UNIVERSITY L AW COLLEGE NATIONAL M OOT COURT COMPETITION , 2022

TC-04R
UNIVERSITY LAW COLLEGE NATIONAL MOOT COURT COMPETITION

B EFORE THE HON’BLE SUPREME COURT OF THE UNITED STATES OF INDUS

IN THE MATTER OF
SPECIAL LEAVE PETITION NO. _________ OF 2022

MR. ARAV SAHOO APPELLANT

VERSUS
STATE OF ADISHA RESPONDENT

HUMBLY SUBMITTED B EFORE THE BENCH OF THIS HON’BLE SUPREME COURT

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

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M EMORIAL on behalf of the PETITIONER
 UNIVERSITY L AW COLLEGE NATIONAL M OOT COURT COMPETITION , 2022

TABLE OF CONTENTS

LIST OF ABBREVIATIONS ......................................................................................................II

INDEX OF AUTHORITIES ...................................................................................................... III

1. CASES ......................................................................................................................... III

2. STATUTES ................................................................................................................... IV

3. COMMENTARIES & B OOKS........................................................................................ IV

4. WEBSITES................................................................................................................... IV

STATEMENT OF JURISDICTION .............................................................................................. V

STATEMENT OF FACTS ........................................................................................................ VI

ISSUES RAISED ................................................................................................................... VII

SUMMARY OF ARGUMENTS .............................................................................................. VIII

ISSUE I: WHETHER THE CONVICTION OF ARAV SAHOO IS STATUTORILY VALID? VIII

ISSUE II: WHETHER POSSESSION OF THE CONTRABAND IS ESTABLISHED ? ........... VIII

ISSUE III: WHETHER THE CONVICTION WARRANTS FURTHER INTERFERENCE ? .. VIII

ISSUE IV: WHETHER CCTV FOOTAGE CAN B E ADMITTED AS EVIDENCE ? ............... IX

ARGUMENTS ADVANCED ...................................................................................................... 1

ISSUE I: WHETHER THE CONVICTION OF ARAV SAHOO IS STATUTORILY VALID? .... 1

1.1 ARREST IS IN TOTAL COMPLIANCE WITH MANDATORY PROVISIONS .................... 1

ISSUE II: WHETHER POSSESSION OF THE CONTRABAND IS ESTABLISHED ? ................ 3

2.1 PRESUMPTION OPERATES AGAINST THE APPELLANT............................................. 5

ISSUE III: WHETHER THE CONVICTION WARRANTS FURTHER INTERFERENCE ? ....... 7

ISSUE IV: WHETHER CCTV FOOTAGE CAN B E ADMITTED AS EVIDENCE ? ............... 11

PRAYER................................................................................................................................ X

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XXxX

LIST OF ABBREVIATIONS

ABBREVIATION EXPANSION

& And

¶ Paragraph Number

AIR All India Reporter

HC High Court

Hon’ble Honourable

Ors. Others

SC Supreme Court

SCC Supreme Court Cases

UOI Union of India

v. Versus

Vol. Volume

CrPC Code of Criminal Procedure, 1973

Evidence Act Indian Evidence Act, 1872

NDPS Act Narcotic Drugs and Psychotropic Substances Act, 1985

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M EMORANDUM on behalf of the RESPONDENT
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INDEX OF AUTHORITIES

1. CASES
1. Abdul Rashid Ibrahim Mansuri v. State of Gujarat, (2000) 18 Orissa Criminal Reports
(SC) 512.
2. Amal Das v. State of Assam, 2022 SCC OnLine Gau 764.
3. Amar @ Amarnath Nayak v. State of Orissa, (2018) 1 Orissa Law Reviews 562.
4. Anvar PV v. PK Basheer, (2014) 10 SCC 473.
5. Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, 2020 SCC OnLine SC 571.
6. Dehal Singh v. State of Himachal Pradesh, (2010) 9 SCC 85.
7. Dharampal Singh v. State of Punjab, (2010) 9 SCC 608.
8. Dharminder Kumar v. State of Punjab, Crl. A. No. 165-DB of 2022.
9. Gunwantlal v. State of MP, AIR 1972 SC 1756.
10. Hari Charan Kurmi v. State of Bihar, (1964) 6 SCR 623.
11. Health v. Drown, (1972) 2 All ER 561.
12. Herasha Majhi v. State of Odisha, (2020) (I) Orissa Law Reviews 39.
13. Jagdeo Singh v. the State and Ors, 2015 SCC OnLine Del 7229.
14. Karnail Singh v. State of Haryana, (2009) 44 Orissa Criminal Reports 183.
15. Kashmira Singh v. State of Madhya Pradesh, AIR 1952 SC 159.
16. Kunal Dattu Kadu v. Union of India, 2022 SCC OnLine Bom 1770.
17. Mandeep Kaur v. State of Punjab 2022 LiveLaw (PH) 235
18. Megh Singh v. State of Punjab, AIR 2003 SC 3184.
19. Mohan Lal v. State of Rajasthan, (2015) 6 SCC 222.
20. Mukesh Singh v. State (Narcotic Branch of Delhi), (2020) 10 SCC 120.
21. Noor Aga v. State of Punjab, (2008) 16 SCC 417.
22. Raghunath Singh v. State of Madhya Pradesh, 1967 Mah LJ 575.
23. Raj Kumar Karwal v. Union of India, (1990) 2 SCC 409.
24. Raju Premji v. Customs, NER, Shillong Unit, (2009) 16 SCC 496.
25. Ravinder Singh @ Kaku v. State of Punjab, 2022 LiveLaw (SC) 461.
26. Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke, MANU/SC/0040/2015.
27. Sanjeet Kumar Singh v. State of Chhattisgarh, 2022 LiveLaw (SC) 724.
28. Shridam Adhikari & Ors. v. Union of India BAIL No., - 8637 of 2019.
29. State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600.
30. State of Bihar v. Sri Radha Krishna, (1983) 2 SCR 808.

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31. State of Kerala v. Rajesh, AIR 2020 SC 721.

32. State of Punjab v. Baldev Singh, 1999 (II) Orissa Law Reviews (SC) 474.
33. Tukaram S.Dighole v. Manikrao Shivaji Kokate, (2010) 4 SCC 329.
34. Union of India (NCB) v. Khalil Uddin, 2022 LiveLaw (SC) 878 CrA 1841-1842/2022.
35. Union of India (UOI) v. Sanjeev V. Deshpande, 2014 (II) Orissa Law Reviews (SC) 707.
36. Union of India v. Ram Samujh and Ors, (1999) 9 SCC 429.
37. Vikram Singh and Anr. v. State of Punjab., (2017) 8 SCC 518.

2. STATUTES
1. Constitution of India, 1950
2. Narcotic Drugs and Psychotropic Substances Act, 1985
3. Indian Evidence Act, 1872
4. Code of Criminal Procedure, 1973

3. COMMENTARIES & B OOKS

1. Ratanlal and Dhirajlal, The Code Of Criminal Procedure (Act Ii Of 1974), Lexisnexis
Butterworths Wadhwa Nagpur, 2011.
2. Ratanlal and Dhirajlal, The Law Of Evidence (Act I Of 1872): With Exhaustive Notes,
Comments, Case-Law References And State Amendments, Wadhwa & Co., 2008.
3. Dr. V. Krishnamachari, Law Of Evidence, Asia Law House, 1992.
4. Justice U.L. Bhat, Relevancy, Proof And Evaluation Of Evidence In Criminal Cases,
Universal/Lexisnexis, 2020.
5. P.S. Atchuthen Pillai, Psa Pillai’s Criminal Law, Lexisnexis, 2021.
6. Eoghan Casey, Digital Evidence And Computer Crime, 3rd Edition, 2011.
7. Broom's Legal Maxims, 10th Edition, 1939.
8. Olivier Leroux, Legal admissibility of Electronic Evidence Lew, Taylor and Francis

4. WEBSITES
1. www.scconline.in
2. www.manupatra.com
3. www.judis.nic.in
4. www.legalserviceindia.com
5. www.thelawdictionary.org
6. www.oxforddictionaries.com

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M EMORANDUM on behalf of the RESPONDENT
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STATEMENT OF JURISDICTION

The Appellant has filed the application in the nature of a Special Leave Petition in the
nature of pursuant to ARTICLE 1361 of the Constitution of United States of Indus. The
Supreme Court of United States of Indus took cognizance of the issues and agreed to
hear and adjudicate the issues framed on its merits.

This Memorandum sets forth the facts, laws and the corresponding arguments on which
the claims are based in the instant case. The Respondent affirm that they shall accept any
Judgment of this Hon’ble Court and shall execute it in its entirety and in good faith.

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

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STATEMENT OF FACTS

1. The United States of Indus is one of the world’s largest democracies. A criminal case has
been registered against Mr. Arav Sahoo, aged 58 years under the Narcotic Drugs and
Psychotropic Substances Act, 1985 (NDPS Act, 1985). Arav Sahoo is a farmer by
profession who is engaged in fishing and poultry farming at Badlapur, Adisha.

2. The alleged incident happened on 18.07.2019 at about 3:00 p.m. Two people were standing
on their ZTM bike and Xonda Activ Scooty at Falgiri, Adisha, being loaded with one
plastic sack each, and the other four people were standing near them with some plastic
sacks loaded with something. On suspicion, police stopped them and found a number of
plastic sacks were present near a motorcycle and a scooty packed with something from
which a strong pungent smell of Ganja was emanating. The police asked them to show the
documents of the motorcycle but they denied having the same.

3. On suspicion, the police asked the rider of the motorcycle as well as the scooty about the
loaded plastic sacks. They initially fumbled to answer but later confessed that there was
Ganja kept in the said plastic sacks. On being asked about the Ganja, every person present
there disclosed that Arav Sahoo, who was along with them, was financing for the said
Ganja and would take that consignment. Personal search and seizures were conducted
before the Executive Magistrate.

4. It came to light that the said plastic sacks contained fruits and flowers of a cannabis plant,
locally known as Ganja, which is a contraband article as per the NDPS Act. During the
personal search, no incriminating articles were found from them. Mr. Arav Sahoo owns a
number of poultry farms in the region around his home. Although he was accused of
committing similar offences in 2018, he was subsequently acquitted of all charges.

5. He was taken into custody on 17.07.2019, at 11:00 p.m., from his home in Badlapur,
Adisha, by the investigating officer of Falgiri, Adisha, without the knowledge of Badlapur
Police, which is located approximately 180 kilometers away from the scene of the incident
which was captured by the CCTV. But it is stated that he was arrested on 18.07.2019 at
about 3:00 pm as per chargesheet. Following Arav Sahoo’s conviction by the Judicial
Magistrate of Special Court, Falgiri, the High Court of Adisha affirmed the verdict of the
Judicial Magistrate of Special Court, Falgiri. Both the courts rejected the electronic
evidence during the trail and appeal.

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M EMORANDUM on behalf of the RESPONDENT
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ISSUES RAISED

ISSUE I
WHETHER THE CONVICTION OF ARAV S AHOO IS STATUTORILY V ALID ?

ISSUE II
WHETHER POSSESSION OF T HE CONTRABAND IS ESTABLISHED ?

ISSUE III
WHETHER THE CONVICTION WARRANTS FURTHER INTERFERENCE?

ISSUE IV
WHETHER CCTV FOOTAGE CAN BE ADMITTED AS EVIDENCE?

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SUMMARY OF ARGUMENTS

ISSUE I: WHETHER THE CONVICTION OF ARAV SAHOO IS STATUTORILY VALID?

The Respondent most reverently submits that the conviction of Mr. Arav Sahoo is statutorily
valid since there is total compliance with all statutory provisions of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (“the Act”). The Appellant was convicted by the Judicial
Magistrate of Special Court, Falgiri under Sections 20(b) (ii) (C), 25, and 27-A of the Act,
which was subsequently affirmed by the High Court of Adisha. There has been total
compliance with all the statutory requirements of Sections 42, 43, and 50.

ISSUE II: WHETHER POSSESSION OF THE CONTRABAND IS ESTABLISHED?

The Respondent most reverently submits that Mr. Arav Sahoo, the Appellant, was found in the
crime scene along with the other accused, and all of them had conscious and constructive
possession over the contraband material. Furthermore, once possession is established, the
person who claims that it was not a conscious possession has to establish it, because
presumption operates against him and how he came to be in possession is within his special
knowledge. Section 35 of the Act gives a statutory recognition of this position because of the
presumption available in law. Failure to discharge the reverse burden imposed on the Appellant
due to the statutory mandate of Section 35 of the Act rightfully resulted in conviction.

ISSUE III: WHETHER THE CONVICTION WARRANTS FURTHER INTERFERENCE ?

The Respondent humbly submits that the conviction of the Appellant by the Judicial Magistrate
of Special Class, Falgiri, and the subsequent affirmation by the High Court of Adisha does not
warrant further interference by the SC of the United States of Indus. In the instant case, the
manner in which the Ganja was discovered, the presence of the Appellant with the other
accused near the motorcycle and scooty, and the prevaricating and incriminatory statements
made by the other accused during their arrest, proved the possession beyond reasonable doubt
and hence the presumption and culpability under Sections 54 and 35 of the Act automatically
came into operation.

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ISSUE IV: WHETHER CCTV FOOTAGE CAN B E ADMITTED AS EVIDENCE ?

The Respondent humbly submits that any information contained in an electronic record, is
deemed to be a document and is admissible in evidence without further proof of the original’s
production provided that all conditions set out in Section 65B of the Evidence Act are satisfied.
Non-compliance with this provision renders the evidence inadmissible. In the present case, this
requirement is not fulfilled and thus the plea of electronic evidence was rejected by the Judicial
Magistrate of Special Court, Falgiri, and the High Court of Adisha.

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ARGUMENTS ADVANCED

ISSUE I: WHETHER THE CONVICTION OF ARAV SAHOO IS STATUTORILY VALID?

[¶1.] The Respondent most reverently submits that the conviction of the Appellant is statutorily
valid since there is total compliance with all statutory provisions of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (“the Act”). The Appellant was convicted by the Judicial
Magistrate of Special Court, Falgiri under Sections 20(b) (ii) (C), 25, and 27-A of the Act,
which was subsequently affirmed by the High Court of Adisha.

[¶2.] The Respondent humbly submits that the Appellant was arrested at 3:00 pm from the
crime scene at Falgiri, Adisha, along with other accused. The accused were found with
possession of Ganja in plastic sacks standing on their scooty and motorcycle. The personal
search and seizure was conducted before the Executive Magistrate as required by the statute. 2
There has been total compliance with all the statutory requirements of Sections 42, 43, and 50.

1.1 ARREST IS IN TOTAL COMPLIANCE WITH MANDATORY PROVISIONS

[¶3.] Section 42 requires that the officer is required to take down the information in writing
only if it is given by any other person. If the officer has reason to believe from his own personal
knowledge, he is not statutorily required to take it down in writing. In the instant case, the SI
and PS staff while doing the patrolling duty found the accused standing in their motorcycle and
scooty loaded with plastic sacks so they stopped initially and caught the accused. 3 Therefore,
the arresting officer(s) was not statutorily required to reduce this information in writing, as the
arrest took place out of their own personal suspicion and belief.

[¶4.] The Respondent humbly contends that the doctrine of false implication does not apply
in the instant case. The plea of ‘false implication’ is a stereotyped defence, which is raised in
every case where the accused are found in possession of contraband.4 The Appellant was
present along with the other accused during the arrest.

2
Section 50 of the NDPS Act.
3
Clarification 6
4
Shridam Adhikari & Ors. v. Union of India BAIL No. - 8637 of 2019

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[¶5.] Material possession of the contraband material, i.e., Ganja was established when
personal search and seizure was conducted in compliance with the provisions of the Act.5 The
statements given by the other accused, clearly incriminating the Appellant for financing the
said contraband, led to the investigation by the arresting officers. Subsequently, following the
trial of the accused, the Appellant was convicted under the aforesaid Sections of the Act.

[¶6.] The material difference between the provisions of Section 43 and Section 42 is that
while Section 42 requires recording of reasons for belief and for taking down of information
received, in writing, with regard to the commission of an offence, before conducting search
and seizure, Section 43 does not contain any such provision and as such while acting under
Section 43 of the Act, the empowered officer has the power of seizure of the article etc. and
arrest of a person who is found to be in possession of any narcotic drug or psychotropic
substance in a public place where such possession appears to him to be unlawful. 6 This was re-
emphasized by the SC in Karnail Singh v. State of Haryana7.

[¶7.] Sections 42 and 43 of the Act is not applicable to vehicles in transit and it is not
mandatory to obtain a warrant even if search conducted after sunset.8 If a conveyance is
intercepted or apprehended at a public place or in transit then the provisions of Section 42 of
the Act would not be applicable.9 The Respondent humbly submits that when the Appellant,
along with other accused, were apprehended by the arresting officers on the spot, they were
having conscious and constructive possession over the recovered Ganja.10 Once possession is
established, there is specific statutory presumption in relation to the contraband substance that
comes within the ambit of the Act.

[¶8.] In the instant case, even though Section 50 applies in case of personal search of a person
and it does not extend to search of a vehicle or container or a bag or premises 11, the personal
search and seizures were conducted in front of the Executive Magistrate, which proves
substantial compliance with all the mandatory sections of the statute.

5
Section 50 of the NDPS Act.
6
State of Punjab v. Baldev Singh, 1999 (II) Orissa Law Reviews (SC) 474.
7
Karnail Singh v. State of Haryana, (2009) 44 Orissa Criminal Reports 183.
8
Mandeep Kaur v. State of Punjab 2022 LiveLaw (PH) 235.
9
Dharminder Kumar v. State of Punjab, Crl. A. No. 165-DB of 2022.
10
This fact can be inferred ¶4 of the Moot Proposition, when they initially fumbled but later confessed that it was
Ganja.
11
Gunwantlal v. State of MP, AIR 1972 SC 1756.
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ISSUE II: WHETHER POSSESSION OF THE CONTRABAND IS ESTABLISHED?

[¶9.] The Respondent humbly submits that the Appellant along with other accused were
apprehended at the spot with material and conscious possession of the contraband material.
The jurisprudence regarding possession has been evolved by courts where the courts have held
that possession must always be conscious in nature and it consists of two elements - one, the
physical control and second the intent. Possession includes knowledge of fact. Courts have
drawn this element of mental state from the Act12 which deals with the presumption of mental
state of accused. The word ‘possession’ means the legal right to possession.13

[¶10.] In the case of Mohan Lal v. State of Rajasthan14, the SC reiterated that possession was
a mental state and Section 35 of the Act gave a statutory recognition to the culpable mental
state of the accused. The question of ‘conscious possession’ becomes a subjective test to be
determined with reference to the factual backdrop of each case as it happened in the present
case. The prosecution has the responsibility to determine if the accused has the possession, and
once that burden is discharged, the reverse burden operates as a result of which the onus is on
the accused to prove that the possession was legal.

[¶11.] In a given case, possession can be physical and constructive in nature, having power
and control over the contraband substance in question. The prior relationship of the co-accused,
the location where illegal drugs have been found, the behaviour of the accused 15, the quantity
of the illegal substances recovered 16, the antecedent character of the accused 17, etc. are some
of the relevant facts to be taken into consideration before the court reaches a conclusion on the
question of ‘conscious possession.’

[¶12.] In order to attract the penal liability under Section 20 of the Act, the prosecution need
to prove the possession only. In view of Section 54 of the Act and on proving the possession
of the contraband article by the prosecution, it is for the accused to give a proper account as to
how he came into the possession of the same, particularly in view of Section 35 of the Act.

12
Section 35 of the NDPS Act
13
Health v. Drown, (1972) 2 All ER 561.
14
Mohan Lal v. State of Rajasthan, (2015) 6 SCC 222.
15
¶5 of the Moot Proposition
16
¶5 of the Moot Proposition
17
¶2 of the Moot Proposition
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[¶13.] Once possession is established, the court can presume that the accused had a culpable
state of mind and has committed the offense. 18 The initial burden of proof of possession lies on
the prosecution and once it is discharged legal burden would shift on accused. In the case of
Union of India (UOI) v. Sanjeev Deshpande19, the SC held that Section 35 of the Act stipulates
that in any prosecution for an offence under the Act which requires a culpable mental state of
the accused, the Court trying offence is mandated to assume the existence of such mental state,
though it is open for the accused to prove that he had no such mental state.

[¶14.] Once the procedure enumerated in Sections 42, 43 & 50 are scrupulously followed, it
is for the accused, from whose possession the substance is recovered, to explain how he came
into possession. It is not always necessary to corroborate the testimony of police officials,
through the testimony of independent witnesses. In the case of Abdul Rashid Ibrahim
Mansuri v. State of Gujarat20, the SC held that when the appellant admitted that narcotic drug
was recovered from the gunny bags stacked in the vehicle, the burden of proof was on him to
prove that he had no knowledge about the fact that those gunny bags contained such a substance
due to the statutory mandate.21

[¶15.] The ‘culpable mental state’22 includes intention, motive, knowledge of a fact and belief
in, or reason to believe, a fact. However, it is for the defence to prove that the accused had no
such mental state with respect to the act charged as an offence in that prosecution. The accused
is to prove that he was not in conscious possession of the contraband if it is proved by the
prosecution that he was in possession thereof and he is also to prove that he had no such mental
state with respect to the act charged as an offence. 23

[¶16.] The burden of proof cast on the accused under Section 35 can be discharged through
different modes. One is that, he can rely on the materials available in the prosecution evidence.
In addition to that, he can elicit answer.24 There is a heavy reverse burden on an accused, and
the condition for the applicability of this burden and other related sections would have to be

18
Dharampal Singh v. State of Punjab, (2010) 9 SCC 608.
19
Union of India (UOI) v. Sanjeev V. Deshpande, 2014 (II) Orissa Law Reviews (SC) 707.
20
Abdul Rashid Ibrahim Mansuri v. State of Gujarat, (2000) 18 Orissa Criminal Reports (SC) 512.
21
Section 35 of the Act
22
Section 35 of the NDPS Act
23
Amar @ Amarnath Nayak v. State of Orissa, (2018) 1 Orissa Law Reviews 562.
24
Abdul Rashid Ibrahim Mansuri v. State of Gujarat, (2000) 18 Orissa Criminal Reports (SC) 512.
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spelt out on facts. Effective discharge of the initial burden by the Respondent brought the
foundational facts and the culpability of the Appellant to the fore.25 The conviction of the
Appellant by the Judicial Magistrate of Special Court, Falgiri, and the subsequent affirmation
by High Court of Adisha happened due to the failure of the Appellant to discharge his reverse
burden.

2.1 PRESUMPTION OPERATES AGAINST THE APPELLANT

[¶17.] In order to raise a presumption under Section 54 of Act, the SC held that it must first
be established that a recovery was made from the accused.26 The words ‘knowing’ or
‘knowingly’ are used to indicate that knowledge as such must be proved either by positive
evidence or circumstantially before mens rea can be established.27 In the instant case, the fact
that recovery was effected from the Appellant not only from the spot of the arrest, but also
before the Executive Magistrate during personal search and seizure, incriminates the Appellant
and establishes the culpability as per Section 35 of the Act.

[¶18.] That the question whether the informant can be the investigating officer or police officer
is no longer res integra.28 Once possession of the contraband substance is established, the
accused is presumed to be guilty of the offence, in view of the presumption under Section 54
of the Act and therefore the concurrent findings of the lower Courts warrant no further
interference.

[¶19.] In the case of Megh Singh v. State of Punjab29, the SC held that the possession can be
both physical and constructive in nature, and once possession is established by the prosecution,
the person who claims that it was not a conscious possession, has the onus establish it. In light
of the above decision, the burden shifted to the Appellant to prove beyond reasonable doubt
that the contraband article seized was not under his conscious possession. The Appellant’s
failure to discharge the aforesaid presumption resulted in the conviction by the Judicial
Magistrate of Special Court, Falgiri, which was rightfully upheld by the High Court of Adisha.

25
Noor Aga v. State of Punjab, (2008) 16 SCC 417.
26
Sanjeet Kumar Singh @ Munna Kumar Singh v. State of Chhattisgarh, 2022 LiveLaw (SC) 724.
27
Raghunath Singh v. State of Madhya Pradesh, 1967 Mah LJ 575.
28
Mukesh Singh v. State (Narcotic Branch of Delhi), (2020) 10 SCC 120.
29
Megh Singh v. State of Punjab, AIR 2003 SC 3184.
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[¶20.] Once possession is established, the person who claims that it was not a conscious
possession has to establish it, because presumption operates against him and how he came to
be in possession is within his special knowledge. Section 35 of the Act gives a statutory
recognition of this position because of the presumption available in law.

[¶21.] Section 35 of the Act recognizes that once possession is established, the Court can
presume that the accused had a culpable mental state, meaning thereby conscious possession.
Further, the person who claims that he was not in conscious possession has to establish it
beyond reasonable doubt. Presumption of conscious possession is available under Section 54
of the Act, which provides that accused may be presumed to have committed the offence unless
he satisfactorily accounts for the possession of the contraband. 30

[¶22.] In the case of Kunal Dattu Kadu v. Union of India31, the Bombay HC held that it is
implied that if seeds and leaves of cannabis plant are accompanied by flowering tops or fruiting
tops, then it would amount to Ganja. When the seeds and leaves are not accompanied by the
tops, then it will not be considered as Ganja. In the instant case, the personal search and seizures
conducted before the Executive Magistrate brought to light the fruits and flowers of a cannabis
plant, locally known as Ganja, which is a contraband article as per the NDPS Act.32 Therefore,
the accused and the Appellants were found in conscious possession of the fruits and flowers of
Ganja. 33

[¶23.] Presumption shall be drawn against the accused unless and until the contrary is
proved.34 The expression ‘unless and until the contrary is proved’ clearly imposes the burden
of proving that possession of prohibited substance is legal on the accused himself, and the
failure to discharge that burden rightfully resulted in conviction.

[¶24.] In the case of Raju Premji v. Customs, NER, Shillong Unit35, the SC held that even if
confession is made under the NDPS Act, the same may not be hit by Section 25 of the Evidence

30
Dehal Singh v. State of Himachal Pradesh, (2010) 9 SCC 85.
31
Kunal Dattu Kadu v. Union of India, 2022 SCC OnLine Bom 1770.
32
¶6 of the Moot Proposition.
33
¶6 of the Moot Proposition.
34
Section 54 of the NDPS Act.
35
Raju Premji v. Customs, NER, Shillong Unit, (2009) 16 SCC 496.
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Act36 provided such a confession should be strictly scrutinised by court as to whether it was
made voluntarily or under compulsion, threat or inducement. If the court believes that none of
the offending criteria is present, then the confession can be taken into consideration.

[¶25.] Once possession is established, the reverse burden puts the onus on the accused to prove
his innocence. In the case of Amal Das v. State of Assam37, the Guwahati HC held that the
recovery or seizure of contraband is not a sine qua non for arrest, detention or conviction under
the NDPS Act if there are other convincing and corroborating materials. In the instant case, the
contraband material was taken into possession right when the possession was established and
by duly complying with the statutory provisions, the personal search and seizure was
conducted.

[¶26.] The Respondent humbly argues that in the face of the mandate of Sections 35 and 54
of the Act, it shall be presumed that the accused committed an offence under the Act if found
in possession of the contraband substances and the burden lies on the accused to disprove it.
The recent jurisprudence has been to cancel and set aside anticipatory bails granted in NDPS
cases in the face of the mandate of Section 35 of the Act as well as due to the grave nature of
the offence. 38

ISSUE III: WHETHER THE CONVICTION WARRANTS FURTHER INTERFERENCE ?

[¶27.] The Respondent humbly submits that the conviction of the Appellant by the Judicial
Magistrate of Special Class, Falgiri, and the subsequent affirmation by the High Court of
Adisha does not warrant further interference by the SC of the United States of Indus.

[¶28.] The proper way to approach a case is, first to marshal the evidence against the accused
excluding the confession of the other co-accused and see whether, if it is believed, a conviction
could safely be based on it. If it is capable of belief independently of the confession, then it
would not be necessary to call the confession in aid. But cases may arise where the judge would
not be prepared to act on the other evidence as it stands, even though, if believed, it would be

36
Section 25 of the Evidence Act.
37
Amal Das v. State of Assam, 2022 SCC OnLine Gau 764.
38
Union of India (NCB) v. Khalil Uddin, 2022 LiveLaw (SC) 878 CrA 1841-1842/2022.
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sufficient to sustain a conviction. In such an event, the judge may call in aid the confession and
use it to lend assurance to the other evidence and thus fortify himself in believing what without
the aid of the confession he was not prepared to accept initially. 39

[¶29.] The decision in the case of Kashmira Singh case was approved by a Constitution Bench
of the SC in Hari Charan Kurmi v. State of Bihar40. A trial court cannot start with the
confession of a co-accused person, as it must begin with other evidence adduced by the
prosecution. However, after it has formed its opinion with regard to the quality and effect of
the said evidence, then it would be permissible to turn to the confession of the co-accused in
order to receive assurance to the conclusion of guilt.

[¶30.] It is a settled position of law that liberal approach in the matter related to the narcotic
drugs and psychotropic substances is uncalled for.41 The Respondent humbly submits that it
should be borne in mind that in a murder case, the accused commits murder of one or two
persons, while those persons who are dealing in narcotic drugs are instrumental in causing
death or in inflicting death−blow to a number of innocent young victims, who are vulnerable
as these substances cause deleterious effects and leave a deadly impact on the society; they are
a hazard to the society. If these persons are released even temporarily, in all probability they
would continue their nefarious activities of trafficking and/or dealing in intoxicants.42

[¶31.] The Odisha HC in the case of in the case of Herasha Majhi v. State of Odisha43, held
that conviction of the accused can solely be based on the testimony of official witnesses
provided such evidence is reliable, trustworthy and inspires confidence. There is no command
of law that the testimony of the police officials should always be treated with suspicion. Based
on the principle that quality of the evidence weighs over the quantity of evidence, courts should
not disbelieve the evidence of police officials solely on the presumption that a witness from
the department of police should be viewed with distrust.

39
Kashmira Singh v. State of Madhya Pradesh, AIR 1952 SC 159.
40
Hari Charan Kurmi v. State of Bihar, (1964) 6 SCR 623.
41
State of Kerala v. Rajesh, AIR 2020 SC 721.
42
Union of India v. Ram Samujh and Ors, (1999) 9 SCC 429.
43
Herasha Majhi v. State of Odisha, (2020) (I) Orissa Law Reviews 39.
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[¶32.] If the evidence of the official witnesses which is clear, cogent, trustworthy and above
reproach, is discarded just because the independent witnesses did not support the prosecution
case, it would be an impossible task for the prosecution to succeed in a single case in
establishing the guilt of the accused.

[¶33.] In the instant case, the manner in which the Ganja was transported and the presence of
the Appellant with the other accused near the motorcycle and scooty and the prevaricating and
and incriminatory statements made by the other accused during their arrest relating to the Ganja
bags, proved the possession beyond reasonable doubt and hence the presumption under Section
54 automatically came into operation.

[¶34.] All material evidences were taken into consideration, and the conviction was made by
the Judicial Magistrate of Special Court, Falgiri because the Appellant failed to discharge the
reverse burden imposed on him. As the arresting officer was also an informant in the instant
case, 44 conviction was rightfully done based on his statements. If the informant himself is the
investigator, by that itself it cannot be said that the investigation is vitiated on the
ground of bias or the like factor. The question of bias or prejudice would depend upon the facts
and circumstances of each case.45

[¶35.] The Respondent humbly submits that if the courts on appraisal of the entire evidence
do not entertain doubt of a reasonable degree that he had real knowledge and possession of the
nature of the substance recovered, then the appellant is not entitled to seek an acquittal. If the
courts entertain strong doubt regarding the accused’s awareness about the nature of the
substance, it would not be proper to convict him of the offence keeping such strong doubt
dispelled. However, even then, it is for the accused to dispel any doubt in that regard. Failure
to discharge that burden would fail to vindicate the accused.

[¶36.] In the present case when all previous accusations against the Appellant and attending
circumstances46 are cumulatively viewed, provision of Section 43(b) of the NDPS Act also got
attracted to say that one was the companion of another or in company and that also leads to
drawing a presumption under Section 54 of the Act.

44
Clarification 8.
45
Mukesh Singh v. State (Narcotic Branch of Delhi), (2020) 10 SCC 120.
46
Moot Proposition, Paragraph 2.
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[¶37.] While determining the offence and punishment under the Act, various factors are to be
taken into consideration like the quantity of the contraband, nature of the substance, nature of
involvement, antecedent character etc. In the case at hand, the Appellant has committed
violations of Sections 20(b) (ii) (C), 25 and 27A of the NDPS Act and the quantity involved
was a commercial quantity.

[¶38.] Since the conviction in the instant case happened as a result of material evidences and
the statements of other accused, coupled with the failure of the Appellant to discharge his
burden to prove his innocence, merely because of a testimony of the arresting officer, by that
itself the investigation would not suffer the vice of unfairness or bias. Therefore, on the ground
that the informant is the investigator, the Appellant is not entitled to acquittal.

[¶39.] Offences under the NDPS Act are part of an organized crime wherein different roles
are played by different accused persons. Even though incriminating articles were not found,
the participation by acts of such persons, who have acted in concert formed the basis of
investigation and subsequently led to conviction in trial. All the accused form a part of a larger
chain, nexus and their involvement in financing for and selling the contraband materials to
commit illegal acts and violations under Section 29. In such situation, keeping the final
objective of financing for the said contraband in mind, the quantum of recovery and the
presence of incriminating articles becomes inconsequential, due to the stringent statutory
provisions against the accused.

[¶40.] The SC and various high courts in a plethora of judgements have observed that the
offences under the NDPS act are heinous in nature and the substances can affect an entire
generation of the youth.47 Considering the law, coupled with the facts of the case, as well as
statements made by the other accused persons as well as the testimony made by the arresting
officer, Judicial Magistrate of Special Court, Falgiri convicted the Appellant and the High
Court of Adisha rightfully upheld the conviction. The very object of the NDPS Act is to curb
the menace of drugs and its ill effects on the society which has the propensity to destroy the
generation as a whole. Therefore, the Respondent humbly submits that in view of the facts,
contentions, and the rightful conviction, the plea of the Appellant is liable to be dismissed in
toto.

47
Raj Kumar Karwal v. Union of India, (1990) 2 SCC 409.
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ISSUE IV: WHETHER CCTV FOOTAGE CAN B E ADMITTED AS EVIDENCE?

[¶41.] Black’s Law Dictionary, defines evidence as something that tends to prove or disprove
the existence of an alleged fact. The gathering, conservation, communication and presentation
of the digital evidence must fulfil legal requirements for the admissibility of the evidence.48
Electronic evidence which has been collected during investigation that is not in conformity
with the law would be declared inadmissible and be ruled out of court.

[¶42.] The complete code for authenticating electronic evidence is in Sections 65-A and 65-B
of the Evidence Act. The SC in Anvar P.V. v. P.K. Basheer49 held that the purpose of Section
65-B is to sanctify secondary evidence in electronic form, generated by a computer. The very
admissibility of such computer output depends on the satisfaction of the four conditions under
Section 65-B (2).

[¶42.] In the case of Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke50, the SC
relied upon the principle that without a credible source, there is no authenticity involved. In
case of electronic evidence, source and authenticity are the two most important factors
involved. Non-compliance with Section 65B of the Evidence Act can lead to the inadmissibility
of such evidence. In the case of Jagdeo Singh vs. the State and Ors.51, the Delhi HC held that
without a certificate under Section 65B of the Evidence Act, a secondary evidence was
inadmissible.

[¶43.] In Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal52, the SC held that
Section 65-B (4) is a mandatory requirement to admit electronic evidence unless the original
electronic document is produced in evidence through the document or device owner’s personal
authentication as a witness. In cases where the “computer” happens to be a part of a “computer
system” or “computer network” and it becomes impossible to physically bring such system or
network to the Court, then the only means of providing information contained in such electronic
record can be in accordance with Section 65B(1), together with the requisite certificate under
Section 65B(4).

48
Olivier Leroux, Legal admissibility of Electronic Evidence, 18 IRLCT. 193, 202 (2004).
49
Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473.
50
Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke, MANU/SC/0040/2015.
51
Jagdeo Singh v. the State and Ors, 2015 SCC OnLine Del 7229.
52
Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1.
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[¶44.] In Ravinder Singh @ Kaku v. State of Punjab53, the SC reaffirmed the decision of Arjun
Panditrao and held that the certificate under Section 65B(4) of Evidence Act is mandatory to
produce electronic evidence and that the oral evidence in the place of such certificate cannot
possibly suffice.

[¶45.] The Respondent humbly submits that any information contained in an electronic record,
is deemed to be a document and is admissible in evidence without further proof of the original’s
production provided that all conditions set out in Section 65B of Evidence Act are satisfied.
Non-compliance with this provision renders the evidence inadmissible.

[¶46.] The conditions necessary for admitting electronic evidence based on a certificate have
been explained in detail by the SC.54 There must be a certificate which identifies the electronic
record containing the statement. The certificate must also describe the manner in which the
electronic record was produced and furnish the particulars of the device involved in the
production of that record. It must also be signed by a person occupying a responsible official
position in relation to the operation of the relevant device.

[¶47.] Though electronic devices are susceptible to tampering, no exhaustive rule can be laid
down by which the admission of electronic evidence may be judged.55 Standard of proof of its
authenticity and accuracy has to be more stringent than other documentary evidence.56 It was
held that the certificate required under Section 65B (4) is a condition precedent to the
admissibility of evidence by way of electronic record.57

[¶48.] The Respondent humbly states that all digital evidence presents the possibility of
alteration or fabrication. From an evidentiary standpoint, a traditional authentication
foundation, however minimal, likely will suffice for admissibility. 58 It can be observed that
admissibility of a document is one thing and its probative value is quite another and these two
aspects cannot be combined. 59

53
Ravinder Singh @ Kaku v. State of Punjab, 2022 LiveLaw (SC) 461.
54
Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473, at page 484.
55
State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600.
56
Tukaram S. Dighole v. Manikrao Shivaji Kokate, (2010) 4 SCC 329.
57
Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Others, 2020 SCC OnLine SC 571.
58
Fredric Lederer, The New Courtroom: the Intersection of Evidence and Technology; Some Thoughts on the
Evidentiary Aspects of Technologically Produced or Presented Evidence, 28 SWUL. 1, 5 (1999).
59
State of Bihar v. Sri Radha Krishna, (1983) 2 SCR 808.
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[¶49.] Strict compliance with Section 65B is now mandatory for admissibility of any
electronic record in a civil or criminal trial before the courts in India. Failure with such
compliance can lead to the inadmissibility of the evidence. 60 In the instant case, the Appellant’s
electronic evidence was rejected by both the Judicial Magistrate of Special Court, Falgiri, and
the High Court of Adisha, due to non-compliance with Section 65B of the Evidence Act.

[¶50.] Thus it is clear that where primary evidence in electronic form has been produced, no
certificate under Section 65B would be necessary. 61 In the present case, this requirement is not
fulfilled and thus the plea of electronic evidence was rejected by the Judicial Magistrate of
Special Court, Falgiri, and the High Court of Adisha.62 Therefore, the Respondent humbly
submits that in view of the facts, contentions, and the rightful conviction, the plea of the
Appellant is liable to be dismissed in toto.

60
Anvar PV v. PK Basheer & Ors, (2014) 10 SCC 473.
61
Vikram Singh and Anr. v. State of Punjab and Anr., (2017) 8 SCC 518.
62
Moot Proposition, Para 8.
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PRAYER

Wherefore, in light of the facts stated, issues raised, arguments advanced and authorities cited,
the Counsel for the Respondent humbly prays to:

1. Uphold the order of conviction of Mr. Arav Sahoo passed by the High Court of Adisha
and dismiss the present appeal with costs.

And/or to pass any other order or orders as this Hon’ble Court deems fit and proper in the
circumstances of the given case and in the light of justice, equity and good conscience and thus
render justice.

All of which is most humbly and reverently submitted.

S/d- _______________________

COUNSEL FOR THE RESPONDENT

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