituted due to personal grudge.

7. It is submitted before this Hon’ble Court that the allegations made in the F.I.R, taken at
their face value and accepted in their entirety, do not prima facie constitute a case against
the Petitioner. The uncontroverted allegations raised by the aggrieved party is only to take
revenge out of vendetta since they got married despite the family opposition.

Swapna Singh though an aggrieved party in the present case, had merely filed the FIR based
on assumptions and presumptions and the same cannot be a ground to proceed with the
investigation. The criminal prosecution initiated against the petitioner was ulteriorly
motivated. Further, the FIR does not make out any offence against the petitioner.

8. Supreme Court decision on Kamal Shivaji Pokarnekar v. State of Maharashtra11, wherein

it was held that –
“Quashing the criminal proceedings is called for only in a case where the complaint does not
disclose any offence, or is frivolous, vexatious, or oppressive. If the allegations set out in the
complaint do not constitute the offence of which cognizance has been taken by the Magistrate,
it is open to the High Court to quash the same. It is not necessary that a meticulous analysis of
the case should be done before the Trial to find out whether the case would end in conviction
or acquittal.”

9. Inherent power given to the High Court under Section 482 Cr.P.C. is with the purpose and
object of advancement of justice. In case solemn process of Court is sought to be abused
by a person with some oblique motive, the Court has to thwart the attempt at the very
threshold12. The Court cannot permit a prosecution to go on if the case falls in one of the
categories as illustratively enumerated by this Court in State of Haryana Vs. Bhajan Lal13.

11
Kamal Shivaji Pokarnekar v. State of Maharashtra, (2019) 14 SCC 350
12
Vineet Kumar v. State of U.P, (2017) 13 SCC 369,
13
State of Haryana Vs. Bhajan Lal, 1992 SCC (Cri.) 426.

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Judicial process is a solemn proceeding which cannot be allowed to be converted into an

instrument of operation or harassment14. When there are materials to indicate that a criminal
proceeding is manifestly attended with mala fide and proceeding is maliciously instituted
with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction
under Section 482 Cr.P.C15.

Contention 2:

No legal evidence adduced in support of the case.

10. It is humbly contended that the complaint has been filed based on assumptions and
presumptions. There is either no legal evidence adduced in support of the case or evidence
adduced clearly or manifestly fails to prove the charge16.
11. The allegations raised in the complaint come under the purview of hearsay evidence. In the
case of Rabindar Nath Thakur v. Union of India &Ors17, the Patna High Court that,
“Evidence of a statement made to a witness by a person who is not himself called as witness
may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence
is to establish the truth of what is contained in the statement.”

14
State of Karnataka vs. M. Devenderappa and another, (2002) 3 SCC 89
15
Vineet Kumar v. State of U.P, (2017) 13 SCC 369,
16
R. P. Kapur vs The State of Punjab on 25 March, 1960 AIR 862

17
Rabindar Nath Thakur v. Union of India & Ors, 1999 (1) BLJR 197

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ISSUE 2: Whether competent court in India has the jurisdiction to try the present case?

Submission (A):

The Hon’ble Court of Sessions does not have the jurisdiction to try the instant matter
under Sec. 188 of the Code of Criminal Procedure, 1973

Contention 1:

Abuse of Process in the matter of Investigation Conducted by the Police under Section
188 of the code of criminal procedure, 1973

The commencement of investigation in an offence committed outside India is subject to the

following conditions:

12. Section 18818: Offence committed outside India.

When an offence is committed outside India-
(a) by a citizen of India, whether on the high seas or elsewhere; he may be dealt with in respect
of such offence as if it had been committed at any place within India at which he may be found:
Provided that, notwithstanding anything in any of the preceding sections of this Chapter, no
such offence shall be inquired into or tried in India except with the previous sanction of the
Central Government.
13. The object of insisting the sanction of Central Government appears to prevent the accused
person being tried over again for the same offence in two different places. This object is
secured by refusing to sanction the prosecution against him if he has been already tried in
a foreign country19.
14. Samaruddeen V. Asst. Director of Enforcement20 held that the court had no jurisdiction to
direct investigation or trial of a crime committed by person in a foreign country without the
sanction of the Central Government.
15. It is to be noted that the competent courts in Dubai had already conducted a full-fledged
trial, where the courts have acquitted Veer based on the facts and evidences. FIR NO 923
is dealing with the offence for which he was once tried by a competent court. Hence, the
Conditions Requisite for an Investigation under Section 188 C.r.P.C are not satisfied.

18
Code Crim. Proc. § 188
19
Mohammed Haneefa Peeru Mohammed vs State of Kerala and Anr., Cril.MC No. 1055 of 2010
20
Samaruddeen V. Asst. Director of Enforcement, 1995 CriLJ 2825

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Contention 2: Abuse of Process in the matter of Investigation Conducted by the Police

under Section 189 of the code of criminal procedure, 1973

16. Section 18921 of the Code of Criminal Procedure reads as follows;

"Receipt of evidence relating to offences committed outside India -

When any offence alleged to have been committed in a territory outside India is being inquired
into or tried under the provisions of Section 188, the Central Government may, if it thinks fit,
direct that copies of depositions made or exhibits produced before a judicial officer in or for
that territory or before a diplomatic or consular representative of India in or for that territory
shall be received as evidence by the Court holding such inquiry or trial in any case in which
such Court might issue a commission for taking evidence as to the matters to which such
depositions or exhibits relate."

It is contended that the facts of the case do not disclose the sanction given by the Central
government, and there is no evidence adduced by the Court in the present case. The
responsibility of the investigating agency in India is to expedite the investigation and verify the
original records from Dubai and submit a final report at the earliest. Such procedures have not
been followed by the local police, and cognisance have been taken.

17. It is pertinent to note that the trial cannot proceed beyond the cognizance stage without the
previous sanction of the Central Government. The Magistrate is, therefore, free to proceed
against the accused in respect of offences having been committed in India and to complete
the trial and pass judgment therein, without being inhibited by the other alleged offences
for which sanction would be required22.

21
Code Crim. Proc. § 189
22
Adeep Mathur vs State of U.P, MANU/UP/1177/2018

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ISSUE 3: Whether trial of Veer by the court in India for the same charges that he had
already faced in Dubai as that would amount to Double Jeopardy?

Double jeopardy is a procedural defence that forbids a defendant from being tried twice for the
same crime for the same set of facts. The expression is defined in Black’s Law Dictionary as a
“second prosecution after the first trial for the same offence. The roots of the doctrine can be
found in the well-established maxim of the English Common law, Nemo debet bis
vexari, meaning that a man must not be put twice in peril for the same offence.

18. Double Jeopardy under the Constitution:

Article 20 (2)23 embodies a protection against a second trial and conviction for the same
offence. A similar guarantee is to be found in almost all civilised societies governed by rule of
law24. The well-known maxim `nemo delset bis vexari pro eadem causa' embodies the well-
established common-law rule that no one should be put on peril twice for the same offence. It
has been enshrined as a part of the Fundamental Right which guarantees to the people certain
basic human rights and freedoms, inter alia freedom against double jeopardy. Accordingly, the
provision apotheosizes the principle that a person cannot be tried twice for the same offence
by an equally competent court.

19. Double Jeopardy under the C.r.P.C

Section 30025 of the Criminal Procedure Code provides that a person who is once tried by a
Court of competent jurisdiction for an offence and acquitted for such offence while such
conviction or acquittal remains in force, would not be tried again for the same offence.

Further, Explanation (a) of Section 426 of the Indian Penal Code provides that the word
"offence" includes every act committed outside India which, have an effect of depriving an
Indian citizen of the fundamental right available to him under Article 20 (2)27 of the
Constitution and to any person under Section 300 of the Code of Criminal Procedure Code.

20. Double Jeopardy under Section 2628 of the General Clause Act,1897

23
INDIA CONST. art. 20(2)
24
Monica Bedi vs State of A.P, 2011 CriLJ 427
25
Code Crim. Proc. § 300
26
The General Clauses Act, 1897, § 26, NO. 10, Acts of parliament , 1897, (India)
27
INDIA CONST. art. 20(2)
28
THE GENERAL CLAUSES ACT, 1897

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Where an act constitutes offences under different laws and are punishable with different laws,
the person accused of such act shall be tried and convicted under either of the laws but shall
not be liable for prosecution twice29.

21. SUBMMISSION (A):

Veer has been tried and acquitted for the same offence

It is pertinent to note that Veer was charged and acquitted in the competent court of Dubai for
the offences of:

Chapter 2 on VIOLATION OF FREEDOM

Article 344 Shall be sentenced to imprisonment, whoever illegally kidnaps, arrests, detains or
deprives from freedom, a person by any means whatsoever and whether by himself or through
the intermediary of others.

i) Article (2) on FEDERAL LAW FOR COMBATING HUMAN TRAFFIKKING

Whoever commits any of the human trafficking crimes provided for in Article (1) bis of this
Law shall be punished by temporary imprisonment for a term of no less than five years, and a
fine of no less than one hundred thousand AED.

Arguendo, he has been charged under section 363, 366, 367, 368, 370,371 of the Indian Penal
code. It is humbly submitted that above mentioned offences are identical to the offence of
section 363 and section 370 respectively.

Section 30030 of the Code of Criminal Procedure, 1973 abounds with two essential legal
principles called ‘autrefois convict’ and ‘autrefois acquit.

22. Clause 1 of Section 300 of C.r.P.C states that any person who has once been tried by a
Court of competent jurisdiction for an offence and convicted or acquitted of such offence
shall, while such conviction or acquittal remains in force, not be liable to be tried again for
the same offence, nor on the same facts for any other offence for which a different charge

29
The Institute of Chartered Accountants of India vs. Vimal Kumar Surana and Ors., (2011) 1 SCC 534

30
Code Crim. Proc. § 300

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from the one made against him might have been made under sub- section (1) of section
221.

It is contended that Veer has been charged under Section 366, 367, 368. 371 based on the same
facts and matter as dealt in the Dubai courts. These offences which are very grave in nature is
charged merely based on false allegations by the complainant.

23. The Hon’ble Supreme court in the case of Kolla Veera Raghav Rao Vs. Gorantla
Venkateswara31 Raohas held that Section 300(1) of Cr.P.C. is wider than Article 20(2)32 of
the Constitution. While, Article 20(2) of the Constitution only states that 'no one can be
prosecuted and punished for the same offence more than once', Section 300(1) of Cr.P.C.
states that no one can be tried and convicted for a different offence but on the same facts.
In the present case, although the offences are different but the facts are the same.
Hence, Section 300(1) of Cr.P.C. applies. Consequently, the prosecution was barred
by Section 300(1) of Cr.P.C."

SUBMISSION (B): Veer has been tried and acquitted by a competent court of
jurisdiction.

It is humbly submitted that the Veer has been tried and acquitted by a competent court of
jurisdiction at Dubai. Therefore, his trial before the Sessions Court of Chandigarh amounts to
double jeopardy and in violation of Article 20(2)33 of the Constitution of India and as well
under Section 300 Cr.P.C.34

24. Hon’ble Full Bench of the Bombay High Court while delivering a decision in the
case of Prabodh K. Mehta v. Charuben K. Mehta on March35 1, 2018, held that –
‘Conviction of an Indian citizen by Foreign Court for the offence committed in that country
can be taken note of by the Courts or Authorities in India. However, it cannot be said that the
same will be ipso facto binding on such courts and authorities in India and they must exercise
their discretion considering facts of the case and variety of factors involved therein.’……….

31
Kolla Veera Raghav Rao Vs. Gorantla Venkateswara, AIR2011SC641
32
INDIA CONST. art. 20(2)
33
INDIA CONST. art. 20(2)

34
Code Crim. Proc. § 300
35
Prabodh K. Mehta v. Charuben K. Mehta, 2018 CriLJ 2979

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25. Depriving an Indian citizen of the fundamental right available to him under Article 20 (2)
of the Constitution and to any person under Section 300 of the Code of Criminal Procedure
Code. In addition, it would be against the public policy and principle of comity of Nations.

Principle of Comity of Nations:

26. In Ruchi Majoo v. Sanjeev Majoo36it was held that it is also the duty of an Indian court to
respect the judicial decisions of another country on the same subject matter. It would wholly
depend on the facts and circumstances of each case, in determining the importance of a
foreign decree. The principle is known as “Comity of Nations” from where the principle of
“Comity of Courts” has been derived. According to Black’s Law Dictionary “Judicial
Comity”, which can also be understood as “Comity of Courts”, as the principle in
accordance with which the courts of one state or jurisdiction will give effect to the laws
and decisions of another, not as a matter of obligation, but out of deference and respect.

SUBMISSION (C): The trial by the courts in Dubai ended in a Honourable Acquittal.

It is humbly submitted that Veer was acquitted after a full-fledged trial. As per the facts of the
case (para 5 and 6) a lengthy investigation was conducted by the local police of Dubai which
was of no avail. He was finally acquitted by the court after a detail hearing of arguments and
evidences.

27. Supreme Court in State of Assam v. Raghvan, (1972) S.L.R. 34437, is relied on by both the
sides on the meaning of honourable acquittal as well as to show whether in the facts and
circumstances of the present case petitioner can be said to have been honourably acquitted.

In the present case, Veer is acquitted after giving full consideration to the evidence placed on
record and if the court is of the opinion that prima facie no case is made out against the accused,
it may very well come within the ambit of the term “Honourable acquittal”.

28. What is honourable acquittal, was considered by this Court in Deputy Inspector General
of Police and Another v. S. Samuthiram, (2013) 1 SCC 59838, in which this Court held as
under: -The meaning of the expression "honourable acquittal" is when the accused is

36
Ruchi Majoo v. Sanjeev Majoo, AIR 2011 SC 1952
37
Supreme Court in State of Assam v. Raghvan, (1972) S.L.R. 344
38
Deputy Inspector General of Police and Another v. S. Samuthiram, (2013) 1 SCC 598

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acquitted after full consideration of prosecution evidence and that the prosecution had
miserably failed to prove the charges levelled against the accused, it can possibly be said
that the accused was honourably acquitted.

SUBMISSION (D: Legal Maxim: Res Judicata Pro Veritate Accipitur

The maxim Res Judicata Pro Veritate Accipitur signifies that when a matter has been finally
resolved by a competent court, the same matter cannot be relitigated once again. It is to be
noted that this principle is the creation of judicial interpretation and decisions.

29. Supreme Court has relied on the famous observations of Lord Mac Dermott in the case
of Sambasivam v Public Prosecutor, Federation of Malaya39in which he said:
“The effect of the verdict of acquittal pronounced by a competent lawful charge and a lawful
trial is not completely stated by saying that the person accused cannot be tried again for the
same offence. To that it must be added that the verdict is binding and conclusive in all
subsequent proceedings between the parties for adjudication.”
30. A blend of doctrine of res judicata and doctrine of autrefois acquit has been provided
in Section 4040 of the Indian Evidence Act, 1872.

“The existence of any judgment, order or decree which law prevents any court from taking the
cognizance of a suit or holding a trial, is a relevant fact when the question is whether such court
ought to take cognizance of such suit or to hold such trial.”

In view of the relation of this section to the doctrine of autrefois acquit and autrefois convict
it can be emphasized that where a person is tried for an offense wherein, he is either convicted
or acquitted, in case of his being tried subsequently for the same offense, the evidence of the
previous trial will be admissible under section 4041 to prevent such person from being so tried.

39
Sambasivam v Public Prosecutor, Federation of Malaya, [1950] A.C. 458
40
The Indian Evidence Act, 1872,§ 40, No.1,Acts of Parliament,1872(India)
41
The Indian Evidence Act, 1872,§ 40, No.1,Acts of Parliament,1872(India)

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ISSUE 4: Whether Veer has committed the alleged offence punishable under section
363,366, 367, 368, 370,371of the Indian Penal code?

3.1 Section 36342 of IPC

It is humbly submitted before this Hon’ble Court that Veer (hereinafter referred to as the
petitioner) cannot be charged under section 363 of India Penal Code (hereinafter referred to as
IPC). It is pertinent to refer to Sec 36043 of IPC which elucidates the essentials of kidnapping.
Ingredients. — This section requires two things: —
(1) Conveying of any person beyond the limits of India.
(2) Such conveying must be without the consent of that person

31. In the case of Suresh Babu v State of Kerala, 2001 Cr LJ 1483 (Ker)44, where a girl of about
16 years old was in love with the accused and the evidence showed that she left her home
on her own accord and joined the accused for getting their marriage registered and lived as
husband and wife thereafter. Conviction of the accused was set aside because it could not
be said that he kidnapped her.

The person who is kidnapped can be a major or minor to attract the provision of this section.
In the present case, the victim Rohini Singh, aged 24 is of the age of majority according to
the law to which she is subject, and is of sound mind. Hence her decision to marry Veer and
go with him to the honeymoon is from her legal capacity. Reaching the destination in a foreign
country is not relevant for the accomplishment of this crime. It is humbly submitted before this
Hon’ble Court that the accused is not guilty of committing the alleged offence of kidnapping
u/s 36345of IPC.

32. This Court in Jaharlal Das v. State of Orissa46, has held that even if the offence is a
shocking one, the gravity of offence cannot by itself overweigh as far as legal proof is
concerned. In cases depending highly upon the circumstantial evidence, there is always a
danger that the conjecture or suspicion may take the place of legal proof. The court has to be
watchful and ensure that the conjecture and suspicion do not take the place of legal proof. The
court must satisfy itself that various circumstances in the chain of evidence should be

42
Pen. Code. § 363
43
Pen. Code. § 360
44
Suresh Babu v State of Kerala, 2001 Cr LJ 1483 (Ker)
45
Pen. Code. § 363
46
Jaharlal Das v. State of Orissa, (1991) 3 SCC 27
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established clearly and that the completed chain must be such as to rule out a reasonable
likelihood of the innocence of the accused.

3.2 Section 36647 of the IPC

• Whoever kidnaps or abducts any woman,

• with intent that she may be compelled, or knowing it to be likely that she will be compelled,
to marry any person against her will, or in order that she may be forced or seduced to illicit
intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse,
• shall be punished with imprisonment of either description for a term which may extend to
ten years, and shall also be liable to fine;

3.3 Section 36748of the IPC

• Whoever kidnaps or abducts any person in order that such person may be subjected,
• or may be so disposed of as to be put in danger of being subject to grievous hurt, or slavery,
or to the unnatural lust of any person, or knowing it to be likely that such person will be so
subjected or disposed of,
• shall be punished with imprisonment of either description for a term which may extend to
ten years, and shall also be liable to fine.

Contention 1: ABSENCE OF ACTUS REA

32. It is pertinent to note that the offence u/s 36649 and 36750 in itself cannot be proved since
there is no kidnapping or abduction. The same is discussed under section 36351 of IPC. In
the case of Om Prakash v State of Haryana, 1988 Cr LJ 1606 52 the victim aged about 18
years, evidence showed that she had voluntarily gone with the accused and of her own free
will, acquittal because the offence not made out53. In the present case, both Veer and Rohini
are lawfully wedded couples and had gone to Dubai as part of their honeymoon where such

47
Pen. Code. § 366
48
Pen. Code. § 367
49
Pen. Code. § 366
50
Pen. Code. § 367
51
Pen. Code. § 363
52
Om Prakash v State of Haryana, 1988 Cr LJ 1606
53
Keshav v State, 2001 Cr LJ 1201 (Del)

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unfortunate incidents had happened. Question of consent does not even arise since the
victim being a major had voluntarily gone with the accused.

Contention 2: CIRCUMSTANTIAL EVIDENCES:

33. In the present case, there is no eyewitness to whether the victim was forced or seduced to
illicit intercourse or was subjected to grievous hurt as alleged u/s 366 and 367 of the IPC.
The ingredients present in section 366 and 367 if not fulfilled. There was no eye witness to
the incident and the entire offence is alleged merely based on circumstantial evidences,
where the chain of events is not complete54. There is no instance in the case which leads
exclusively to the conclusion that the petitioner was guilty of committing the offence.
34. It is a settled position in law that suspicion cannot take the place of legal proof for
sometimes, unconsciously it may happen to be a short step between moral certainty and the
legal proof. At times it can be a case of "may be true." But there is a long mental distance
between "may be true" and "must be true" and the same divides conjunctures from sure
conclusions. Therefore, on lack of merits and conclusive evidence the present leave petition
stands dismissed55.
35. It is also well-settled principle that in criminal cases, if two views are possible on evidence
adduced in the case, one binding to the guilt of the accused and the other is to his innocence,
the view which is favourable to the accused, should be adopted. This principle has a special
relevance in cases wherein the guilt of the accused is sought to be established by
circumstantial evidence56

Contention 2: Last Seen Theory

36. The law with regard to last seen theory came up for consideration in various cases and has
been succinctly elucidated in the case of Anjan Kumar Sarma vs State of Assam57wherein
the Apex Court observed as under: -

"The circumstance of last seen together cannot by itself form the basis of holding the Accused
guilty of the offence. In the absence of proof of other circumstances, the only circumstance of
last seen together and absence of satisfactory explanation cannot be made the basis of

54
Manoj Suryavanshi vs State of Chhattisgarh, (2020)4SCC451
55
State vs Ashish @ Nirmaland Anr., 2019(1)JCC483

56
See Kali Ram v. State of Himachal Pradesh, (1973) 2 SCC 808
57
Anjan Kumar Sarma vs State of Assam, AIR 2017 SC 2617

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conviction. The other circumstances relied upon by the prosecution were not proved and that
the circumstances of last seen together along with the absence of satisfactory explanation were
not sufficient for convicting the Accused."

3.4 Section 36858 of the IPC

• Whoever, knowing that any person has been kidnapped or has been abducted,

• Wrongfully conceals or confines such person,

• Shall be punished in the same manner as if he had kidnapped or abducted such person with
the same intention or knowledge, or for the same purpose as that with or for which he
conceals or detains such person in confinement59.

37. It is contended that in the present case, the petitioner has been charged for kidnapping as
well as assisting in kidnapping. This section does not apply to the principal offender but to
those persons who assist him in concealing a kidnapped or abducted person. It refers to
some other party who assists in concealing any person who has been kidnapped. A
kidnapper cannot be convicted under this section60.

3.5 Section 36961 of the IPC

Whoever kidnaps or abducts any child under the age of ten years;
• With the intention of taking dishonestly any movable property from the person of such
child,
• Shall be punished with imprisonment of either description for a term which may extend to
seven years, and shall also be liable to fine.

38. The above-mentioned offences; Section 368 and 369 cannot be attracted in the present case.
Section 369 pertains to a child under the age of 10 years which is in dispute with the facts
of the case. In a criminal case, the veiled object behind a lame prosecution, the very nature

58
Pen. Code. § 368
59
Smt. Saroj Kumar V. the state of up AIR 1973 SC 201
60
Bannu Mal vs King Emperor, AIR1926Oudh560
61
Pen. Code. § 369

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of the material on which the structure of the prosecution rests would justify the High Court
in quashing the proceeding in the interest of justice62.

39. In the case of Roy V.D. v. State of Kerala,63 observed thus: -

Where criminal proceedings are initiated based on illicit material collected on search and arrest
which are per se illegal and vitiate not only a conviction and sentence based on such material
but also the trial itself, the proceedings cannot be allowed to go on as it cannot but amount to
abuse of the process of the court; in such a case not quashing the proceedings would perpetuate
abuse of the process of the court resulting in great hardship and injustice to the accused. In our
opinion, exercise of power under Section 48264 Cr.P.C.to quash proceedings in a case like the
one on hand, would indeed secure the ends of justice."

40. First information report in a criminal case is an extremely vital and valuable piece of
evidence for the purpose of corroborating the oral evidence adduced at the trial. It is the
foundation of the prosecution story and if the FIR is doubtful, then the entire edifice of the
prosecution case is demolished65.
41. In Niranjan Singh Karam Singh Punjabi v. Jitendra BhimrajBijjayya and Others 66etc.
reported in (1990) 4 SCC 76, after considering the provisions of Sections 227 and 228, Cr.P.C.,
the Court posed a question, whether at the stage of framing the charge, the trial court should
marshal the materials on the record of the case as he would do on the conclusion of the trial.
The Court held that at the stage of framing the charge inquiry must necessarily be limited to
deciding if the facts emerging from such materials constitute the offence with which the
accused could be charged.

3.5 Section 37067: Trafficking of person

Whoever, for the purpose of exploitation, (a) recruits, (b) transports, ( c) harbours, (d) transfers,
or (e) receives, a person or persons, by—

• using threats, or

62
In State of Karnataka v. L. Muniswamy & Ors., (1977) 2 SCC 699
63
Roy V.D. v. State of Kerala, (2000) 8 SCC 590
64
Code Crim. Proc. § 482
65
Mohammad Ali Al Gitar Vs. State of U.P, 2013 (83) ACC 551

66
Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjayya and Others, AIR 1990 SC 1961
67
Pen. Code. § 370

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• using force, or any other form of coercion, or

• by abduction, or
• by practising fraud, or deception, or
• by abuse of power, or
• by inducement, including the giving or receiving of payments or benefits, in order to
achieve the consent of any person having control over the person recruited, transported,
harboured, transferred or received, commits the offence of trafficking.

41. This is a case where there is no evidence against the accused-petitioners. The testimony of
the aggrieved party is merely hearsay evidence. From the evidence in record, and no stretch
of imagination this offence cannot in itself be attracted in the case.
In the case of Mohammad Ali Al Gitar Vs. State of UP68 it was held that in view of the above
appreciation of evidence on record it is clearly established that the prosecution has miserably
failed to prove the allegations levelled against any of the appellant in-charges under which they
have been convicted by the learned trial Court. Thus, their conviction u/s. 370 IPC cannot be
sustained.

42. The Hon'ble Apex Court in the case of State of M.P. Vs. S.B. Johari69and others has also
held as under: -

It is settled law that at the stage of framing the charge, the Court has to prima facie consider
whether there is sufficient ground for proceeding against the accused. The Court is not
required to appreciate the evidence and arrive at the conclusion that the materials produced
are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie
case is made out for proceeding further then a charge has to be framed. The charge can be
quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the
accused, even if fully accepted before it is challenged by cross examination or rebutted by
defence evidence, if any, cannot show that accused committed the particular offence. In
such case, there would be no sufficient ground for proceeding with the trial.

68
Mohammad Ali Al Gitar Vs. State of UP, 2013 (83) ACC 551
69
State of M.P. Vs. S.B. Johari, AIR 2000 SC 665

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43. It is also pertinent to note that Veer was released on a bail bond, even though the alleged
offences are non bailable. In the matter of Mst. Chokhi v. State70 , it has been the opinion of
courts at large that where the prosecution is unable to persuade the court that there is any
reasonable ground for believing that the accused person is guilty of commission of a Non-
Bailable offence, in such case the accused person should be released on Bail.

3.6 Section 37171 of the IPC: Habitual dealing in slaves.

• Whoever habitually imports, exports, removes, buys, sells, traffics or deals in slaves,
• shall be punished with imprisonment for life, or with imprisonment of either description
for a term not exceeding ten years, and shall also be liable to fine.

44. It is humbly submitted that false allegations had been levelled against the petitioner. In fact,
his wife had never been abducted/ kidnapped. They had come to Dubai to enjoy their
honeymoon. These false allegations are alleged out of revenge by the complainant.
45. In the case of Kapoori Devi And Others vs Gopi Chand72, where the petitioner was charged
under Sections 363, 365, 371, and 372of the Indian Penal Code, 1860. The Complainant
had levelled allegations against the petitioners qua abduction/ kidnapping of his wife and
children by. In police enquiry, the allegations levelled by the complainant against the
petitioners were found to be false. The court held that in the facts and circumstances of the
present case, it appears that continuation of criminal proceedings against the petitioners
would be nothing but an abuse of process of law.

70
Mt. Choki vs The State, AIR 1957 Raj 10
71
Pen. Code. § 371
72
Kapoori Devi And Others vs Gopi Chand, MANU/SCOR/8679/2013

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4.2 Whether Veer has committed the alleged offences under Section 5,8 of the immoral
Traffic (Prevention Act), 1956?

4.2.1 Section 5 of the immoral Traffic (Prevention Act), 1956

It is humbly submitted before this Hon’ble court that the petitioner has not committed the alleged
offence under section 5 of The Immoral Traffic Prevention Act (hereinafter referred to as
ITPA). The essential components of section 573 are:

(a) Procuring another person for the purpose of prostitution without their consent.

(b) Inducing another person to become the inmate of a Brothel for the purposes of prostitution.

(c) Taking or attempting to take a person to another place to carry on prostitution

(d) Causing or inducing a person to carry on prostitution.

46. Section 5of ITPA concerns itself and punishes a person for procuring another person for
the purposes of prostitution or inducing another to become inmate of a brothel, or taking away
a person for the purposes of carrying on prostitution. It is contended that in the present case the
petitioner along with his wife Ms Rohini had taken a vacation to Dubai. The couple encountered
Sheikh Abdul Tayyar, where Veer being a serial entrepreneur was successfully able to pitch
his business ideas and secure an investment of 7000 bitcoins.

In the Chamber's Twentieth Century Dictionary, procurement refers to: “obtain for one's self
or for another, to bring about, to attract, to urge earnestly, to pander, and pimp.”

46. In S. Varadarajan vs State of Madras74the court while pondering on the what constitutes
“taking” opined that the prosecutrix accompanying the appellant all along is quite
consistent with prosecutrix’s own desire to be the wife of the appellant in which the desire
of accompanying him wherever he went was of course implicit. In these circumstances we
find nothing from which an inference could be drawn that the appellant had been guilty of
taking away the prosecutrix …. Something more has to be shown in a case of this kind and
that is some kind of inducement held out by the accused person or an active participation

73
The Immoral Traffic Prevention Act, 1956, § 5, No. 104, Acts of Parliament, 1956 (India).
74
S. Varadarajan vs State of Madras, AIR 1965 SC 942

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by him…. No doubt, the part played by the accused could be regarded as facilitating the
fulfilment of the intention of the girl. That part, in our opinion, falls short of an inducement
to the minor to slip out of the keeping of her lawful guardian and is, therefore, not
tantamount to "taking".

47. Ergo, it can be believed that the petitioner had neither procured nor taken away his wife to
Dubai without her consent. Ms Rohini was a major, capable of understanding her actions.
It is an undisputed fact that the petitioner had pictures of them having a pleasant time in
Dubai. Further in order to hold a person liable under this section it needs to be proved that
another person was pushed into prostitution or was forced into becoming an inmate of a
brothel:

Section 2 (f)75of ITPA states:

"Prostitution" means the act of a female offering her body for promiscuous sexual intercourse
for hire whether in money or in kind."

Section 2 (a)76 states that:

"Brothel" includes any house room or place or any portion of any house room or place, which
is used for purposes of prostitution for the gain of another person or for the mutual gain of two
or more prostitutes.

48. In Gaurav Jain v. Union of India77,it was held that: “The essential ingredient of “brothel”
as defined in Section 2(a) of the Act is a place being used for the purpose of sexual
exploitation or abuse. The phrase “for the purpose of” indicates that the place being used
for the purpose of prostitution may be a brothel provided a person uses the place and asks
for girls, where the person is shown girls to select from and where one does engage or offer
her body for promiscuous sexual intercourse for hire. All that is essential to prove that a
girl/lady should be a person offering her body for promiscuous sexual intercourse for hire.

49. An examination of the definition of "brothel" would undoubtedly require the satisfaction
of the ingredient of the place being used for "purposes" of prostitution (P.K. Unni Kumar

75
The Immoral Traffic Prevention Act, 1956, § 2(f), No. 104, Acts of Parliament, 1956 (India).
76
The Immoral Traffic Prevention Act, 1956, § 2(a), No. 104, Acts of Parliament, 1956 (India).
77
Gaurav Jain v. Union of India, AIR 1997 SC 3021

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vs The State78). There is no evidence to prove that the victim was forcefully pushed into
in the act of offering her body for promiscuous sexual intercourse neither do the facts
disclose the existence of a brothel. In China Mallik v. The State of Jharkhand79 it was
held that:” Offence under section 5(1) of the Immoral Traffic (Prevention) Act 1956 is
cannot be not made out if the State has failed to prove that appellant induced his wife for
prostitution. “. Thus, a prime facie offence cannot be made out under Section 5 of ITPA.

4.2.2 Section 8 of the immoral Traffic (Prevention Act), 1956

10 It is humbly submitted that the petitioner has not committed the alleged offence under
section 880 of ITPA. It is to be noted that the essential elements as under Section 8 of the Act
are as follows:

(a)Whoever, in any public place by words, gestures, wilful exposure of his person tempts or
endeavours to tempt, or attracts or endeavours to attract the attention of, any person for the
purpose of prostitution; or

(b) Solicits or molests any person, or loiters or acts in such manner as to cause obstruction or
annoyance to persons residing nearby or passing by such public place or to offend against
public decency, for the purpose of prostitution.

50. In Webster’s Dictionary 1961 Edition, the word “Solicit” is defined to mean “to entreat or
importune” or “to accost a man for immoral purposes”. The crux of this section is that it
punishes a male or a female acting in an immoral manner (either though words or gestures) to
attract persons attention for the purpose of prostitution.

51. In Renubansal v. Chandigarh UT81, the court held that there is no evidence that the ladies
were offered to the decoy customer. Mere acceptance of money by him from the decoy
customer and in the absence of other evidence of any other overt act leading to sexual
intercourse, merely handing over the money to the ladies is hardly sufficient to prove that the
money was received for the purpose of prostitution. As a matter of fact, since the three ladies

78
P.K. Unni Kumar v. State of Madras, 1974 CriLJ 377
79
China Mallik vs State of Jharkhand, 2017 SCC OnLine Jhar 2795
80
The Immoral Traffic Prevention Act, 1956, § 8, No. 104, Acts of Parliament, 1956 (India).
81
Renu Bansal and Ors. vs. U.T. Chandigarh, 2010 CriLJ 600

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sitting in the car are not covered within the definition of ‘prostitutes’, the offence of acting as
a tout or pimp by the accused as provided under Section 4 of the Act is not established.

52. The court in State v. Premchand82 held that: The accused cannot be convicted under
Section 8(b) in the absence of the testimony of the person who was solicited for prostitution by
the accused. (In re Kamla, AIR 1966 Mad 31283) The failure of the prosecution to examine the
person claimed to be solicited creates a doubt the benefit of which should go to the accused
persons.

53. It is humbly submitted that the petitioner and his wife entered Dubai together, after that his
wife went missing. There is no evidence to suggest that Ms Rohini was pushed into flesh trade.
Nor has petitioner seduced or solicited in any public place, subsequently it cannot be proved
that he was in sight of a public place at the time of seducing or soliciting any customers. (State
vs.: Santosh Rani84). Thus, a prime facie offence cannot be made out under Section 8 85 of
ITPA.

SUBMISSION (B): Abuse of Process in the matter of Investigation Conducted by the

Police under Section 13 of the ITPA, 1956

54. Section 1386 of ITPA mandates that all offences committed under the act needs to be
investigated by a Special Police officer (Hereinafter referred as SPO) appointed by the state
government.

55. In Delhi administration v. Ram Singh where a Sub-Inspector of police under the Delhi
Administration, not appointed, and incapable too of being appointed a special police officer,
under Section 13, sub-sections (1) and (2), investigated an offence under Section 8 (“seducing
or soliciting for purpose of prostitution”), and submitted the charge-sheet as well the apex court
struck down the charge sheet and has held that—

• The special police officer is contempt to investigate.

• He and his assistant police officers are the only persons competent to investigate the
offences under the Act.

82
State v. Premchand ,65 Bom LR 870
83
In Re: Kamala, AIR 1966 Mad 312
84
Santosh Rani v. State,2017 SCC OnLine Del 10371
85
The Immoral Traffic Prevention Act, 1956, § 8, No. 104, Acts of Parliament, 1956 (India).
86
The Immoral Traffic Prevention Act, 1956, § 13, No. 104, Acts of Parliament, 1956 (India).

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• Police officers not specially appointed as special police officers cannot investigate the
offences under the Act even though they are cognizable.

In the instant case the procedures laid out in the act are not being complied with as the
investigation was not conducted by SPO, therefore resulting in the abuse in the fairness of
investigation. The respective police have failed to conduct the investigation effectively, thus
section 587 and 888 of ITPA cannot be sustained.

87
The Immoral Traffic Prevention Act, 1956, § 5, No. 104, Acts of Parliament, 1956 (India).
88
The Immoral Traffic Prevention Act, 1956, § 8, No. 104, Acts of Parliament, 1956 (India).

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ISSUE 5 - Whether the alleged transaction through Bitcoins and its exchange into fiat
money is contrary to the law in India?

SUBMISSION A: Bitcoin transactions are not barred in India

Virtual currency is a digital representation of value that can be digitally traded and functions
as

55. (1) a medium of exchange; and/or

(2) a unit of account; and/or

(3) a store of value,

but does not have legal tender status (i.e., when tendered to a creditor, is a valid and legal offer
of payment) in any jurisdiction. It is neither issued nor guaranteed by any jurisdiction, and
fulfils the above functions only by agreement within the community of users of the virtual
currency. Virtual currencies include Bit coin, Lite coin, Ethereum, Bit coin Cash. The concept
of Virtual currency was first introduced by Satoshi Nakamoto in his paper Titled bit coin where
he explains that:

56. “Rather than relying on a central bank or company to issue and keep track of the money –
as the existing financial system and Chaum’s DigiCash did – this system was set up so that
every Bit coin transaction, and the holdings of every user, would be tracked and recorded by
the computers of all the people using the digital money, on a communally maintained database
that would come to be known as the block chain.”

57. Bitcoins come under the ambit of virtual currencies. In a bit coin network, there are two
kinds of keys: Public and private. Whenever a seller needs to transfer bit coins to a buyer
(within the bit coin network), the seller basically sends a private key which acts as a password
for the buyer to access bit coins, this is called as peer to peer transaction as there is no
intermediary such as a bank to authorize the transaction. When this transfer occurs all the other
members of the Bit coin network have a public key, with which they can take note of the
transaction that are happening around them, and only If all the members authorize the
transaction, the transaction will be validated, this is called Block chain technology.

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58. In the present case Mr. Veer was in dire need of money as he had to pay a sum of twenty
lakh rupees for Bail bond and he had to meet other legal expenses. Hence, he approached a
currency dealer Mr Rahamat Saeed. Thereafter Mr. Veer transferred 5000-bit coins and
received Rs 46, 00,000 in cash. Since this transaction was between Mr. Veer and Mr Rahamat
Saeed it can be categorized as a peer –to- peer transaction. After this transaction was made Mr.
Veer (hereinafter referred to as Petitioner -1 “P1”) and Mr Rahamat Saeed (hereinafter referred
to as Petitioner -1 “P2”) were arrested by Chandigarh police and Enforcement Directorate and
were charged under Prevention of Money Laundering Act and Foreign Exchange Management
Act.

59. The Hon’ble Supreme court in Internet and Mobile Association ... vs Reserve Bank of
India89discussed and deliberated on the legality of Bitcoins at length hence this judgment is
the primary authority on this topic. As per the facts of the case, RBI passed a notification
which banned all the banks and registered companies from dealing with Virtual currencies
(Hereinafter referred to as VC’s). This notification was challenged. The key findings from the
judgment are:

1. The RBI has taken a stand that:

60. (a) In any case, there is no complete ban on virtual currencies or on the use of distributed
ledger technology by the regulated entities.

(b) The impugned decisions were necessitated because in the opinion of RBI, VC transactions
cannot be termed as a payment system, but only peer-to-peer transactions which do not involve
a system provider under the Payments and Settlement Systems Act. Despite this, VC
transactions have the potential to develop as a parallel system of payment

2. The Bench observed that;

61. The impugned Circular does not impose a prohibition on the use of or the trading in VCs.
It merely directs the entities regulated by RBI not to provide banking services to those engaged
in the trading or facilitating the trading in VCs. Section 36(1)(a) of the Banking Regulation
Act, 1949 very clearly empowers RBI to caution or prohibit banking companies against
entering into certain types of transactions or class of transactions. The prohibition is not per

89
Internet and Mobile Association of India vs. Reserve Bank of India, (2020) 10 SCC 274

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se against the trading in VCs. It is against banking companies, with respect to a class of
transactions

62. It is very much clear from this judgment that the apex court has facilitated the trade of
virtual currencies, not only VC Companies and VC Dealers but also banks are allowed to deal
with virtual currency, it has also accepted that VC can develop as alternative payment system
and has buttressed that Block chain technology. Going by this rationale the alleged transaction
in the current case is no illegal.

SUBMISSION(B) - Exchange of Bit coins into fiat money is not contrary to the law in
India

Contention 1: the Indian Contract Act, 1872,

63. Section 2(h)90 of the Indian Contract Act, 1872, defines the term "contract" as 'an agreement
enforceable by law.' As per Sec. 2(e)91, 'every promise and every set of promises forming
consideration for each other' is called an "agreement". An 'agreement' is a promise and a
'promise' is an accepted proposal. Thus, every agreement is made up of a proposal or offer from
one side and its acceptance by the other (thus there must be two or more persons; one person
cannot enter into an agreement with himself).

64. An agreement is a wider term than a contract. Every contract is an agreement, but every
agreement is not a contract. An agreement becomes a contract when the following conditions
mentioned in Sec. 2(h), Section 1092 of the Contract act discusses the essentials of a contract ,
the important ones are:

1. The parties should be competent to contract i.e.; should be a major, which is 18 years old.

2. There should be free consent i.e.; without any coercion, misrepresentation, undue
influence, fraud and mistake.

90
The Indian Contract Act, 1872, § 2(h), NO. 9, Acts of Parliament, 1872 (India).
91
The Indian Contract Act, 1872, § 2(e), NO. 9, Acts of Parliament, 1872 (India).
92
The Indian Contract Act, 1872, § 10, NO. 9, Acts of Parliament, 1872 (India).

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3. There should be a lawful consideration with a lawful object, which has not been expressly
declared void.

65. Consideration is defined as, “When, at the desire of the promisor, the promisee or any other
person has done or abstained from doing, or does or abstains from doing, or promises to do or
to abstain from doing, something, such act or abstinence or promise is called a consideration
for the promise” From this definition, the word “something” can be construed to include the
transfer of CCs’.

66. Bitcoins can be used as consideration because the nature of consideration is not specifically
defined in the Act except, the factor that it must not be unlawful in nature as it has been
expressed in Section 23 of ICA, 1872. Section 2393 states that, if the Court regards an object as
immoral and against the public policy, it will turn into an illegal object. But the term, “public
policy” and “morality” is subjective and it is dependent on the society and the circumstances,
there are not hard and fast rules to decide whether something is immoral, further CC has not
been discussed in this light. Therefore, CCs’ can qualify as a consideration because it has not
been declared as an unlawful object. CC can also be an object to a contract because of the same
reason; there is no law which declares it illegal.

67. Veer (Petitioner 1) received 7000bitcoins as an investment from Sheikh Tayyar. When he
was in dire need of money he made an agreement with P2 to transfer bit coins and obtained
Fiat money for exchange. Both the parties are majors and have consented to fulfilling their
obligations. Since bitcoins have not been declared illegal by any law, transfer of 5000 bitcoins
from Veer (Petitioner 1) to Rahmad Saeed (Petitioner 2) acted as consideration and P2 fulfilled
his obligation by providing Fiat money in exchange of Bit coin. Arguendo, it is submitted that
Exchange of Bit coins into fiat money is not contrary to the law in India.

Contention2:
Transaction is valid under Sale of Goods Act

68. Bitcoin wallets keep a secret piece of data called a “private key” for each Bitcoin address.
Private keys are used to sign transactions, providing a mathematical proof that they have
come from the owner of the addresses. Thus, it can be stated that, it can be stored and
transferred.

93
The Indian Contract Act, 1872, § 23, NO. 9, Acts of Parliament, 1872 (India).

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69. In Tata Consultancy Services v. State of Andhra Pradesh94, the Supreme Court stated
that, “computer software is intellectual property, whether it is conveyed in diskettes, floppy,
magnetic tapes or CD ROMs, whether canned (Shrink-wrapped) or uncanned (customized),
whether it comes as part of computer or independently , whether it is branded or unbranded,
tangible or intangible; is a commodity capable of being transmitted, transferred, delivered,
stored , processed, etc. and therefore as a ‘good’ liable To sale tax. Further the court clarified
that a commodity is generally understood to mean goods of any kind, something of use or an
article of commerce.

70. Since Bitcoin are an intangible asset, it leaves open the possibility of being characterized
as a commodity under Indian law. Bitcoin may very well fall under the meaning of “goods”
and may be covered under the Sale of Goods Act. Section 2(7)95 of The act defines “good”
as:

“every kind of movable property other than actionable claims and money; and includes stock
and shares, growing crops, grass, and things attached to or forming part of the land which are
agreed to be severed before sale or under the contract of sale.” Going by this Rationale the
Apex court has opined that Bitcoins can be classified a goods under Sale of Goods Act.

71. Section 496 of Sale of goods act states that :

(1) A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer
the property in goods to the buyer for a price. There may by a contract of sale between one
part-owner and another.

(2) A contract of sale may be absolute or conditional.

Section 2(10)97 is defined as the money consideration for a sale of goods.

72. In the instant case, P1 has sold his bitcoins to P2, and has obtained 46 lakhs in cash. In
T.V. Sundram v. State of Madras98 it was held that “The expression “sale of goods” is a
nomenjures its essential ingredients being an agreement to sell movables for a price and
property passing therein pursuant to that agreement. Here Bitcoins are goods being sold and

94
Tata Consultancy Services v. State of Andhra Pradesh, 1997 105 STC 421 AP
95
The Sale of Goods Act, 1930, § 2(7), NO. 3, Acts of Parliament,1930 (India)
96
The Sale of Goods Act, 1930, § 4 , NO. 3, Acts of Parliament,1930 (India)
97
The Sale of Goods Act, 1930, § 2(10) , NO. 3, Acts of Parliament,1930 (India)
98
T.V. Sundram v. State of Madras, (1975) 3 SCC 424

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its price is around 46 lakhs, and once Bitcoins were sold, P2 paid the price of the good.
Hence this transaction is valid as per sale of goods act.

SUBMISSION (c) - ARTICLE 19, CONSTITUION OF INDIA

Freedom of speech and expression

73. It is submitted that under Article 19(1)(g)99 of the constitution all citizens shall have the
right to practice any profession, or to carry on any occupation, trade or business. Emphasizing
on this right the court in the case, Sadan Singh v. New Delhi Municipal Committee100 held
that “The object of using four analogous words in Article 19(1)(g) is to make the guaranteed
right as comprehensive as possible to include all the avenues and modes through which a man
can earn his livelihood. In a nutshell the guarantee takes into fold any activity carried on by a
citizen to earn his living. Going by this rationale Mr Saeed is allowed to trade in Bit coins to
earn his livelihood as the Apex court has allowed Bit coin transaction in the country to progress.

74. It is contended that Mr Rahamat Saeed earns his livelihood by trading in VC’s, as noted
earlier Bitcoin transactions are electronic transaction and require electronic devices to complete
these transactions. Subsequently, On Jan 1st 2020 all electronic devices of P2 were seized even
though dealing with VC’s is not illegal per se, seizure of such electronic devices has violated
the petitioner’s fundamental rights.

75.In Oudh Sugar Mills v. Union of India101,it was held that “Right to trade being a guaranteed
freedom can be restricted only by law considered by the courts as reasonable in the
circumstances. Not only the law restricting the freedom should be reasonable the orders made
there under must be reasonable. Here seizure of electronic goods by the respective officers
amounts to restrictions on the petitioner’s right to carry on his profession. Hence it is submitted
that the alleged transaction through Bitcoins and its exchange into fiat money is contrary to the
law in India.

99
INDIA CONST. art. 19, cl.1, (g)
100
Sadan Singh v. New Delhi Municipal Committee, AIR 1989 SC 1988
101
Oudh Sugar Mills Ltd., Etc. vs Union of India and Ors., AIR 1970 SC 1070

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6.1 Whether Veer and Rahamat Saeed have committed the alleged offence punishable
under Section 4 of the Prevention of Money Laundering Act, 2002?

It is humbly submitted before this Hon’ble court that the petitioners Mr Veer (Petitioner no1)
and Mr Rahamat Saeed (Petitioner no2) have not committed the alleged offence punishable
under Section 4102 of the Prevention of Money Laundering Act, 2002.

6.1.1 Section 3 of the PMLA, 2002

76. It is pertinent to refer to the offence of Money laundering defined under Section 3 103 of
PMLA, 2002. It is to be noted that the essential elements under Section3 are as follows:

1. whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly

is a party or is actually involved in any process or activity connected with the proceeds of
crime including its concealment, possession, acquisition or use and projecting or claiming
it as untainted property shall be guilty of offence of money laundering

2. Explanation. —For the removal of doubts, it is hereby clarified that, — (i) a person

shall be guilty of offence of money-laundering if such person is found to have directly or

indirectly attempted to indulge or knowingly assisted or knowingly is a party or is actually
involved in one or more of the following processes or activities connected with proceeds of
crime, namely: — (a) concealment; or (b) Possession; or (c) acquisition; or (d) use; or (e)
projecting as untainted property; or (f) claiming as untainted property

77. The term “Proceeds of Crime” is defined u/s 2(u)104 PMLA which means any property
derived or obtained directly or indirectly, by any person as a result of criminal activity relating
to a scheduled offence or the value of any such property or where such property is taken or
held outside the county, then the property equivalent in value held within the country. section
3 105read with Section 2(u) proves that the offence of money laundering, is committed in two
parts i.e.

102
The Prevention of Money Laundering Act, 2002,§4,No. 15, Acts of Parliament,2002,(India)
103
The Prevention of Money Laundering Act, 2002,§3,No. 15, Acts of Parliament,2002,(India)
104
The Prevention of Money Laundering Act, 2002,§2(u),No. 15, Acts of Parliament,2002,(India)
105
The Prevention of Money Laundering Act, 2002,§3,No. 15, Acts of Parliament,2002,(India)

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• When one acquires Proceeds of Crime via the commission of Predicate Offence and

• When said Proceeds of Crime are laundered. (M/S Mahanivesh Oils & Foods Pvt. ... vs
Directorate of Enforcement106)

SUBMISSION (A):

The amount acquired by Veer is not from the proceeds of a crime

78. In Rajiv Chennana v. Directorate of Enforcement107, court held that the: The plain
language of Section 3 indicates that an offence of money laundering is premised on existence
of "proceeds of crime". The proceeds of crime are properties that are derived or obtained as a
result of criminal activity relating to a scheduled offence. As discussed earlier, proceeds of
crime - by its definition - are non-existent if the scheduled offence which is stated to give rise
to those proceeds is itself negated.

79. In the instant case, P1 received 7000 bitcoins as a capital investment from Sheikh
Tayyar, further dealing with VC’s is not prohibited under any law. Receiving an investment
for a firm or dealing with bitcoins does not come under the ambit of the list of offences
mentioned in schedules a,b,c and dof PMLA.

80. In Sushil Kumar Katiyal v. Union of India108, summoning order issued for the offence u/s
3109 of PMLA was assailed before Allahabad High Court on the ground that when accused has
been discharged form Predicate Offence and that order of discharge has also attained finality,
then such summoning u/s 3 is bad in law. Arguendo, the amount acquired is not from criminal
activities. Hence a prima facie case under section 3 cannot be made out, subsequently section
4110 of PMLA cannot be attracted.

106
Mahanivesh Oils and Foods Pvt. Ltd. vs. Directorate of Enforcement, AIR 2016 Delhi 54
107
Rajiv Chanana versus Dy. Director, Directorate of Enforcement 2015 (316) ELT 422(Del.)
108
Sushil Kumar Katiyal v. Union of India, 2016 SCC OnLine ALL 2632
109
The Prevention of Money Laundering Act, 2002,§3,No. 15, Acts of Parliament,2002,(India)
110
The Prevention of Money Laundering Act, 2002,§4,No. 15, Acts of Parliament,2002,(India)

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SUBMISSION (B) – Rahamat Saaed has not committed the alleged offence of Money
Laundering:

81. Rahamat Saaed (Petitioner no 2) is arbitrarily charged under section 4 for “allegedly”
helping Veer to project “Proceeds of crime “to be untainted money, when in reality none of
these activities have occurred. P1 received 7000 bitcoins as an investment and not as the result
of any criminal activity. Since he was in dire need of money to pay his bail bond and meet is
legal expenses, he approached P2 who is a currency broker but also dealt with bitcoins. To
fulfil P2’s request, P1 accepted the Bitcoins and provided paper money to P1, this exchange is
also valid as per principles enshrined in the Indian Contract Act.

82. In B Rama Raju vs Union of India111 the court opined that the first stage is Placement,
where the criminals place the proceeds of the crime into normal financial system. The second
stage is Layering, where money introduced into the normal financial system is layered or spread
into various transactions within the financial system so that any link with the origin of the
wealth is lost. And, the third stage is Integration, where the benefit or proceeds of crime are
available with the criminals as untainted money.
83. There is much merit in this description of money-laundering and this also indicates that, by
its nature, the offence of money-laundering has to be constituted by determinate actions and
the process or activity of money-laundering is over once the third stage of integration is
complete. Thus, unless such acts have been committed after the Act came into force, an offence
of money-laundering punishable under Section 4 would not be made out”.
Therefore, Mr. RahamatSaed cannot be held liable under Section 4112 of PMLA as merely
transacting with bitcoins obtained as investment and providing fiat money in return will not
constitute as placement, layering or integration of Black money to make it look like untainted
money.
84. In Rohit Tandon v. Enforcement Directorate113,an offence under section 4, is complete
with mens rea. Petitioner 2 neither had an intention to conceal the “alleged” “proceeds of a

111
B. Rama Raju versus Union of India (UOI), Ministry of Finance, Department of Revenue and Ors., [2011]
108 SCL 491 (AP)
112
The Prevention of Money Laundering Act, 2002,§4,No. 15, Acts of Parliament,2002,(India)

113
Rohit Tandon Vs. The Enforcement Directorate, AIR 2017 SC 5309

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crime” and does not come under the criteria set out in B Rama Raju vs Union of India114,which
talks about role of an individual who helps in concealment of proceeds of a crime.

Contention 1: Abuse of Process in the matter of Investigation Conducted by the Special

Section 65115 of the PMLA states that;

The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, with the
provisions of this Act, to arrest, search and seizure, attachment, confiscation, investigation,
prosecution and all other proceedings under this act.

85. In the instant case, the investigation conducted by Enforcement Directorate (Hereinafter
referred to as ED) has not followed the procedures laid out under PMLA and C.r.P.C.
In Rajbhshan Omprakash Dixit vs Union of India &Anr116, the court held that the existing
provisions in Section 45 of the Act, every offence is cognizable. If an offence is cognizable,
then any police officer in India can arrest an offender without warrant. At the same time, under
Section 19 of the Act, only a Director or a Deputy Director or an Assistant Director or any
other officer authorised, may arrest an offender. Clearly, there was a conflict between these
two provisions. Under Section 45(1) (b) of the Act, the Special Court shall not take cognizance
of any offence punishable under Section 4 except upon a complaint made in writing by the
Director or any other officer authorised by the Central Government.

86. They have now been removed. We have now enabled only the Director or an officer
authorised by him to investigate offences. A new Section, 2 (n) (a) defining the term,
'investigation'; making an amendment to Sections 28, 29 and 30, dealing with tribunals;
amending Sections 44 and 45 of the Act to make the offence non-cognisable so that only the
Director could take action; and also making consequential changes in Section.” By relying on
this speech, the court clarified that offences under PMLA are non- cognizable.

87. In another ruling, Guntaiah v. Hambamma117 (supra) the Supreme Court explained that“the
correct legal position is that Chapter XII of the Cr PC would apply to the PMLA, then whether

114
B. Rama Raju versus Union of India (UOI), Ministry of Finance, Department of Revenue and Ors., [2011]
108 SCL 491 (AP)
115
The Prevention of Money Laundering Act, 2002, §65, No. 15, Acts of Parliament,2002, (India)
116
Rajbhushan Omprakash Dixit vs. Union of India and Anr., 2018 (1) JCC 506
117
Guntaiah and Ors. vs. Hambamma, and Ors., AIR 2005 SC 4013

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the offences under the PMLA are cognizable or non-cognizable, the Cr PC has to be followed.
As explained in State of Haryana v. Bhajan Lal118and Lalita Kumari v. Govt. of Uttar
Pradesh119, if it is a cognizable offence, then the procedure of entering the substance of the
information in a book under Section 154 Cr PC, forwarding a report to the Magistrate as
mandated by Section 157 Cr PC, maintaining a case diary as mandated by Section 172 Cr PC
and producing such case diary before the Magistrate upon arrest of the accused as mandated
by Section 167 Cr PC has to be followed. If the offence is non- cognizable the procedure under
Sections 155, 167 (1) and 172 Cr PC would have to be followed.

88 The mandate of Articles 21 and 22 of the Constitution of India the powers under the PMLA
in relation to the offences under the PMLA, have to be governed by the Cr PC, if not by the
PMLA. This is expressly recognised and acknowledged by Section 65 PMLA. Therefore, not
open to the DOE to choose to not follow the Cr PC in an area where the PMLA is silent”.

89. The dilemma in the present case is that the ED has conducted investigation and has arrested
the petitioners without filing an ECIR or an FIR (FIR registered after investigation, search,
seizure and arrest was conducted). In Maneka Gandhi v. Union of India120, the Supreme Court
held that procedure in Article 21 "has to be fair, just and reasonable, not fanciful, oppressive
or arbitrary. Clearly the procedures were not followed in this case and the petitioner’s liberty
has been curtailed arbitrarily.

6.2 Whether Veer and Rahamat Saeed have committed the alleged offence punishable
under Section 13 of the Foreign Exchange Management Act, 1999?

It is humbly submitted before this Hon’ble court that the petitioners Mr Veer (Petitioner no1)
and Mr Rahamat Saeed (Petitioner no2) have not committed the alleged offence punishable
under Section 13121 of the Foreign Exchange Management Act, 1999.

90. Section 13 of FEMA states the penal provision which imposes fine on any person who
contravenes any provision of this Act, or contravenes any rule, regulation, notification,

118
State of Haryana and Ors. vs. Ch. Bhajan Lal and Ors., AIR 1992 SC 604
119
Lalita Kumari vs. Government of Uttar Pradesh and Ors., 2009 (64) ACC 214
120
Maneka Gandhi vs Union of India (UOI) and Ors., AIR 1978 SC 597
121
The Foreign Exchange Management Act, 1999, § 13, Acts of Parliament,1999, (India)

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direction or order issued in exercise of the powers under this Act, or contravenes any condition
subject to which an authorisation is issued by the Reserve Bank.

Submission (A) - Virtual Currency does not come under the FEMA Act

91. It is pertinent to note that, FEMA governs foreign exchange transactions and Virtual
Currency (herein referred to as VC’s), do not come under the ambit of Foreign exchange. The
same can be inferred from the following sections:

Section 2(h)122 states that,

“currency” includes all currency notes, postal notes, postal orders, money orders, cheques,
drafts, travellers’ cheques, letters of credit, bills of exchange and promissory notes, credit
cards or such other similar instruments, as may be notified by the Reserve Bank;

Section 2 (i)123 states that

“currency notes” means and includes cash in the form of coins and bank notes;

Section 2 (m)124 states that: “foreign currency” means any currency other than Indian currency;

Section 2 (n)125 states that:

“foreign exchange” means foreign currency and includes, —

(i) deposits, credits and balances payable in any foreign currency,

(ii) drafts, travellers’ cheques, letters of credit or bills of exchange, expressed or drawn in
Indian currency but payable in any foreign currency,

126
92. In Internet Mobile Association of India vs Reserve Bank of India , the apex court has
observed that

“RBI has taken a stand in paragraph 24 of its counter-affidavit that VCs do not fit into the
definition of the expression “currency” under Section 2(h) of FEMA,” So here one can infer

122
The Foreign Exchange Management Act, 1999,§ 2(h),Acts of Parliament,1999,(India)
123
The Foreign Exchange Management Act, 1999,§ 2(i),Acts of Parliament,1999,(India)
124
The Foreign Exchange Management Act, 1999,§ 2(m),Acts of Parliament,1999,(India)
125
The Foreign Exchange Management Act, 1999,§ 2(n),Acts of Parliament,1999,(India)
126
Internet and Mobile Association of India vs. Reserve Bank of India, (2020) 10 SCC 274

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that RBI has not recognized VC’s as legal tender so they cannot come under the ambit of
currency.

The term foreign exchange includes foreign currency and Section 2(m) defines foreign
currency as any currency other that Indian currency. The powers are vested on the RBI, which
can only notify any instrument to be described as currency. VC’s cannot be declared as foreign
currency and they will not come under the scope of Foreign exchange. Ergo, the provisions of
FEMA cannot be attracted in itself.

5.2.1 Section 3127 of FEMA, 1999

93. It is humbly submitted before this Hon’ble court that the petitioners Mr Veer (Petitioner
no1) and Mr Rahamat Saeed (Petitioner no2) have not committed the alleged offence under
Section 3 of the Foreign Exchange Management Act, 1999. The essential ingredients of the
section are as follows:

• Other than authorized person no person can deal in or transfer any foreign exchange
or foreign security to any person;

• In any manner, a person should not make any payment to or for the credit of any person
resident outside India;

• Only an authorized person can receive any payment by order or on behalf of any person
resident outside India;

5.2.2 Section 4128 of FEMA, 1999

“no person resident in India shall acquire, hold, own, possess or transfer any foreign
exchange, foreign security or any immovable property situated outside India”

In Robert Wigram Crawford v. Richard Spooner129 it was held that the construction of the
Act must be taken from the bare words of the Act. In the construction of statutes their words
must be interpreted in their ordinary grammatical sense, unless there be something in the
context, or in the object of the statute in which they occur, or in the circumstances with

127
The Foreign Exchange Management Act, 1999,§ 3,Acts of Parliament,1999,(India)
128
The Foreign Exchange Management Act, 1999,§ 4,Acts of Parliament,1999,(India)
129
Robert Wigram Crawford v. Richard Spooner ,1846 SCC OnLine PC 7 : (1846-50) 4 Moo IA 179

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reference to which they are used, to show that they were used in a special sense different from
their ordinary grammatical meaning.”

In G. Narayanaswami v. G Pannerselvam130.it was held: A logical corollary of the rule of

literal interpretation is that a statute may not be extended to meet a case for which provision
has clearly and undoubtedly not been made. An application of the rule necessarily involves that
addition to or modification of words used in statutory provisions is not generally permissible.”
Since in the present case the definitions in the statute do not permit the inclusion of Bitcoins
under the ambit of foreign exchange, the Section 3 and 4 which explicitly deal with regulation
of foreign exchange cannot be invoked.

Further in Gauri Shankar v. Union of India131 it was held that: Section 3132 of the Foreign
Exchange Management Act, 1999 (‘FEMA Act’) permits seizure only of foreign exchange.”
In other words, it is submitted that officers of the ED had no authority to seize either gold or
the Indian currency. A perusal of Section 37133 of the FEMA reveals that it cannot be invoked
to seize Indian currency.”

5.2.3 Section 7 of FEMA, 1999

Section 7134 states that every exporter of goods-

• Shall provide to the Reserve Bank or any other authority with a declaration or a
statement in such a manner that is specified and should contain true and correct material
particulars which should also include the amount representing the full export value. And if the
amount is not ascertainable then the prevailing market value should be mentioned.

• It should also provide such other information to the Reserve Bank for the purpose of
ensuring the realisation of the export proceeds by such exporter.

• The Reserve Bank may determine the full value of the export goods or reduced value of
those goods to ensure that they comply with the prevailing market conditions and to check that

130
G. Narayanaswami v. G Pannerselvam, (1972) 3 SCC 717
131
Gauri Shankar v. Uoi ,(2011) 176 DLT 599
132
The Foreign Exchange Management Act, 1999,§ 3,Acts of Parliament,1999,(India)
133
The Foreign Exchange Management Act, 1999,§ 37,Acts of Parliament,1999,(India)
134
The Foreign Exchange Management Act, 1999,§ 7,Acts of Parliament,1999,(India)

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it is received without any delay and if not, that can direct any exporter to comply which such
requirements as it deems fit.

94. In Bhinka&Ors. vs. Charan Singh135, the Supreme Court quoted Maxwell on
Interpretation of Statutes, as under.:

"The headings prefixed to sections or sets of sections in some modern statutes are regarded as
preambles to those sections. They cannot control the plain words of the statute but they may
explain ambiguous words." Since the heading of Section 7 mentions that it is applicable to
exporters of goods, going by the rationale adopted in Bhinka&Ors. vs. Charan Singh, we can
conclude that the essence of this section is deals with exporting goods.

Section 2 (l)136 defines export as:

• the taking out of India to a place outside India any goods,

• provision of services from India to any person outside India;

95. Bitcoins come under the ambit of definition of goods, it is necessary that export of such
goods must have taken place. In the present case the bitcoin transaction was between Veer and
RahamatSaed conducted in India (Peer –to- peer transaction), the fiat money was given as a
consideration to the bitcoins. There was no export of goods outside territories of India. Ergo,
the alleged offences under Section 3137,4138 and 7 139cannot be made out.

135
Bhinka & Ors. vs. Charan Singh, 1959 Supp (2) SCR 798
136
The Foreign Exchange Management Act, 1999,§ 2(1),Acts of Parliament,1999,(India)
137
The Foreign Exchange Management Act, 1999,§ 3,Acts of Parliament,1999,(India)
138
The Foreign Exchange Management Act, 1999,§ 4,Acts of Parliament,1999,(India)
139
The Foreign Exchange Management Act, 1999,§ 7,Acts of Parliament,1999,(India)

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PRAYER FOR RELIEF

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

i) Quash the FIR IN CRIME No.920 of 2019 and all further proceedings thereon
ii) Quash the FIR IN CRIME No.923 of 2020 and all further proceedings thereon

AND/OR

Grant such other relief as this Hon’ble Court may deem fit in the interest of Justice, Equity
and Good Conscience.

And for this, the Petitioners as in duty bound, shall humbly pray

COUNSELS ON BEHALF OF PETITIONER

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